PUBLIC PROSECUTOR Vs. SHAIK SHERIFF

JUDGEMENT

(1.) In special cases Nos. 1 and 2 of 1962 , which were pending on the file of the Assistant Sessions Judge, Cuddapah (special Judge) Shaik Sheriff, who had originally been Municipal Commissioner of Proddatur, was the sole accused. The State represented by the Inspector of Police, Crime Branch, C . I. D. Hyderabad was the complainant. In each of the charge-sheets, it was mentioned that the accused had committed offences under S.5(2) read with Section 5(1)(c) and (d) of the Prevention of Corruption Act (Central Act II of 1947 ) (hereinafter referred to as the Act). The accused filed Cr. M. P. No. 139 of 1962 praying for being discharged in S. C. No. 1 of 1962. He filed a similar petition, Crl. M.P. No. 1. of 1962, praying for being discharged in S. C. No.2 of 1962. The learned Assistant Sessions Judge (Shri P. Anjaneya Raju), after full hearing, allowed the two petitions and passed a common order dated 12-9- 1962 discharging the accused under Section 251 -A (2) Crl. P. C. Against that order, the learned Public Prosecutor has filed Crl. R. C.. No. 712 of 1962 and Crl. R. C. No. 713 of 1962 so far as it relates to the discharge in S. C. No. 2 of 1962 . Both the revision petitions, being against a common order, were heard together by common consent.

(2.) The relevant facts are as follows: The accused was working as the commissioner of the Proddatur Municipality during the period 30-9-1956 to 10-4-1958 and was a Public Servant" as defined in S. 21 I. P. C. The Secretary to Government preferred a complaint against the accused to the Inspector General of Police Andhra Pradesh. The Circle Inspector of Police Crime Branch, C. I. D. Hyderabad, applied to the Judicial First Class Magistrate, Proddatur buy a letter dated 2-3-1959 requesting for permission to investigate into the offence which came under S. 5(1) of the Act. In that letter, he mentioned that, on a complaint preferred by the Municipal Commissioner, Proddatur (who was a successor of the shroff for misappropriation of one of the items mentioned in the complaint against the present accused, a case had been registered y the local Polices Proddatur in Crime No. 431 of 1958 under section 408 I.P. C. of Proddatur I town Police Station and was under investigation. The learned judicial First Class Magistrate passed an order dated 4-3-1959 authorising the Inspector of Police to investigate into the said offence. The case was duly investigated. Subsequently, the Government of Andhra Pradesh passed G.O. Ms. no. 543 dated 19-4-1960 for institution of Criminal Proceedings against the accused and ordered that he be tried in a Court of Law of competent jurisdiction. The G.O. has also stated as follows: "Separate orders will issue regarding the appointment of a Special Judge for the purpose under section 6 of the Criminal Law Amendment Act, 1952". Accordingly Government passed G. O.. Ms. No. 2242 Home (Courts-B) dated 27-10-1960 stating as follows: "In exercise of the powers conferred by sub-section(1) of section 6 of the Criminal Law Amendment act, 1952(Central Act 46 of 1952), the Governor or Andhra Pradesh hereby appoints the Sub Judge, Cuddapah to be a Special Judge for the trial of the cases against Shri Shaik Sheriff, ex-Municipal Commissioner, Proddatur and Sri D. Venkateswarlu, formerly Head Master, Government Basic Training School, Aluru". This G. O. was duly published as a notification. The Inspector of Police, Crime Branch, Hyderabad filed two charge sheets on 25-11-1960 before the Special Judge, Cuddapah referred to above. The learned Special Judge registered them as C. C. Nos. 1 and 2 of 1960 and proceeded to hear the cases. Accused filed Cri. R. C. Nos. 109 and 110 of 1961 in this Court to quash the proceedings of the Special Judge. Our learned brother, Kumarayya, J., heard those petitions and passed a joint order dated 12-8-1961 holding that the original of G. O. of appointment was invalid and that proceedings started by the Special Judge were vitiated. He allowed the Crl. R. Cs. and quashed the proceedings in C. C. Nos. 1 and 2 of 1960. Meanwhile the Government passed G. O. No. 595 (Home) Courts-B dated 25-3-1961 and duly notified it. The G. O. ran as follows: "..............the Governor of Andhra Pradesh hereby appoints the District and Sessions Judges and the Sub Judges-cum-Assistant Sessions Judges mentioned in column 1 of the Table below as Special Judges to try the offences mentioned in section 6 and 7 of the said Act (Criminal Law Amendment Act, 1952) in respect of cases arising in the District noted in column 2 of the table and investigated by the Anti Corruption Bureau of Andhra Pradesh. This was also duly published as a notification. It was brought to the notice of Kumarayya, J., during the hearing of Crl. R. C. Nos. 109 and 110 of 1961 that G. O. No. 253 of 1961 had been passed appointing the same Judge as Special Judge for cases coming from Cuddapah District and that the defect alleged in G. O. No. 2242 of 1960 had been cured. Thereupon, the learned Judge (Kumarayya, J.) observed as follows: "................ But, when it is clear that whatever the Assistant Sessions Judge has done in taking cognizance of the cases and framing charges without any lawful authority, those proceedings cannot be allowed to stand. Of course, it may still open to the prosecution to start proceedings afresh. But that foes not mean that previous proceedings started without any lawful authority, will gain any legal efficiency." After the above judgment was passed, the Special Judge, Cuddapah returned the chargesheets in C. C. Nos. 1 and 2 of 1960 to the complainant on 26-9-1961 and closed the cases. Subsequently, the Government passed G. O. Ms. 281 dated 12-2-1962 amending G. O. No. 595 of 1961 as follows: "In the preamble to the said notification, the words "And investigated by the Anti Corruption Bureau of Andhra Pradesh" occurring at the end shall be omitted." This G. O. was duly notified. Later on the quoting G. O. No. 595 of 1961 and G. O. No. 281 of 1962. The learned Special Judge numbered the cases as S. C. Nos. 1 and 2 of 1962 afresh and started proceedings. Accused then appeared in Court on 6-8-1962 raising various grounds. The three main grounds raised by him were as follows : (i) (a) the constitution of the Court as a special Judge under Act 46 of 1952 was not valid because G. O. No. 595 of 1961 was invalid; and (b) the amendment G. O. No. 281 of 1962 was invalid as Government had no power under S. 6 of the Criminal Law Amendment Act to make the said amendment; (ii) the court could not validly take cognizance of the two charge sheets as there was no fresh sanction by the Government; and (iii) the investigation of the cases by the Inspector of Police, Special Branch was not in accordance with law as it had not been done with valid sanction required under S. 5-A of the Act. The learned Special Judge accepted all these contentions as tenable. In the result, he passed the order of discharge under S. 251-A (2) Cr. P. C. He held that the other grounds raised in the petitions did not bear any substance and did not deserve or require to be considered. When these revision cases came up for hearing before our learned brother, Mohammed Mirza J. he passed an order dated 5-8-1963 as follows: "In these revision cases, a question arises as to the interpretation of the word person used in S. 6 (2) of the Criminal Law Amendment Act. 1952. These revision cases are therefore referred to a Branch for decision." In consequence, these cases came to be heard by this Bench.

(3.) The main contention raised by the learned Public Prosecutor are as follows: (a) The assumption of the learned Special Judge that notification of the learned Special Judge that notification of G. O. No. 595 of 1961 was bad is baseless and wrong. (b) The finding by the learned Special Judge that the amendment G. O. No. 281 of 1962 was invalid was untenable because S. 21 of the General Clauses Act (Central Act X of 1897) gave power to make amendments. 2. The sanction already made by the Government was in force and there was no need for a fresh sanction as held by the learned Special Judge. 3. The order of the Magistrate authorising investigation by Inspector of Police was valid and effective and did not contain any incurable defect which could not be rectified or any omission which could not be supplied by admissible evidence properly adduced during the trial.