Jharkhand High Court
Dharamvir Bhadoria vs Union Of India Through Sp-Cbi on 29 June, 2012
Author: R.R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.635 of 2012
Dharamvir Bhadaria.................................... Petitioner
VERSUS
Union of India through S.P, C. B.I.................. Opposite Party
CORAM : HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: M/s. Bimal Kumar, Sr. Advocate, Rajesh Lala &
D.K.Maltiyar, Advocates
For the C. B. I. : Mr. M. Khan, Advocate
8/ 29.6.12. This application has been filed for quashing of the charge sheet submitted by the C.B.I in R.C.No.20(A) of 2009.
Before adverting to the submissions advanced on behalf of the parties one may take notice of the case of the prosecution which is being given hereunder.
Pursuant to the order passed by this Court in W.P (PIL) No.803 of 2009 directing the C.B.I to enquire and investigate the matter relating to embezzlement of public money by the engineers, contractors and other persons towards procurement of Bitumen for the construction of the road, the matter was enquired into by the C.B.I and found the case as that of criminal liability on the part of the Basudeo Tiwary, the then Executive Engineer, Road Construction Department, Chaibasa, M/s. Nav Nirman Builders and some unknown persons and hence, lodged a case which was registered as R.C.No.20(A) of 2009(R) on the allegation that the then Executive Engineer during the period from 2006-07 entered into criminal conspiracy with M/s. Nav Nirman Builders and others whereby he facilitated M/s. Nav Nirman Builders to draw the money upon submission of false invoices showing procurement of Bitumen for the execution of contractual work awarded to him.
It has been further alleged that contractor was required to procure Bitumen from Indian Oil Corporation, Bharat Petroleum Corporation Limited or Hindustan Petroleum Corporation Limited and was further required to submit invoices showing procurement of Bitumen and a certificate pertaining to quality of Bitumen so procured and only after verification of the quality, materials were supposed to be used. The contractor who had been given contract for construction of Seraikella-Chaibasa Road submitted 37 number of invoices showing procurement of Bitumen from the Indian Oil Corporation Limited, Tatanagar Depot but out of those, six invoices had never been issued by the Indian Oil Corporation, Tatanagar Depot, still that much quantity of Bitumen covered under six invoices was shown to have been used in execution of the work and that the then executive engineer dishonestly and fraudulently certified the bills of the contractor for payment facilitating the contractor to draw a sum of Rs.89,68,966/- on the basis of false certificate.
The matter was taken up for investigation. In course of investigation, C.B.I also found culpability of other persons such as, Assistant Engineer, Junior Engineer including the petitioner, who happens to be the partner and power of attorney holder of the contractor M/s. Nav Nirman Builders, Adityapur and therefore, submitted charge sheet against the petitioner and others with the accusation that the Assistant Engineer facilitated the petitioner to draw the amount and thereby they committed offence punishable under Section 120(B) of the Indian Penal Code read with Section13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
Upon submission of the charge sheet, cognizance of the offence was taken vide order dated 4.12.2010 which was challenged by the petitioner in Cr.M.P No.395 of 2011 on amongst others on the ground that the petitioner being a non-public servant cannot be tried under the Prevention of Corruption Act. However, that plea was found unsustainable in law and hence, the said Cr.Misc. application was dismissed. Now this application has been filed for quashing of the charge sheet.
Mr. Bimal Kumar, learned Sr. Counsel appearing for the petitioner submitted that the case lodged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been investigated and even the charge sheet has been submitted by the Inspector of Police, though in terms of the provision of Section 17(c) of the Prevention of Corruption Act, only Deputy Inspector of Police or the Officer of the equivalent rank is competent to make investigation of the case registered under Section 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act but here the case has been investigated by the Inspector of the C.B.I and as such, entire prosecution gets vitiated.
In this respect it was further submitted that the Inspector of Police notified by the State Government is also competent to make investigation of the case but he is competent to make investigation of the case which relates to the offence under Section 13(1)(e) of the Prevention of Corruption Act but since the instant case registered under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has never been investigated by the Deputy Superintendent of Police, entire case warrants to be quashed.
Learned counsel appearing for the petitioner has referred to a decision rendered in a case of State of Haryana and others vs. Bhajan Lal and others [1992 Supp(1) SCC 335].
As against this Mr.Khan, learned counsel appearing for the C.B.I submitted that the provision as contained in Section 17 of the Prevention of Corruption Act is so specific that one on bare perusal of the provision can come to the conclusion that the Inspector of Police of Delhi Special Police Establishment is quite competent to make investigation of any offence punishable under the Prevention of Corruption Act.
In the context of the submission, the provision as contained in Section 17 needs tobe taken notice of which reads as follows;
17. Persons authorized 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 the Delhi Special 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 authorized 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 fist class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to an 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. On perusal it does appear that sub-section (1) of Section 17 while regulating the competence of the officers both of Delhi Special Police Establishment and of the regular police force to investigate offences to the extent considered necessary, overrides the provision of the Criminal Procedure Code. It expressly prohibits police officer including those of the Delhi Special Police Establishment below certain rank from investigating into the offence under the Prevention of Corruption Act without the order of Magistrate specified therein and from effecting arrest for those offences without the warrant.
Plain meaning of sub-section (1) appears to be that Inspector of Police of Delhi Special Police Establishment in all places, Assistant Commissioner of Police in the Metropolitan areas of Bombay, Calcutta, Madras and Ahmadabad or in any other metropolitan areas notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure and the Deputy Superintendent of Police or of the equivalent rank in all places other than the places mentioned above are authorized to investigate into the offences under the Prevention of Corruption Act.
Thus, it is evident that sub-section (1) does not confer sole power on the officer of the Delhi Special Police Establishment of the rank of Inspector to investigate into the offence of the Prevention of Corruption Act to the complete exclusion of the regular police force.
It has already been taken notice of that there are two provisos to sub- section (1). As per the first proviso, a police officer not below the rank of Inspector of Police, if authorized by the State Government either by general or special order, he may investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate or make arrest therefor without a warrant. However, according to the second proviso, an offence referred to under clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of Police Officer not below the rank of Superintendent of Police.
A conjoint reading of the main provision of Section 17 and two provisos thereto shows that the investigation by the designated police officer is the rule and the investigation by an officer of a lower rank is an exception.
To be more specific, it be stated that the Inspector of Police of the Delhi Special Police Establishment is the designated officer to investigate the case under the Prevention of Corruption Act whereas Assistant Commissioner of Police in the metropolitan areas as specified in sub-section(b) and the Deputy Superintendent of Police or of an officer of the equivalent rank at the place other than specified in clause (b) are the designated officer.
Restriction imposed under the proviso of sub-section never relates to the designated officer of the Delhi Special Police Establishment rather it operates when an officer below the rank of Inspector of Police of the regular establishment of the police force is entrusted with the investigation relating to offence under the Prevention of Corruption Act.
Thus, the Inspector of the Delhi Special Police Establishment never requires any authorization by the State Government for making any investigation of the case instituted under the Prevention of Corruption Act.
Learned counsel though has placed reliance on a decision rendered in a case of State of Haryana and others vs. Bhajan Lal and others (supra) but it never subscribes the view as has been submitted by learned counsel appearing for the petitioner which would be evident from the conclusion arrived at in paragraphs 116, 117 and 118 which read as follows:
"116. According to Section 5-A, notwithstanding anything contained in the Code, no police officer below the rank specified in clauses (a) to (d) of Section 5-A(1), shall investigate any offence punishable under Section 161, 165 or 165-A of the Indian Penal Code or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest therefor without a warrant. There are two provisos to that section. As per the first proviso, if a Police Officer not below the rank of an Inspector of Police is authorized by the State Government, either by general or special order, he may investigate any such offence without the order of a magistrate or make arrest therefor without a warrant. According to the second proviso, an offence referred to in clause
(e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
117. It means that a police officer not below the rank of an Inspector of Police authorized 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.
118. A conjoint reading of the main provision, Section 5-A(1) and the two provisos thereto, shows that the investigation by the designated police officer is the rule and the investigation by an officer of a lower rank is an exception."
Thus, I do not find any merit in this application. Accordingly, this application stands dismissed.
(R.R. Prasad, J.) ND/