Madhya Pradesh High Court
Umesh Kumar Chaubey vs State Of Madhya Pradesh on 21 September, 1999
Equivalent citations: 2000CRILJ1760
Author: R.P. Gupta
Bench: R.P. Gupta
ORDER R.P. Gupta, J.
1. In this petition under Section 482, Cr.P.C. the petitioner approaches this Court against filing of a report under Section 173, Cr.P.C. against him by Special Police Establishment attached to Lokayukt Office, on behalf of the State of M.P. for alleged offence of being in possession, during the period of his office as Executive Engineer, Madhya Pradesh Electricity Board (1973 to 1996) to pecuniary resources and property disproportionate to his known sources of income which he cannot satisfactorily account for, punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988.
2. The only objection raised in this petition is that the investigation itself was unauthorized and without jurisdiction by the officers who conducted investigation, search and seizure. The officers in this case, undisputedly involved in search and investigation, were firstly; Shri S.K.S. Bisen, D.S.P. of Special Police Establishment and secondly Inspsector H.D. Mourya attached to the same organization. The investigation started with search warrant obtained from Special Judge, Raipur, from whom warrant of search was sought and the warrant of search was issued in favour of Shri Bisen on 6-5-1996 against this accused. According to the prosecution case, jewellery and documents about large properties in the name of accused and his wife and others were recovered and according to them the accused is source of the acquisition. All assets would be disproportionate to the tune of Rs. 22 lacs in comparison to his known sources of income. At the present stage we are not on the merits whether the assets were disproportionate or explanable as the learned counsel for the accused vehemently asserts that the known sources of income of this accused and his wife have been totally ignored by the investigating agency, but, that will be another aspect which is not to be gone into at this stage.
3. The main contention of learned counsel for the petitioner is based on second proviso to Section 17 of the Prevention of Corruption Act, 1988 (for short the 'Act'). The whole section may be extracted at this stage with advantage :
17. Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,-
(a) in the case of Special Delhi Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under Sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a Police Officer of equivalent rank, shall investigate any offence punishable under this Act, without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant :
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant :
Provided further that an offence referred to In Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
4. The emphasis of learned counsel for the petitioner is on the second proviso. The argument is that in fact there was no order of Superintendent of Police or any higher officer to investigate this case against the accused either by Bisen or any other officer or generally and such an order is a precondition for start of investigation for offence punishable under Clause (e) of Section 13(1) of the Act.
5. We are firstly faced with the interpretation of this proviso and secondly the factual aspect whether there was such an order or not, along with another aspect that on the application of Superintendent of Police a warrant of search in favour of Shri S.K.S. Bisen was issued by the Special Judge on 6-5-1996. It is not in dispute that the investigation started on 6-5-1996. Even the first information report was recorded by Shri Bisen about these allegations of possession of disproportionate assets by the accused on 6-5-1996 being Crime No. 43/96 recorded at Special Police Establishment Station, Bhopal.
6. In the assertion of learned counsel for the petitioner it is alleged that the investigating agency has in fact concocted retrospectively an order of the S.P., Special Police Establishment dated 6-5-1996 and perhaps they concocted it on 6-5-1997 or on some other date in favour of Shri S.K.S. Bisen. Similarly, they concocted another order in favour of Inspector Mourya on 12-7-1997 or on some other date in 1997 in pre-dating it as 12-7-1996. This argument is based on certain documents supplied to the accused at two stages; first stage when investigation was still continuing the accused had applied to the Special Court for being supplied with such order if there was any and the copy supplied was a photocopy dt. 6-5-1997 purported to be signed on 6-5-1997 in favour of Shri Bisen and another copy of 12-7-1997 also signed on the same day by the S.P. Since these orders were a year ahead of the investigation, the contention of the counsel was that such an order could not be passed with retrospective operation and, therefore, the order was not operative for the purpose of investigation and they challenged the process of investigation in a petition under Section 482, Cr.P.C. filed before this Court, allegedly pending as M.Cr.C. No. 3121/98.Thereafter, however, the investigation continued and the challan was filed. When the accused appeared before the Special Judge, a set of report under Section 173, Cr.P.C. along with statements of witnesses under Section 161, Cr.P.C. and copies of documents relied upon by the prosecution were supplied to the accused. These included order of the S.P. authorising investigation by Shri Bisen as well as by Shri Mourya, but, this time the photocopy of order of S.P. supplied, purported to be dated 6-5-1996 and 12-7-1996 respectively instead of the copies of the orders as supplied earlier being of a year later. At the same time these copies disclose that in fact they were signed by S.P. on 6-5-1997 and 12-7-1997 respectively. On this premise, the counsel approached this Court in the present petition urging that the orders have been manoeuvred and in fact finding that the old order could not be of retrospective activity w.e.f. 6-5-1996, the fresh orders were prepared showing them as dated 6-5-1996 and 12-7-1996, but, the cat came out of the bag when the signing authority in the course of his process of signing, put the date as 6-5-1997 below his signatures on both the orders. So that is the premise of the arguments that in fact there was no order whatsoever under Section 17 proviso ('2) and in the absence of such an order the whole investigation for this offence was without jurisdiction and in fact even the Special Judge could not be moved for seeking warrants of search and if he could be moved then even action on the warrant would not cure this illegality. Learned counsel for the petitioner has cited number of judgments/pronouncement including the Supreme Court and this Court in support of his contention. These I will look into presently, but, firstly the contention of learned Addl. A.G.
7. Learned Addl A.G. Shri Dilip Nayak urges that firstly the order of the S.P. was passed on 6-5-1996, of course, it was a mistake on his part to have signed the order as if signing on 6-5-1997, which he has stated in this Court. When this Court called him to explain this discrepancy. The assertion is that this explanation is acceptable. He has given reason for this. Next contention is that this very S.P. moved an application on 6-5-1996 before the Special Judge, Raipur for seeking warrant of search of the premises of this accused for the purpose of finding his disproportionate assets and in that application it was prayed that the warrants be issued in favour of Shri Bisen. The warrants were actually issued on that date, Shri Bisen carried out the search and seizure which ultimately resulted in this prosecution. The contention is that in fact the second proviso to Section 17 requires only an additional order of Superintendent of Police apart from the order of the Magistrate and if the order of the Magistrate is there, even if there is no orders under second proviso, it will be deemed to be there when the S.P. applied to the Special Judge for giving warrant of search in favour of a particular D.S.P. So in this light he argues that there is a deeming order of the S.P. and that order under the second proviso need not be in writing.
8. Another argument of the learned Addl. A.G. is that when the evidence has been collected by search and seizure under the order of a Magistrate it amounts to collection of evidence and it should be allowed to form basis of prosecution and to be proved in a Court of law because no prejudice has occurred to the accused. It is urged that mere technical objection is being raised and a written order of Superintendent of Police is not mandatory.
9. First I will look into the aspect whether the order purporting to be dated 6-5-1996 but purporting to be signed on 6-5-1997, was actually passed on 6-5-1996. The S.P. was called and asked to clarify. Shri C.S. Amb, the then S.P. appeared and has given the explanation as has been noticed in the arguments of learned Addl. A.G. But, two manifest aspects which arose are that if human error in writing the date was committed by the S.P. on '6-5-1996' in putting the date as 6-5-1997, how it was that another order with titled date as '6-5-1997' was also recorded. It is difficult to synthesise the two orders as prepared on the same date being of 6-5-1996. Still another aspect is that in the order dated 12-7-1996, in favour of Shri Mourya Inspector, again, the signing date was recorded as 12-7-1997 instead of '12-7-1996' and another order of the same type purports to be dated 12-7-1997 on its title also signed on 12-7-1997. It is really difficult to accept that on four separate orders, in two sets of two orders, prepared on two dates more than two months apart, the same mistake of recording 1997 instead of 1996 was committed by this officer as a result of human error or clerical error. This Court is unable to eschew this explanation. So on the face of it the Court finds that in fact there was no order on 6-5-1996 or on 12-7-1996 in favour of either Shri Bisen or Shri Mourya or generally. The orders may have been passed on 6-5-1997 and 12-7-1997 respectively, and titled date '6-5-1996' and '12-7-1996' was illegally recorded on them.
10. With these as a fact, let us see whether the investigation was totally unauthorised and whatever the results of investigation during the period 6-5-1996 to 5-5-1997 they could not be taken-into consideration or should be ignored and any challan on that basis is liable to be quashed.
11. While keeping in mind the provision of Section 17, second proviso of the Act, learned counsel for the petitioner urges that there were paramateria provisions in the earlier Prevention of Corruption Act, 1947 in Section 5(A) of that Act and they were subject of interpretation by various Courts. The second proviso to Section 5-A(1) of that Act also provided that offence referred to Section 5(1)(e) (which is also parallel to provision of Section 13(1)(e) of the present Act) shall not be investigated without order of police officer not below the rank of S.P. Learned counsel relies upon a pronouncement of Allahabad High Court in a case cited at (1994) 1 CCR 397 (Suresh Chandra Gupta v. State of U.P.) This case dealt with the order of S.P. required under the second proviso to Section 17 of the Act of 1988. His Lordship of the single Bench said that unless the Superintendent of Police or any officer above his rank had ordered for investigation of the offence no investigation could have been made by any officer of the vigilance establishment by virtue of notification dated 16th September, 1965. The provisions of the second proviso of Clause (c) of Section 5-A(1) of the Prevention of Corruption Act, 1947 which are equivalent of the provisions of Section 17 of the Prevention of Corruption Act, 1988 have not been complied with as far as the investigation is concerned. Without the order of a police officer of the rank of Superintendent of Police or above the investigation could not have been done against the, petitioner. Therefore, the investigation done in the present case is also without jurisdiction. But, this judgment deals with whether there was a necessity of speaking order of the S.P. under Section 17 proviso (2) or an order signed by the S.P. with certain blanks filled in was sufficient. His Lordship said that some speaking order was required. This, on facts, is not required to be considered in this case. At the best, it can be said that the Court proceeded on the assumption that such an order is necessary.
12. Another judgment of a single Bench cited at (1996) 3 CCR 266 titled Ram Babu Gupta v. State of M.P. has been relied upon. In this case there was a first enquiry for offence under Section 13(1)(e) of the Act by a D.S.P. duly authorized. He exonerated the accused. Then another inspector made further enquiry allegedly under the orders of I.G. Police of the State Government. When it came in challenge before the Court, no such order either of the State Govt. or of the I.G. could be produced and the Courts proceeded under the assumption that there was none. In this second enquiry the report was that there was commission of an offence. Learned Judge held that the second enquiry by Inspector vigilance was without any legal authority as required under Section 17 of the Act and quashed the result of the investigation and the orders passed on that basis by the Special Judge as well as entire proceedings in the trial was quashed.
13. Learned counsel buttresses his argument with the observation of the Supreme Court in the case reported in AIR 1955 SC 196 : 1955 Cri LJ 526 (H.N. Rishbud v. State of Delhi) where the question arose whether the second proviso to Section 5-A of the Prevention of Corruption Act, 1947 was directory or mandatory and what was the effect of violation. This proviso has already been extracted above. The Court said that these provisions are mandatory and not directory and investigation conducted in violation thereof bears the stamp of illegality. Of course, the Supreme Court was referring to Section 5-A in context of being parallel to its earlier provisions being a proviso to Section 3 before amendment in 1952 as also Section 5(4) before that amendment. But, all these provisions were parallel and pari materia with present second proviso to Section 17 of the Prevention of Corruption Act, 1988.
14. It will be noticed that the relevant words used in second proviso to Section 17 as "an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police." So it connotes prohibition against investigation.
15. The Supreme Court's pronouncement is on that basis, interpreting that the word 'shall' denotes an imperative and not a discretion.
16. Then counsel relies upon a case what is known as Bhajanlal's case cited at AIR 1992 SC 604 : 1992 Cri LJ 527 and in fact the learned Addl. A.G. also relies on certain observations of this very case. At page 123 of the report their Lordships observed regarding the provisions of Section 5-A of 1947 Act, that a police officer not below the rank of an Inspector of Police authorised by the State Government in terms of the first proviso, can take up the investigation of an offence referred to in Clause (e) of Section 5(1) "only on a separate and independent order of a police officer not below the rank of a Superintendent of Police." To say in other words, a strict compliance of the second proviso is an additional legal requirement to that of the first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under Clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression "further provided" occurring in the second proviso.
17. Learned Addl. A.G. relies on observations of the Supreme Court in this very judgment in para 125 as under :
It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case is taken and trial proceeded to termination, the invalidity of the proceeding investigation does not vitiate the result unless miscarriage of justice has been caused thereby.
It was further observed as under :
However, in Rishbud's case and Munni Lal's case, it has been ruled that if any breach of the said mandatory provision relating to investigation is brought to the notice of the Court at an early stage of the trial, the Court will have to consider nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation.
18. In that case investigation was conducted by an Inspector of Police, on the strength that Inspectors of Police under Inspector General of Police, Haryana, were empowered to investigate by Central Government's orders dt. 26-7-1975 and subsequently dt. 19-4-1988 offence under Section 5 of the Prevention of Corruption Act and the authorisation had been issued by the Governor under Section 5-A(i) of that Act. A.S.P. had authorised investigation of the offence under Section 5(1)(e) of that Act of 1947 by order dt. 21-11-1987, expressed by word "investigate." The Court considered whether this was sufficient order within the meaning of second proviso to Section 5-A(i). As already seen that proviso is pari materia to second proviso to Section 17 of the present Act of 1988. Their Lordships said following the earlier opinion of the Supreme Court in H.N. Rishbud's case AIR 1955 SC 196 : 1955 Cri LJ 526 at p. 205 (in which a Magistrate's authorisation in favour of lower rank officer to investigate was held illegal as the Magistrate was required to give reason why an officer other than empowered officer was being authorised to investigate) observed as under regarding the order of the S.P. contained in the word 'investigate' :
From the above discussion, we hold that (1) as the salutary legal requirement of disclosing the reasons for according the permission is not complied with; (2) as the prosecution is not satisfactorily explaining the circumstances which impelled the S.P. to pass the order directing the SHO to investigate the case; (3) as the said direction manifestly seems to have been granted mechanically and in a very casual manner, regardless of the principles of law enunciated by this Court, probably due to blissful ignorance of the legal mandate, and (4) as, above all, the SHO has got neither any order from the Magistrate to investigate the offences under Sections 161 and 165, I.P.C. nor any order from the S.P. for investigation of the offence under Section 5(1)(e) of the Prevention of Corruption Act in the manner known to law, we have no other option, save to quash that order of direction, reading "investigate" which direction suffers from legal infirmity and also the investigation, if any, so far carried out. Nevertheless, our order of quashing the direction of the S.P. and the investigation thereupon will not in any way deter the first appellant, the State of Haryana, to pursue the matter and direct an investigation afresh in pursuance of the F.I.R., the quashing of which we have refrained from if the State so desires, through a competent police officer, clothed with the legal authority in strict compliance with Section 5-A(1) of the Act.
With this observation their Lordships quashed the commencement as well as the entire investigation which followed the order 'investigate.' Of course, the first information report was not quashed and the authorities were left to reinvestigate after proper authorisation.
19. The contention of the counsel for the petitioner, on the basis of this authority is : that in this case there is no authorisation of 6-5-1996 and whatever formality is there is merely result of filling in the blanks with anti-dated title, signed by the S.P. a year later i.e. 6-5-1997. So, in the absence of the authorisation under Section 17(1) second proviso, the investigation in the offence under Section 13(1)(e) was barred or without jurisdiction by any authority even an empowered officer like D.S.P.
20. On the other hand the contention of learned Addl, A.G. is that there is no case made out suggesting prejudice to accused and unless prejudice is there, the completed investigation which has resulted in filing of the challan should be accepted, as evidence on that basis has to be led before the trial Court who has yet to frame charges.
21. Learned Addl. A.G., for stressing theory of prejudice or miscarriage of justice being the sine qua non of challenging the result of the investigation, has relied upon two judgments of the Supreme Court cited at AIR 1974 SC 765 : 1974 Cri LJ 660 titled Nanak Chand v. State of Himachal Pradesh and AIR 1973 SC 913 : 1973 Cri LJ 902 titled A.C. Sharma v. Delhi Administration. In A.C. Sharma's case the question raised was that after coming into force of Delhi Special Police Establishment Act constituting C.B.I. as investigating agency, whether the Anti-corruption Branch of Delhi Police was deprived of its jurisdiction to investigate the offence of bribery and corruption against Central Government employee in Delhi. The Supreme Court answered to legal query in the negative. It was case of taking bribe by clerk of Labour Officer of Delhi Administration. Their Lordships have stated that the empowerment of the officers of the C.B.I. under Delhi Special Police Establishment Act to investigate offences in Union Territory or any State, with the consent of the State Government, does not take away the power of the State Police to investigate those offences. It was in that light of the finding that the Supreme Court also observed that function of investigation was merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent Court, of the offence so investigated. But, in that very case in para 14, the Supreme Court observed that this observation was being made when a trial was complete and an investigation was said to be having some technical fault. Their Lordships said "When any breach of the mandatory provisions relating to investigation is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1952. So this authority hardly helps the prosecution in the present case. If there was no authorisation of S.P. on 6-5-1996 in favour of Shri Bisen, even if he was otherwise an empowered officer who could investigate other offence under Section 13(1)(a)(b)(c) and (d) of the Prevention of Corruption Act, 1988, he could not investigate the offence under Section 13(1)(e) unless the investigation was so ordered by an S.P. as required under Section 17, proviso 2 of that Act.
22. Coming to the next authority relied by learned Addl. A.G., that is in Nanak Chand's case it was also dealing with a different stage of the objection of authorization. The trial had been complete and the appellant has been convicted under Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947 and the conviction was upheld till the stage of High Court. Then on a Special Leave Petition before the Supreme Court, a contention was advanced that the investigation carried out by Assistant S.P., who was below the rank of Dy. S.P., was done without the order of Magistrate First Class, as required by Section 5-A of the Prevention of Corruption Act. So the trial must be held to be vitiated. The Supreme Court did not permit the appellant to raise this contention. It was in this context that the Lordship referred to the case of H.N. Rishbud's case (already referred) and observed that generally a conviction is not vitiated because there has not been strict compliance with the provisions of the Prevention of Corruption Act in the matter of investigation by a police officer unless the accused is shown to have been prejudiced. There is no such evidence of prejudice. The offence alleged in that case was also of taking bribe and the accused had been caught red handed by the Assistant S.P. while accepting bribe.
23. So the contention of learned Addl. A.G. Shri Nayak that no prejudice has been caused to the accused in the present case by the search and seizure by officer of empowered rank i.e. Dy. S.P. or any subsequent investigation by Inspector of Police who too is an empowered officer for certain purposes, cannot be accepted to be supported by the aforementioned pronouncements of the Supreme Court, in fact, these pronouncements go against him. The principle of law emerging from Section 17 proviso 2, Prevention of Corruption Act, 1988 appears unexceptional that if the accused approaches the Court at the initial stage and the investigation is found unauthorized, the Court has to interfere and quash the investigation.
24. It has also been noticed in the earlier part of this order that the alleged order of investigation by the S.P. Shri C.S. Amb cannot be said to have existed on 6-5-1996. At best, it came into existence on 6-5-1997. In fact, it appears to be a total concoction. It is not disclosed before this Court as to how much and what part of investigation was carried out after 6-5-1997, but, at the bar it has been more or less conceded that, apart from certain formal activities, the entire investigation was completed before 6-5-97. There was search and seizure of goods and articles and documents and recording of statements.
25. The offence alleged against, the accused petitioner in this case is not more than under Section 13(1)(e) of the Act. So proviso 2 to Section 17 will be squarely attracted which mandates that an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without prior order of a police officer not below the rank of S.P.
26. Since in this case the investigation by Shri Bisen, D.S.P. was without any order of the S.P., it was without jurisdiction. This defect cannot be said to be cured by application of S.P. before the JMFC for issuing warrant of search to be conducted by Shri Bisen. There cannot be a deemed order under second proviso to Section 17 of the Act. There has to be specific order in writing. Seeking of warrant of search is certainly a step towards investigation, but, it cannot be interpreted as an authorization for investigation. An order of investigation of the type, required under proviso 2 of Section 17 may not be in favour of the specific empowered officer and may be a general order as the wording of this proviso do not require the order in favour of every Investigating Officer separately. It may be a general order to investigate offence under Section 13(1)(e) against a particular public servant. It may mention empowered officer who will be investigating by the designation, but, if the name is not mentioned, there is no illegality, but, there has to be an order. Int his case there was none. So the pre-requirement was missing.
27. As observed by the Supreme Court in the two authorities cited earlier i.e. Bhajanlal's case, AIR 1992 SC 604 and Rishbud's case, as also by this Court and Allahabad High Court's pronouncements, the present investigation was illegal and unauthorized. On the basis of result of this investigation, therefore, challan under Section 173, Cr.P.C. was also unauthorized or it may be put in other words that the investigation so made could not be basis of a police report under Section 173, Cr.P.C. as in the present case. So the net result is that the investigation and the report must be quashed by this Court. They are so quashed, at the same time it is observed that it will not deter the competent authority to initiate investigation under proper order of competent authority and to reach a result, and if necessary to file a challan.
28. With these observations this petition is accepted and the prosecution is quashed at. this stage. But, this Court is not quashing the first information report in the present case.