N RAJIAH Vs. STATE

JUDGEMENT

(1.) THE convicted accused who was tried along with another for the offences under Sec.420, I.P.C. and Secs.5(2) and 5(1) of the Prevention of Corruption Act, 1947 is the revision petitioner herein, challenging the impugned order passed by the learned Principal Sessions Judge, Chennai in Crl.M.P. No.4800 of 1996 in C.C. No.2 of 1972 dated 18.10.1996 for want of its correctness and legality.

(2.) BEING the second accused along with one Parthasarathy, the accused stood charged for the offences under Sec.420, I.P.C. and Secs.5(2) and 5(1) of the Prevention of Corruption Act in C.C.No.2 of 1972 on the file of the Principal Sessions Judge, Chennai. After the trial. It appears both the accused were acquitted, but however, in the appeal preferred to the High Court against the judgment of acquittal in Crl. Appeal No.360 of 1974 by the State, both were found guilty by this Court and accordingly convicted and sentenced to suffer rigorous imprisonment for a period of one year. The petitioner was in jail for about 30 days. Challenging the said verdict by this Court, Crl.Appeal No.362 of 1980 preferred by the petitioner before the Supreme Court of India ended in dismissal, but, however, the sentence awarded by this Court as stated above was modified by the Supreme Court to a period of three months by its order dated 28.9.1993. Even thereafter, a review petition filed before the Supreme Court was also dismissed on 13.12.1993. Thus the entire proceedings covered a total period of about 23 years commencing from 1970 to 1993. In the meantime, the Government of Tamil Nadu had occasioned to give remissions in furtherance of the exercise of the statutory power provided under Sec.432 of the Code of Criminal Procedure as well as the power vested under Art.161 of the Constitution of |ndia which resulted in three G.Os. passed viz., (1) G.O.Ms.No.279 dated 23.2.1992, (2) G.O.Ms.No.296 dated 20.2.1993 and (3) G.O.Ms.No.204 dated 23.2.1994 irrespective of the fact that investigation was done by the local police or some other agency and thereby provided the remissions in the sentence awarded against the persons found convicted.

(3.) THE respondent-Central Bureau of Investigation, constituted under the Special Police Establishment Act resisted the petition and filed a counter inter alia contending that the factual scenario of the case viz., the legal proceedings are stated to be correct which went to the extent of the dismissal of a writ petition filed on behalf of the revision petitioner in W.P.No.1564 of 1996, and that Sec.432, Cr.P.C. provides the benefit of remission in sentence only by the State and not by the Court of law as it was the administrative function of the executive. THErefore, the relief claimed upon the basis of the three Government Orders providing remission of sentence vest with only the Government in the List II of the Constitution of India and List III also. It was also contended further that Art.161 of the Constitution of India deals with corruption, and that the Prevention of Corruption Act, 1947 is not in List I and is traceable only to Entry (1) in List III, and that if the offence is against law within List I the State Government has no power to grant remission. It was also contended that as the petitioner was working as an Inspector in the Department of Industries and tried along with - One Parthasarathy for the offence under Sec.120-B read with 420, I.P.C. and Sec.5(2) read with 5(1)(d) of the Prevention of Corruption Act, as the case had been detected and investigated by the Anti Corruption Bureau of C.B.I, under the Special Police Establishment Act, the State Government does not have any command or authority over the C.B.I. It was also contended that since the offence under the Prevention of Corruption Act, 1947 falls under Entry (1) List III of Constitution of India whereby the State Government as well as the Central Government has concurrent jurisdiction to detect the case and charge the accused for offences committed by them under the Act, it cannot be said be said the relief asked for in the instant case can be granted by the Court of law. Even under Sec.435 of the Code of Criminal Procedure, while exercising the power in order to give the remission of sentence, the State Government has to act only after consultation with the Central Government in certain cases. THE powers conferred by Secs.432 and 433 upon the State Government to remit or commute a sentence in any case, where the sentence is for an offence (a) which is investigated by the Delhi Special Police Establishment (SPE) constituted under Delhi Special Police Establishment Act, 1946 or any other agency empowered to make investigation into an offence under any Central Act other than this Code or (b) which involved the misappropriation or destruction or damage to any property belonging to Central Government or (C) which was committed by a person in the services of the Central Government while acting or purporting to act in the discharge of his official duties shall not be exercised by the State Government except after consultation with the Central Government, by virtue of Sec.435 Cr.P.C. That would mean, the prior sanction has to be obtained by the State Government to remit the sentences against the petitioner, which was lacking in this case. THErefore, this petition is not at all maintainable and no relief as prayed for in the petition can be granted to the petitioner.