STATE OF MAHARASHTRA Vs. SHANKAR BHAURAO KHIRODE

JUDGEMENT

(1.) THIS Criminal Reference raises a point of some importance as regards the jurisdiction of a Magistrate to take action on a report submitted to him under S. 173 of the Criminal Procedure Code, by a police officer after completing investigations with reference to offences which are exclusively triable by a Special Judge under S. 7 (1) of Criminal Law Amendment Act, 1952.

(2.) THE present reference has been made by the learned Sessions Judge, Ahmednagar in these circumstances: It appears that the Circle Police Officer, Rajur, investigated a case registered on the complaint of one Mr. Pahuja, Sub-Inspector of Po-Police, Rajur, against a Constable by name Khirode. It was alleged by the Sub-Inspector that the police constable attempted to give him Rs. 100/- as a bribe, to hush up a chapter case instituted against one Bhau Mohana. A trap was set for the police constable and when the amount of Rs. 100/- was being attempted to be given to the Sub-Inspector, it was attached in the presence of the panchas. A report was made with regard to this to the District Superintendent of Police, and the Circle Police Officer was ordered to investigate the matter with regard to this complaint. On investigation, the officer, however, came to the conclusion that the panchnama made by the complainant, Sub-Inspector, Rajur, about attaching notes from the police constable Khirode was false and the complaint was also false. In accordance with these findings, the Circle Police Officer submitted a report under S. 173 of the Criminal Procedure Code to the Judicial Magistrate, First Class, Akola, and it was requested that 'b' summary may be issued in respect thereof. The learned Magistrate issued a notice to the complainant, Sub-Inspector Pahuja, who submitted a detailed report. It was contended on behalf of the complainant that the panchnama made by him on 25-11-1956 with regard to the alleged offence was true, and the two panchas had subsequently gone back on their statements later on. On these allegations, the learned Magistrate considered the question whether there was proper ground for granting 'b' summary as prayed for in the final report of the Circle Police Officer. It was contended before the learned trial Magistrate, as a preliminary ground, that he had no jurisdiction to grant 'b' summary in respect of the offence under S. 5 of the Prevention of Corruption Act. That contention about jurisdiction was negatived, and the learned Magistrate came to the conclusion that his Court had jurisdiction to grant an appropriate summary which the investigation suggested. On the merits, the learned trial Magistrate came to the conclusion that he should not grant the 'b' type of summary which was sought by the Circle Police Officer, and that, under the circumstances of the case, it was proper to grant the 'a' type of summary. In accordance with these findings, he passed an order granting 'a' type of summary on the report. Against this order, there was an application for revision before the Sessions Court, which held that the learned trial Magistrate had no jurisdiction to pass orders on the report made by the police officer, as the offence in respect of which the report had been made was one exclusively triable by a Special Judge, and, therefore, the report under S. 173 of the Criminal Procedure Code for any type of summary could be made only to a Special Judge and not to any Magistrate. The learned Sessions Judge has, therefore, made this reference recommending to this Court that the order passed by the learned trial magistrate granting 'a' summary should be set aside as one passed without jurisdiction.

(3.) NOW, this reference came up for hearing before my learned brother, who ordered that it should be referred to a Division Bench, as it raised a point of some importance.