Karnataka High Court
State Of Karnataka vs B. Narayana Reddy on 8 November, 2001
Equivalent citations: 2002CRILJ845, 2002(2)KARLJ80, 2002 CRI. L. J. 845, 2002 AIR - KANT. H. C. R. 425, (2002) 2 ALLCRILR 877, (2002) 2 KANT LJ 80, (2002) 3 CURCRIR 157
Author: G. Patribasavan Goud
Bench: G. Patribasavan Goud
ORDER G. Patribasavan Goud, J.
1. In Criminal Revision Petition No. 95 of 1999 arising out of Special C.C. No. 65 of 1997 on the file of the learned Special Judge, Bangalore Urban and Rural District, Bangalore, the respondent had been facing prosecution for an offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short), and by the impugned order of the learned Special Judge, he has come to be discharged, and therefore, the State has come up in revision.
2. In Criminal Revision Petition No. 695 of 1999 arising out of Special Case No. 6 of 1996 on the file of the learned Special Judge at Bijapur, petitioner is facing prosecution for an offence under Section 13(1)(e) read with Section 13(2) of the Act, and by the impugned order, the learned Special Judge has declined to discharge him, and therefore, he is before this Court.
3. Since common questions of law and fact have arisen in these two matters, they are heard together and are being disposed of by this common order.
4. In both the cases, investigation is conducted by the Inspector of Police. Sri Gopala Hegde, learned Counsel for the two accused concerned in both the cases urges that the order passed by the Superintendent of Police in each of these cases is not in accordance with the second proviso to Section 17 of the Act. Sri Rajendra Reddy, learned High Court Government Pleader, on the other hand contends that, it is in full compliance with the said proviso. To better appreciate rival contentions, I would set forth Section 17 of the Act.
"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 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 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". The order of the Superintendent of Police in respect of accused concerned in Criminal Revision Petition No. 95 of 1999 reads thus: "Bangalore, dated 11-12-1991 Proceedings under Section 17 of Prevention of Corruption Act, 1988 of the Superintendent of Police, City Division, Karnataka Lokayukta, Bangalore Subject: Information against Sri B. Narayana Reddy, Assistant Executive Engineer, Project Division, Bangalore Development Authority, Bangalore. Reference: Report filed by Sri S. Lakshman Singh, Inspector of Police, City Division, Karnataka Lokayukta, Bangalore. Report of Sri S. Lakshman Singh, Police Inspector, City Division, Karnataka Lokayukta, Bangalore against Sri B. Narayana Reddy, Assistant Executive Engineer, Project Division, Bangalore Development Authority, Bangalore for amassing of wealth disproportionate to his known sources of income during his service period has been perused by me. I have also made personal verification and satisfied that a prima facie case is disclosed under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. Order under Section 17 of the Prevention of Corruption Act, 1988, dated 11th December, 1991 In exercise of powers vested on me under Section 17 of the Prevention of Corruption Act, 1988, I, H.S. Rangadore, Superintendent of Police, City Division, Karnataka Lokayukta, Bangalore do hereby accord sanction to register a case against Sri B. Narayana Reddy, Assistant Executive Engineer, Project Division, Bangalore Development Authority, Bangalore and order Sri S. Lakshman Singh, Police Inspector, City Division, Karnataka Lokayukta, Bangalore to register a case and to conduct investigation. Sd/-
(H.S. Rangadore) 11/12 Superintendent of Police, City Division, Karnataka Lokayukta, Bangalore.
To Sri S. Lakshman Singh, Police Inspector, City Division, Karnataka Lokayukta, Bangalore for necessary action".
The order of the Superintendent of Police in respect of the accused in Criminal Revision Petition No. 695 of 1999 reads thus: "Proceedings of the Superintendent of Police, Karnataka Lokayukta, Belgaum Subject: Information against Sri H.N. Biradar, AEE NLBC Division No. 4, Kodakal Sub-Division, Gulbarga District. Reference: Source Report dated 25-11-1991 submitted by Sri B.S. Hanchinamani, Police Inspector, Lokayukta, Bijapur. The report dated 26-11-1991 of Sri B.S. Hanchinamani, Police Inspector, Lokayukta, Byapur against Sri H.N. Biradar, AEE NLBC Division No. 4, Kodakal Sub-Division, Gulbarga District, discloses amassing of wealth over and above his known sources of income in the form of houses, sites, cash, vehicles and other valuables, etc., by means of corruption. The verification of the facts of the report disclosed a prima facie case under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 against Sri H.N. Biradar, AEE NLBC Division No. 4, Kodakal Sub-Division, Gulbarga District. Order No. KLA/BGM/SP/91-92/715, dated 23rd December, 1991 In exercise of the powers vested in me under Section 17 of the Prevention of Corruption Act, 1988 I, S.S. Annegowda, Superintendent of Police, Lokayukta, Belgaum do hereby accord sanction to register a case under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 against Sri H.N. Biradar, AEE NLBC Division No. 4, Kodakal Sub-Division, Gulbarga District and to be investigated by Sri B.S. Hanchinamani, Police Inspector, Lokayukta, Bijapur. Given under my hand and seal on this 23rd day of December, 1991.
Sd/- (S.S. Annegowda) Superintendent of Police, Karnataka Lokayukta, Belgaum.
To Sri B.S. Hanchinamani, Police Inspector, Lokayukta, Bijapur".
5. The learned Counsel for the accused, Sri Gopala Hegde submits that, requirement under the second proviso to Section 17 of the Act is that, there should be assigning of reasons by the Superintendent of Police as to why he is directing investigation by an Inspector of Police. On the other hand, what Sri Rajendra Reddy, learned High Court Government Pleader urges is that, no doubt, reasons are to be there, but not as to why the investigation is being entrusted to an Inspector of Police, but, as to why the investigation is ordered at all. Sri Rajendra Reddy, therefore, urges that, as the above extracted orders of the Superintendent of Police in respect of the two accused concerned would show, there were enough material on record on which the Superintendent of Police in each case applied his mind and came to the conclusion that there was a prima facie case that needed investigation. Sri Gopala Hegde, learned Counsel for the accused, however, urges that, it is for the entrusting of the investigation to Inspector of Police that reasons are to be assigned, and two orders being totally silent in this regard, there is no valid order under the second proviso to Section 17 of the Act.
6. If the contention of Sri Rajendra Reddy, learned High Court Government Pleader, to the effect that, reasons to be assigned are for the purpose of ordering investigation is to be accepted, then there is no doubt at all that the two orders are self-sufficient, in the sense that, they fully demonstrate as to the application of mind on the part of the Superintendent of Police in each case and coming to the conclusion that the investigation was needed, and, therefore, the said investigation being ordered. On the other hand, if the contention of Sri Gopala Hegde, learned Counsel for the accused were to be accepted, viz., that the reasons to be assigned are not for the purpose of ordering investigation, but for the purpose of entrusting the investigation to an Inspector of Police, then, it is to be concluded that the two orders extracted above are totally silent as to why the Superintendent of Police in each case chose entrusting of investigation to the Inspector of Police. If that were to be so, the investigation done would be bad in each case for want of authorisation of the Superintendent of Police under the second proviso to Section 17 of the Act. The question, that therefore, arises is as to what for are the reasons to be assigned under the second proviso to Section 17 of the Act, i.e., are the reasons to be assigned for ordering investigation or are the reasons to be assigned for entrusting investigation to the Inspector of Police.
7. As it is, the main part of Section 17, inter alia, provides that the Superintendent of Police or a Police Officer of equivalent rank may investigate any offence punishable under the Act without the order of Metropolitan Magistrate or a Magistrate of First Class. The first proviso enables even an officer of the rank of Inspector of Police to do so without the order of Metropolitan Magistrate or a Magistrate of First Class, if he is authorised by the State Government by general or special order. It is not disputed that the Inspector of Police in each of these two cases is the one authorised by the State Government, as contemplated in the first proviso to Section 17 of the Act. But, when we come to second proviso, what it contemplates is that an offence under clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of the police officer not below the rank of Superintendent of Police. In both these cases, the offence concerned is one under Section 13(1)(e) read with Section 13(2) of the Act. Needless to say, therefore, the order of the Superintendent of Police under the second proviso to Section 17 had to be there in each case. In each of these two cases, such an order is there, the validity of which is in question.
8. In the case of State of Haryana and Others v Ch. Bhajan Lal and Others, this is what the Supreme Court said in paragraphs 122, 123 and 124:
"122. 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 authorised 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".
"123. It means 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, as 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".
"124. A conjoint reading of the main provision, Section 5-A(1) and the two provisos thereto, shows that the investigation by the designated police officers is the rule and the investigation by an officer of a lower rank is an exception".
It was next observed in paragraph 125 that in several decisions of the Supreme Court, Section 5-A of the Act (Section 5-A(1) of the 1947 Act corresponds to Section 17 of the 1988 Act) is mandatory and not directory, and the investigation conducted in violation thereof bears the stamp of illegality, but that illegality committed in course of an investigation does not affect the competence and the jurisdiction of the Court for trial, and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the validity of the proceedings with the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby, but that, however, in H.N. Rishbud v State of Delhi and in Muni Lal v Delhi Administration, it is held 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 the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and to cure the defects in the investigation.
In the case concerned, the Supreme Court, while maintaining the first information report and the registration of the case, nevertheless, quashed the commencement as well as the entire investigation done till then on the ground that the investigating officer concerned had not been clothed with legal authority to take up investigation and proceed with the same within the meaning of Section 5-A(1) of the 1947 Act (corresponding to Section 17 of 1988 Act). The Supreme Court also gave liberty to the State Government to direct investigation afresh, through a competent police officer empowered with valid legal authority in strict compliance with Section 5-A(1) of 1947 Act (corresponding to Section 17 of the 1988 Act).
9. In both the cases concerned herein, objection as regards incompetence of the investigating officer is taken at the early stage, and, therefore, needs to be examined on merits. While doing so, if the objection is found valid, then, similar direction as had been given by the Supreme Court needs to be given.
10. The Supreme Court, in Ch. Bhajan Lal's case, supra, has also referred to the observations of the Constitutional Bench in the case of A.R. Antulay v Ramdas Srinivas Nayak, that Section 5-A of the 1947 Act is the safeguard against investigation of offences by public servants, by petty or lower rank police officer.
11. It is then that the Supreme Court observes thus in paragraph 134 of the judgment in Bhajan Lal's case, supra:
".... It is therefore, clear in the light of the above principle of law that the Superintendent of Police or any police officer of above rank while granting permission to a non-designated police officer in exercise of his power under second proviso to Section 5-A(1), should satisfy himself that there are good and sufficient reasons to entrust the investigation with such police officer of a lower rank and record his reasons for doing so; because the very object of the legislature in enacting Section 5-A is to see that the investigation of offences punishable under Section 161, 165 or 165-A of the Indian Penal Code as well as those under Section 5 of the Act should be done ordinarily by the officers designated in clauses (a) to (d) of Section 5-A(1). The exception should be for adequate reasons which should be disclosed on the face of the order".
(emphasis supplied) Having thus held above as to what for the reasons are to be assigned, the Supreme Court proceeded further in paragraph 135 of the judgment to note that, in the case before it, there was absolutely no reason given by the Superintendent of Police in directing the SHO to investigate and as such the order of the Superintendent of Police was directly in violation of the dictum laid down by the Supreme Court in several decisions." The Supreme Court, therefore, concluded that the SHO concerned has not been clothed with the requisite legal authority within the meaning of the second proviso to Section 5-A(1) of the Act to investigate the offence under Section 5(1)(e) of the Act.
12. It is thus clear that the ratio of the decision of the Supreme Court in Bhajan Lal's case, supra, is that, compliance with Section 17 of the 1988 Act is absolutely necessary, that if the objection in that regard is taken at the earliest opportunity, same needs to be looked into and necessary rectification done. It is also clear that reasons to be assigned under the second proviso must be as to why investigation is being entrusted to a particular officer of the lower rank like Inspector of Police in the two cases concerned herein. The Supreme Court referred to the observation of the Constitutional Bench in Antulay's case, supra, about Section 5-A of the 1947 Act (corresponding to Section 17 of the 1988 Act) being a safeguard against investigation of offences by public servants by petty or lower rank police officer. The ratio of the decision of the Supreme Court in Bhajan Lal's case, supra, insofar as assigning of reasons under the second proviso to Section 17 of the 1988 Act is that, the said reasons must relate as to why the investigation is being entrusted to an officer of lower rank like that of Inspector of Police. Thus, it is not the case of assigning reasons for the purpose of entrustment of investigation as contended by Sri Rajendra Reddy, learned High Court Government Pleader, but, it is the case of assigning reasons for entrusting to an officer of the lower rank as contended by Sri Gopala Hegde, learned Counsel for the accused. In that view of the matter, the two extracted orders of the Superintendent of Police would make it clear that, not a single reason is assigned as to why investigation is being entrusted to an Inspector of Police. Applying the ratio of the decision of the Supreme Court in Bhajan Lal's case, supra, therefore, the said orders of the Superintendent of Police in the two cases concerned must fall short of the strict legal requirement of the second proviso to Section 17 of the Act. Sri Rajendra Reddy, High Court Government Pleader refers to another decision in State of Madhya Pradesh and Others v Shri Ram Singh. The order of the Superintendent of Police in the said case being dealt with by the Supreme Court was no better than the two orders concerned herein; still, the Supreme Court found it valid. It is therefore that Sri Rajendra Reddy, learned High Court Government Pleader urges that the Supreme Court having done so, particularly after noticing what had been well-settled in Bhajan Lal's case, supra, these two cases cannot be different from the one that the Supreme Court was dealing with in the said Ram Singh's case, supra. But, as pointed out by Sri Gopal Hegde, learned Counsel for the accused, the ratio of the decision of the Supreme Court in Ram Singh's case, supra, is not different from that in Bhajan Lal, but that the Supreme Court in Ram Singh's case, supra, was distinguishing Bhajan Lal's case, supra, in the factual context of particular case i.e., Ram Singh's case, supra. Sri Gopala Hegde, learned Counsel for the accused also pointed out, and rightly, that there was also the observation of the Constitutional Bench of the Supreme Court in Antulay's case, supra, as regards Section 5-A of the 1947 Act corresponding to Section 17 of the 1988 Act being the safeguard against investigation of the offence by public servants by petty or lower rank police officer.
13. It therefore needs to be seen as to whether the Supreme Court in Ram Singh's case, supra, has taken a view different from the one that had been taken in Bhajan Lal's case, supra, as urged by Sri Rajendra Reddy, learned High Court Government Pleader or whether the ratio remains the same, but, that the Bhajan Lal's case, supra, is only distinguished in the factual context of Ram Singh's case, supra, as urged by Sri Gopala Hegde, learned Counsel for the accused.
14. In Ram Singh's case, supra, the information had been received on 4-7-1992 alleging that when Ram Singh was a Sub-Inspector of Excise, he had acquired properties disproportionate to his known sources of income. The case was therefore registered at Crime No. 103 of 1992 under Section 13(1)(e) read with Section 13(2) of the 1988 Act. On 4-8-1992 a raid was conducted by the Deputy Superintendent of Police, SPE, Lokayukta Office, Gwalior. Then Ram Singh submitted the prescribed Forms 1, 2 and 3 to the Deputy Superintendent of Police (Lokayukta), Gwalior. The initial investigation was conducted by Sri B.N. Bhatia, Deputy Superintendent of Police, Special Police Establishment, Gwalior. It was thereafter that Sri D.S. Rana, Inspector of SPE, Gwalior had come to be authorised by the concerned order of the Superintendent of Police on 12-12-1994. The said order of the Superintendent of Police entrusting investigation to Sri D.S. Rana, Inspector of SPE was claimed by the prosecution to be strictly under Section 17 of the Act. It was in the background of these facts and circumstances that the Supreme Court in Ram Singh's case, supra, observed in paragraph 14 of the judgment as follows:
"14. In Bhajan Lal's case, supra, this Court had found on facts that the SP had passed the order mechanically and in a very casual manner regardless of the settled principles of law. The provisions of Section 17 of the Act had not been complied with. As earlier noticed the SP while authorising the SHO to investigate had made only endorsement to the effect "please register the case and investigate". The SP was shown to be not aware either of allegations or the nature of the offences and the pressure of workload requiring investigation by an Inspector. There is no denial of the fact that in cases against the respondents in these appeals, even in the absence of the authority of the SP the Investigating Officer was in law authorised to investigate the offence falling under Section 13 of the Act with the exception of one as is described under Sub-section (1)(e) of the Act. After registration of the FIR the Superintendent of Police in the instant appeals is shown to be aware and conscious of the allegations made against the respondents, the FIR registered against them and pending investigations. The order passed by the SP in case of Ram Singh, supra, on 12-12-1994 with respect to a crime registered in 1992 was to the effect:
"In exercise of powers conferred by the provisions on me, under Section 17 of the Prevention of Corruption Act, 1988, I P.K. Runwal, Superintendent of Police, Special Police Establishment, Division-I, Lokayukta Karyalaya, Gwalior Division, Gwalior (MP), authorised Shri D.S. Rana, INSP-(SPE), LAK-GWL (MP) to investigate Crime No. 103 of 1992 under Sections 13(1)(e) and 23(2) of the Prevention of Corruption Act, 1988 against Shri Ram Singh, D.O., Excise, Batul (MP)".
Similar orders have been passed in the other two cases as well. The reasons for entrustment of investigation to the inspector can be discerned from the order itself. The appellant-State is, therefore, justified in submitting that the facts of Bhajan Lal's case, supra, were distinguishable as in the instant case the Superintendent of Police appears to have applied his mind and passed the order authorising the investigation by an Inspector under the peculiar circumstances of the case. The reason for entrustment of investigation were obvious....".
15. Thus, in Ram Singh's case, supra, much of the investigation had already been done by the Deputy Superintendent of Police, and, in fact, registration of the case and the two raids had been done by the Deputy Superintendent of Police, and obtaining of prescribed forms also had been done by Deputy Superintendent of Police. All these materials including whatever investigation had been done by the appropriate officer, namely Deputy Superintendent of Police, and the stage of investigation, had thus been there before the Superintendent of Police at the time he authorised, under the second proviso to Section 17 of the Act, an Inspector of Police to proceed further. Same was not the position in Bhajan Lal's case, supra and also same is not the position in the two cases concerned herein. It was, therefore, that the Supreme Court in Ram Singh's case, supra, in the factual context of that particular case, distinguished its earlier decision in Bhajan Lal's case, supra and pointed out as to how the reasons for assigning investigation to the Inspector of Police in Ram Singh's case, supra, were discernible from the order itself. It is therefore obvious that the decision of the Supreme Court in Ram Singh's case, supra, needs to be confined to the facts of that particular case and that the ratio of the decision in Bhajan Lal's case, supra, very much remains, namely that the reasons need to be assigned for entrusting investigation to a lower rank officer when the Superintendent of Police passes order under the second proviso to Section 17 of the Act. This being the position, I have to conclude that in the two orders concerned herein, passed by the Superintendent of Police, absolutely no reason is assigned as to why investigation is being entrusted to a lower rank officer, namely Inspector of Police.
16. Criminal Revision Petition No. 95 of 1999 filed by the State is, therefore, dismissed and Criminal Revision Petition No. 695 of 1999 is allowed, and, the petitioner therein is discharged of the offence punishable under Section 13(1)(e) read with Section 13(2) of the Act.
17. Having said above, it is made clear that the FIRs in two cases are not quashed. Authorities are at liberty to proceed afresh in accordance with law, if they so desire.
18. In the end, while the able assistance of a Senior Counsel like Sri Gopala Hegde is understandable and is appreciated, I must place on record the valuable assistance rendered by Sri Rajendra Reddy, learned High Court Government Pleader.