MEHMOOD BEG Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) MR . Ugamraj Bhandari was posted as Additional Sessions Judge, Banswara, on October 6, 1969 Prior to that he had been working as Addl. Sessions Judge, Jhalawar. At Jhalawar he had been trying case No. 101/ 1968 (criminal), State v. Chatra, Mehmood Beg and Ors. under Section 302/109, I.P.C. That case could not be finalised at Jhalawara prior to Mr. Bhandari's transfer. He had, however, heard a part of arguments in that case on October 23, 1969. Thereafter the case had been fixed for hearing the arguments left over on October 28, 1969. On October 23, 1969, Mr. Bhandari went away from Jhalawar to Banswara. The prosecution story is that on Oct. 26, 1969, appellant Mehmood Beg, resident of Cherdia, District Kota, went to the bungalow of Mr. Bhandari at Banswara at 11.45 A M. There he first contacted Mr. Bhandari's son, Mr. Om Prakash (aged 18 years). He asked him as to where his brother Vijaya was. Mr. Om Prakash told him that he was not in his house. Thereafter Mehmood Beg asked Mr. Om Prakash to arrange his meeting with Bhandari. He was allowed to enter the room in which Mr. Bhandari was sitting on a cot. Mr. Om Prakash also followed the accused. Mahmood Beg at first paid respects to Mr. Bhandari, he sat on the floor and started talking to the Additional Sessions Judge about his case. Soon after the appellant took out a bundle of currency notes, wrapped in a plastic cover, and offered the same to Mr. Bhandari as a bribe in the presence of Mr. Om Prakash Mr. Bhandari having smelt bad intention on the part of the appellant got up from the cot and after going aside he in a low tone asked his son Mr. Om Prakash to call the Station House Officer, Police Station, Banswara. Mr. Om Prakash telephoned to the Station House Officer, but he was not available at the Police Station Thereafter Mr. Om Prakash tried to contact Deputy Superintendent of Police, Banswara, but he too was not present at the headquarters. Mr. Bhandari then wrote a report and gave it to Mr. Om Prakash to fair it out. Mr. Om Prakash did so. Thereafter he at the instance of his father gave that report to the Superintendent of Police Mr. Shyam Pratap Singh Rathore (P W 5) at his residence. The report is marked Ex. P/1. On this communication the Superintendent of Police reached Mr. Bhandari's residence He saw Mehmood Beg sitting in Mr. Bhandari's room. The document Ex. P/1 was sent that very day at about 12.30 P.M. by the Superintendent of Police to P.W. 6 Jeetmal, Head Constable, (sic)charge Police Station, Banswara, through his driver. On receipt of the first information report Jeetmal, after having obtained sanction (Ex P/4) for undertaking investigation in the case from the Sub -Divisional Magistrate, Banswara, arrived at the spot along with some police constables. He seized the currency notes, wrapped in a plastic cover and lying on the Judge's cot. The currency notes were of the following denominations

(2.) AGGRIEVED by the above verdict, Mehmood Beg has taken the present appeal. By Section 3, Prevention of Corruption Act offence under Section 165A was declared to be a cognizable offence. Section 5 -A of the Act provides that no Police Officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 165A, I.P.C. without the order of a Magistrate of the First Class Learned Counsel for the appellant submitted that P.W. 6 Jeet Mal, Police Head Constable, Banswara, had no power to investigate the case. The sanction, which he had obtained from the Sub -Divisional Magistrate, Banswara, is not of any consequence as the full facts of the case had not been brought to his notice. In this connection it may be stated that from the evidence of P.W. 1 Mr. Ugam Raj Bhandari, P.W. 2 Mr. Om Prakash, and P.W. 5 Mr. Shyam Pratap Sing's Rathore, Superintendent of Police, Banswara, it is evident that neither Deputy Superintendent of Police nor Station House Officer, Police Station, Banswara, was available at the headquarters. The matter being urgent, Head Constable Jeet Mal approached the Sub -Divisional Magistrate and submitted to him a report Ex. P/6, stating therein that as his senior officer was not available and as he was not authorised to investigate the case and he being In charge of the Police Station then, permission should be accorded to him to register the case and take over its investigation On this report the Sub -Divisional Magistrate, Banswara, passed the following order:

(3.) IN this case it was distinctly mentioned by Jeet Mal in his report Ex. P/6 that as no senior officer was available at the Police Station, he should be accorded permission to investigate the case, specially under the circumstance that it was he alone who was at the moment in charge of the police station. These reasons, in my opinion, were sufficient to enable the Magistrate to give permission, to Jeet Mal in accordance with the provisions of Section 5 A of the Prevention of Corruption Act, 1947. The accused also did not raise any objection in regard to illegality in the investigation in the course of his trial, nor has he shown any basis for raising an inference that he has been materially prejudiced because of the alleged illegality or irregularity in the investigation of the case. Keeping in view the above background, it is difficult to conclude that the convention of the appellant cannot be maintained because the investigation had been carried by a police officer below the rank of a Deputy Superintendent of Police, as no prejudice has been shown to have been caused to the appellant.