VITHOBA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) NOW all this criticism requires a serious consideration. It must be pointed out that the offence contemplated by Section 165-A of the Indian Penal Code is by its very nature a serious one and every care must be taken that the same is properly and thoroughly investigated. If merely the word of a public servant has to be acted upon without anything more, the very purpose for which special provisions as to investigation have been made are likely to be rendered nugatory. It is not unlikely that persons going with the ostensible purpose of selling tickets for their own cause to the citizens at large, may be motivated by various and extraneous reasons for making allegations against them. Every care, therefore, must be disclosed by the authority charged with the statutory duty of investigating an offence of this kind to remove all traces of doubts about such matters and further put every material before the Court which will enable it to come to only one conclusion about the culpability or the guilt of the accused.

(2.) PROVISIONS of Section 5-A of the Prevention of Corruption Act, 1947, deal with investigation into the cases for the offences including the one under Section 165-A of the Indian Penal Code and in express terms prohibits the police officer below the rank of a Deputy Superintendent of Police as in the present case, to investigate into it. If such a police officer is required to investigate, he has to do so after obtaining the order from the Magistrate mentioned in the section. He has also to effect arrests after taking the order. This provision in Section 5-A and the provisions of the Code of Criminal Procedure pertaining to investigation have been considered by the Supreme Court authoritatively, and it has been pointed out what are the steps such investigation would constitute. In H. N. Rishbud v. State of Delhi it was pointed out that proper investigation by an appropriate police officer was the normal preliminary to the trial in respect of such offences. While explaining the scheme of the Code of Criminal Procedure and the investigation, the Court pointed out that it consisted of taking following steps:

(3.) IN Sailendranath Bose v. State of Bihar AIR 1968 SC 1292 : 1968 Cri LJ 1484, it was observed that the provisions of Section 5-A must strictly be complied with for they are conceived in public interest and are provided as a guarantee against frivolous and vexatious proceedings, that a Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission and he must also be satisfied that there is a reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It is desirable that the order giving permission should ordinarily on the face of it disclose the reasons for giving such permission. It may be mentioned that in Sailendranath's case, the order did not state the reasons and the learned Magistrate had merely written permission granted. In the application filed for seeking permission, no special reason for permitting him to investigate was disclosed. With reference to these facts, the Court observed:. . . It is surprising that even after this Court pointed out the significance of Section 5-A in several decisions there are still some Magistrates, and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this Court. However, their Lordships did not interfere with the conviction by observing that the illegality in the investigation had not been challenged in the trial Court.