NARAIN LAL SAINI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) An extremely interesting question has been raised in this case which though has been concluded by the decision of their Lordship of the Honourable Supreme Court, in the case of Abhinandan Jha and ors. Vs. Dinesh Mishra, 1968 AIR (S.C.) 117 yet requires to be decided for further clarification of the Sub-ordinate Court, in such circumstances, which are not wholly covered by the aforesaid decision of their Lordships.

(2.) Briefly stating the facts leading to this petition are that a report was lodged on 21st Sept., 1982, by one Mahadev Gujar, with the Anti Corruption Department, that for de-marcating the boundary of an agricultural land, bribe is demanded jointly by the Girdavar, who was petitioner at that time and the Patwari, was co-accused. A trap was arranged and tainted money was recovered. Patwari Moolchand, co-accused had accepted the amount and thus, he was arrested. Since the money was recovered from the plastic bag which was containing shaving material and was belonging to the petitioner, he too was arrested and investigation commenced against both the persons. The Investigation Officer the ACD did not find any case against the petitioner as in his opinion, there was no evidence regarding passing of the currency notes to him or over hear any such dialogues between the decoy and the co-accused that the petitioner was also to share the bribe money and, therefore, a report under Sec. 169 Crimial P.C. reporting to be a final report was submitted before the learned Judge, of the A.C.D. The learned Judge, did not agree with the final report submitted by the A.I.I. and passed an order that the final report cannot be accepted under the circumstances of the case and the file may be placed before the Competent Officer, for granting sanction to prosecute the accused and on receipt of the sanction, a charge-sheet should be submitted. There-after, a charge-sheet was submitted against the accused by the police after obtaining the sanction which is challenged in this court by way of this petition, precisely on the ground that no jurisdiction is vested in the Court, express or implied to direct the police to submit the charge-sheet as information of the opinion by the police is the final investigation and it cannot be by any other authority.

(3.) Learned counsel for the petitioner, in support of his petition has relied on the case of Jauharimal & anr. Vs. The State of U.P. 1969 AIR (All) 241 , and also the case of Abhinandan Jha Vs. Dinesh Mishra 1968 AIR S.C. 117 . In the case from Allahabad, in a case of theft if telegraph wife, a report was lodged on which investigation was made by the police. Police, however, after investigation came to the conclusion that the time could not be worked-out and, therefore, submitted a final report. When the final report was placed before the learned Magistrate, he did not agree with the investigation & directed the police to do a fresh investigation and to submit a charge-sheet. As such the charge-sheet was subsequently submitted and on the basis of the charge-sheet, the Superintendent of Police also submitted a complainant as required under S. 7 of the Telegraph Wires (Un-lawful Possession) Act. A question was raised before the High Court, as to whether the Magistrate, had the jurisdiction to direct not only the re-investigation but to file a charge-sheet and what would be the position of the complainant submitted by the Superintendent of Police. The learned Judge, held that the Supdt. of Police, undoubtedly, had the authority to make the complainant of an offence committed within the meaning of Telegraph Wires (Un-lawful Possession) Act, but then he had to file the complainant on his own initiative. It may be that before filing the complainant the S.P. could have validly required an investigation to be made by the police and to act upon that investigation and to proceed with the complainant filed on the basis there-of.