PARASNATH PANDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These applications have been made by original accused Nos. 1 and 2 respectively under section 561-A Criminal Procedure Code for quashing the proceedings that are going before the Special Judge, Greater Bombay. The few facts, that are necessary for deciding the points that were urged o behalf of the applicants, may be set out as follows: Accused No. 2 is the Head master of a municipal school known as the Lower Parel Municipal Hindi School, and accused No. 1 is an Assistant teacher in the same institution. The son of one Rajaram Jadhav had passed the first standard in the said school and in the ordinary course, he would have been promoted to the second standard. It appears that accused Nos. 1 and 2 gave a promiss to Rajaram that accelerated promotion would be granted to his son and instead of promoting him to the second standard, he would be given a jump and promoted to the third standard. For that purpose, they demanded a bribe of RS. 20. Rajaram filed a complaint to the Anticorruption Bureau, Bombay on 10th September, 1958, and his statement was recorded by Police Sub-Inspector Patil and was treated as first information in the case. The same day, Police Sub-Inspector Patil made an application to the Presidency Magistrate, 16th Court, for permission to carry on investigation into the offence. In that application, he had asked for permission being granted to the "undersigned as well as to the officers and men of this Bureau". The learned Magistrate passed a laconic order in the following terms: "Permission granted". Thereafter, Sub-Inspector Patil proceeded to arrange a trap and in that trap, accused No. 1 accepted a bribe of Rs. 20. But, at the same time, be told the investigating officer that he demanded the bribe of and on behalf of accused No. 2. Therefore, a second trap was arranged and in the course of that trap, accused No. 2 accepted a sum of 20. In his house in the presence of accused No. 1. The sanction of the Municipal Commissioner was sought and was obtained on 19th February, 1959. Thereafter, charge-sheet was submitted to the then Special Judge Cosewade under the signature of the Inspector of Police Anticorruption Bureau. Cognizance was taken by Mr. Gosewade and process issued to the accused. The case came up for hearing on 9th August, 1960, and on that day a charge was framed under section 161 and 165 Indian Penal Code against accused No. 1 and under Section 161, Indian Penal Code against accused No.2. Preliminary objection was taken contending that the sanction granted by the Presidency Magistrate, 16th Court was not valid and, therefore, Sub-Inspector Patil had no authority to carry on the investigation. In order to meet this objection, Mr. Mahimtura, the Presidency Magistrate, 16th Court, was called to give evidence. Accordingly on 8th November, 1960, Mahimtura appeared in the witness box but he refused to give evidence claiming privilege under section 121 of the Indian Evidence Act. The learned Judge, therefore, made a reference to the High Court for the issue of a direction to the said Magistrate to give evidence in the case. The reference came up before a Division Bench comprising Chief Justice Chainani and Justice Gokhale. The then Government Pleader suggested that the best course would be to order a fresh investigation by the Superintendent of Police as required by section 5-A of the Prevention of Corruption Act, 1947). Accused Nos. 1 and 2 were, at that stage, represented by Messrs. P.S. Nadkarni and H.R. Pardiwala respectively. The Division Bench accepted the suggestion put orward by he Government Pleader and directed that the case against the accused be reinvestigated by such Superintendent of Police as the Director of Anti-corruption Bureau, Bombay, may appoint in this behalf. In pursuance of the directions given by the High Court, the Special Judge referred the matter for re-investigation. It appears that one Shetye, Superintendent of Police, carried out the investigation afresh. We are told by Mr. V.H. Gumaste, Additional Government Pleader, that Shetye recalled the witnesses and recorded the statements afresh. Thereafter, he wrote a letter to the Special Judge on 22nd April, 1961, stating that the case was reinvestigated by him that all the witnesses were examined afresh and that from the evidence on record, it was clear offence punishable under section 161 read with section 34 Indian Penal Code. Along with the letter, he forwarded the papers of the re-investigation carried out by Sub-Inspector Patil. The case then came up before Judge Gatne and he framed the charges. At that stage again two preliminary objections were raised to the following effect :

(2.) These applications purport to have been made under section 561-A Criminal Procedure

(3.) We will take up these points one by one. So far as the power of the special Judge to take cognizance is concerned, we have, first of all, to consider the provisions of the Criminal Law Amendment Act of 1952. It is under the provisions of this Act that the Court of the Special Judge is constituted. So far as the Code of Criminal Procedure is concerned, criminal courts are broadly classified under two heads viz., Sessions Court and Magisterial Court. There is a third Court and that is the High Court, which is not relevant for the purpose of the present case. The Court of the Special Judge is not contemplated by the Code of Criminal Procedure. The Court of a Special Judge is a special creature of the Act of 1952 . The powers of the Special Judge flow from the provisions of the Act of 1952 and we have, therefore, to examine these provisions closely with a view to find out as to what are the powers and functions of a Special Judge. Sub-section (1) of section 6 of the Act of 1952 relates to the appointment of a Special Judge and provides: