Punjab-Haryana High Court
Udhar Chand Sharwan vs State Of Punjab And Another on 24 December, 2009
Author: Augustine George Masih
Bench: Augustine George Masih
Crl.Misc.No.37906-M of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.37906-M of 2006
Date of Decision:- 24.12.2009
Udhar Chand Sharwan ....Petitioner(s)
vs.
State of Punjab and another ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Mansur Ali, Advocate,
for the petitioner.
Mr.Amandeep Singh Rai, AAG, Punjab.
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AUGUSTINE GEORGE MASIH, J.
The petitioner had joined the State Bank of India as Agriculture Assistant on 5.6.1977. He was promoted to the Middle Management Grade Scale-III vide order dated 13.9.2005. He was posted in the Abohar Branch of State Bank of India and was made the Manager of the Development Banking Division, Abohar, District Ferozepur. On the statement of one Ram Jass-respondent No.2-complainant (since deceased), FIR No.29 dated 5.6.2006 under Sections 7, 13(2) of the Prevention of Corruption Act, 1988 (for short the P.C. Act) at Police Station Vigilance Bureau, Ferozepur was registered against the petitioner.
As per the allegations set up in the complaint, the petitioner had demanded bribe of Rs.10,000/- from the complainant for release of first instalment of Rs.1,00,000/- out of the loan of Rs.2 lacs which was sought by Crl.Misc.No.37906-M of 2006 2 the complainant from the Bank.
The petitioner was caught red-handed and a sum of Rs.10,000/- was recovered from him.
He has challenged FIR No.29 dated 5.6.2006 registered at Police Station Vigilance Bureau, Ferozepur Range, Ferozepur (Annexure P-
2) on the ground that the same could not have been registered by the Vigilance Bureau, Ferozepur Range, Ferozepur, as he was an employee of Central Government Organization i.e. State Bank of India, which is incorporated under the Bank of India Act, 1955. He being an employee of the Central Government, the offence under the P.C. Act could have been registered only by the Central Bureau of Investigation (C.B.I.) which is established under the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as 'the 1946 Act') which extends to the whole of India. Since the offence alleged to have been committed by the petitioner falls under the notification issued by the Central Government in the Official Gazette under Section 3 of the 1946 Act, the FIR could have been registered by the CBI alone and the Vigilance Bureau did not have the jurisdiction to register the same. Similar is the contention with regard to the investigation carried out by the Vigilance Bureau. He contends that the Central Bureau of Investigation, Chandigarh Circle, Chandigarh, is the appropriate Authority for registration of cases under the P.C. Act and, therefore, was the competent investigating Agency which could have proceeded to investigate the matter against the petitioner as he was an employee of the Central Government. In this regard, reliance has been placed upon Section 17-A of the P.C.Act.
Counsel further contends that the prior sanction for prosecution Crl.Misc.No.37906-M of 2006 3 of the petitioner was necessary from the Central Government which again was not obtained by the Vigilance Bureau to proceed to register the FIR and to investigate against the petitioner and thus, the FIR deserves to be quashed. He further contends that as per the Central Vigilance Commission Act, 2003, all offences committed by a Central Government employee fall within the investigation and supervisory control of the Central Vigilance Commission which as per the provisions of Section 8 of the Act, exercises superintendence over the functioning of the Delhi Special Police Establishment insofar as it relates to the investigation of cases alleged to have been registered against the employees under the P.C.Act or an offence with which a public servant as specified in sub-section (2) of the Act may, under the Code of Criminal Procedure, 1973, be charged with at the same trial. On this basis, counsel contends that the jurisdiction of all other investigating Agencies to register an FIR and to investigate the offences under the P.C.Act or offences specified in sub-section (2) of this Act is barred. He further relies upon the provisions of Section 26 of the Central Vigilance Commission Act 2003 vide which amendment to the 1946 Act has been brought about by inserting Sections 1-A and 4. Superintendence of the Delhi Special Police Establishment vests in the Commission. On the basis of these provisions, it is contended that a criminal case against the petitioner, who falls within the definition of a "Central Government employee", could be registered only by the Central Bureau of Investigation under the 1946 Act and would accordingly be the competent investigating Agency for the offence(s) alleged to have been committed by the petitioner under the P.C.Act. He relies upon a judgment of the Calcutta High Court in the case of Indra Narayan Ganguly vs. State of West Bengal, 1997 Crl.Misc.No.37906-M of 2006 4 Crl.L.J. 2870, to contend that if a power has been exercised which is beyond jurisdiction, the same is bad and illegal and all such acts which have been performed in pursuance to such illegal exercise of powers deserve to be set aside being not permissible under the law.
On the other hand, counsel for the respondent-State submits that the petitioner although may be a Central Government employee but as the offence was committed within the jurisdiction of the Vigilance Bureau, Ferozepur Range, Ferozepur, the FIR has been rightly registered there. He contends that there is no specific bar under the 1946 Act which debars the registration of an FIR by any other Authority except the C.B.I. In any case, as per the provisions of Section 6 of the 1946 Act, the consent of the State Government to exercise the powers and jurisdiction has to be obtained by the Central Government from the State Government for exercise of powers under the said Act for the offences committed within the jurisdiction of the State concerned. The C.B.I. has, vide its letter dated 25.9.2001 bearing dispatch No.7743 (Annexure R-1) delegated their powers to deal with such like cases to the Vigilance Bureau, Punjab. As regards the question of sanction, it is his contention that the competent Authority has already granted sanction to prosecute the petitioner and even charges have been framed against him vide order dated 21.9.2007 passed by the Special Judge, Ferozepur (Annexure P-6). The grounds which have been taken by the petitioner for quashing of the FIR and all consequential proceedings arising therefrom are, thus, not sustainable and deserve to be rejected.
I have heard counsel for the parties and gone through the records of the case.
Section 154 of the Code of Criminal Procedure, states that Crl.Misc.No.37906-M of 2006 5 every information relating to the commission of a cognizable offence, if given orally to an officer in-charge of the Police Station, shall have to be reduced into writing by him or under his direction and if the information is given in writing, the same shall be reduced into writing and a substance thereof be entered into book being kept by such officer in-charge of the Police Station in such form as the State Government may prescribe in this behalf. The mandate, therefore, is the registration of a First Information Report on the basis of an information received relating to the commission of a cognizable offence. The officer in-charge of the Police Station is, thus, duty bound under the provisions of Section 154 Cr.P.C. to act in a particular manner as mandated under the said Section. This is termed as a First Information Report (F.I.R.). No provision under the 1946 Act bars the registration of an FIR under the provisions of the Code of Criminal Procedure, by any other competent police officer except for those as provided in the Act with regard to the Central Government employees. No notification has also been placed on record which bars the registration of an FIR against the Central Government employee except by the Officer specified under the 1946 Act. The provisions of Section 17 of the P.C.Act on which the counsel for the petitioner has placed reliance to submit that the competent Authority to investigate the offence under the P.C.Act against the Central Government employees would be the CBI alone, is also misplaced. Section 17 only specifies the persons who are authorized to investigate the offences under the P.C. Act. The said Section also starts with words "notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank". Thereafter, the officers under the various agencies and forces have been specified. This provision also does Crl.Misc.No.37906-M of 2006 6 not bar the investigation of the offences against the Central Government employee, by an officer belonging to the police force of the State. What it provides for is the officer not below the rank as specified therein.
As regards the provisions of Section 19 of the P.C. Act with regard to the previous sanction necessary for registration of FIR and prosecution, suffice it to say that this Section comes into play when the Court has to take cognizance of the offence punishable under Sections 7, 10, 11, 13 and 15 of the Act alleged to have been committed by a public servant. This section has no application before the submission of the police report under Section 173 Cr.P.C. As per this provision, prior sanction for prosecution is required for taking cognizance of the offence by the Court. This question also has now lost its relevance when sanction has been granted by the competent Authority to prosecute the petitioner and charges stand framed against him by the Special Judge, Ferozepur vide order dated 21.9.2007 and the sanction granted for prosecution is not under challenge in the present case.
As far as the contention of the counsel for the petitioner with regard to the jurisdiction of the Central Vigilance Commission of supervision over the Delhi Special Police Establishment as per the provisions of the Central Vigilance Commission Act 2003 is concerned, the same would not be of any help to the petitioner for the reason that there is no bar under the Central Vigilance Commission Act, 2003 and the 1946 Act for the registration of an FIR and to investigate the offences alleged to have been committed by a Central Government employee under the P.C. Act by any other agency or State police. The Central Vigilance Commission Act, 2003 only gives powers of superintendence over the functioning of the 1946 Crl.Misc.No.37906-M of 2006 7 Act. As has been held above, the State Investigating Agency, which in this case is the Vigilance Bureau, Ferozepur, has rightly registered an FIR and investigated the offences against the petitioner and thus, the Central Vigilance Commission Act, 2003 has no bearing on the present case and the contentions raised by the counsel for the petitioner are not sustainable.
The Hon'ble Supreme Court in the case of A.C.Sharma vs. Delhi Administration, AIR 1973 (SC) 913 while dealing with the similar facts wherein it was contended that the investigation conducted by the Anti- Corruption Branch, Delhi was without jurisdiction as the investigation for an offence committed under the P.C.Act could only be done by the officer/agency under the 1946 Act and if so done the investigation is unauthorized, the trial springing therefrom would not be in accordance with law and, therefore, the conviction deserves to be set aside. The Hon'ble Supreme Court formulated a question to be answered by it that whether with the setting up of the 1946 Act, the Anti Corruption Branch of the Delhi Police had been completely deprived of its powers to investigate into the offences like the present one or whether both the Special Police Establishment and the Anti Corruption Branch had the power to investigate the offence. The Hon'ble Supreme Court while referring to the provisions of the 1946 Act and the Code of Criminal Procedure held as follows:-
"11. Statement of objects and reasons for introducing a Bill in the Legislature is not admissible as an aid to the construction of the statute as enacted; far less can it control the meaning of the actual words used in the Act. It can only be referred to for the limited purpose of ascertaining the circumstances which actuated the Crl.Misc.No.37906-M of 2006 8 sponsor of the Bill to introduce it and the purpose for doing so. The preamble of a statute which is often described as a key to the understanding of it may legitimately be consulted to solve an ambiguity or to ascertain and fix the meaning of words in their context which otherwise bear more meanings than one. It may afford useful assistance as to what the statute intends to reach, but if the enactment is clear and unambiguous in itself then no preamble can vary its meaning. While construing a statute one has also to bear in mind the presumption that the Legislature does not intend to make any substantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and object of the statute.
12. Turning to the D.S.P.E., Act it extends to the whole of India. For the constitution and powers of the establishment we have to turn to Section 2 of this Act which reads:-
"2. Constitution and powers of special Police establishment:
(1) Notwithstanding anything in the Police Act, 1861, the Central Government may constitute a special Police force to be called the Delhi Special Police Establishment for the investigation in any Union territory of offences notified under Section 3.
(2) Subject to any orders which the Central Government Crl.Misc.No.37906-M of 2006 9 may make in this behalf, members of the said Police establishment shall have throughout any Union Territory in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which Police officers of that Union territory have in connection with the investigation of offences committed therein. (3) Any member of the said Police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union territory any of the powers of the officer in charge of a Police Station in the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a Police Station discharging the functions of such an officer within the limits of his Station."
Section 3 which empowers the Central Government to specify the offences to be investigated by the D.S.P.E. has already been set out. The notification dated November 6, 1956 referred to earlier specifies numerous offences under various enactments including a large number of ordinary offences under I.P.C. Clauses (1) to
(j) of this notification take within their fold offences under a number of statutes specified therein. Clause (k) extends the sweep of this notification by including in its Crl.Misc.No.37906-M of 2006 10 scope attempts, abetments and conspiracies in relation to or in connection with the offences mentioned in Clause
(a) to (h) and also any other offence committed in the course of those transactions arising out the same facts. It may also be stated that after 1956 in a number of further notifications the list of the offences specified under Section 3 has increased manifold. We consider it unnecessary to refer to them in detail. According to Section 4 the superintendence of D.S.P.E. vests in the Central Government and Section 5 empowers the Central Government to extend to any area in a State not being a Union territory the powers and jurisdiction of members of this establishment for the investigation of any offences or classes of offences specified under Section 3, Subject to the orders of the Central Government the members of such Establishment exercising such extended powers and jurisdiction are to be deemed to be members of the Police force of that area for the purpose of powers, functions, privileges and liabilities. But the power and jurisdiction of a member of D.S.P.E. in such State is to be exercised with the consent of the Government of the State concerned. The scheme of this Act does not either expressly or by necessary implication divest the regular Police authorities of their jurisdiction, power and competence to investigate into offences under any other competent law. As a general rule, it would require clear Crl.Misc.No.37906-M of 2006 11 and express language to effectively exclude as a matter of law the power of investigation of all the offences mentioned in this notification from the jurisdiction and competence of the regular Police authorities conferred on them by Criminal Procedure Code and other laws and to vest this power exclusively in the D.S.P.E. The D.S.P.E. Act seems to be only permissive or empowering , intended merely to enable the D.S.P.E. also to investigate into the offences specified as contemplated by Section 3 without impairing any other law empowering the regular Police authorities to investigate offences.
13. Turning now to the Prevention of Corruption Act (2 of 1947), we find that this Act was enacted in March, 1947 several months after the enactment of the D.S.P.E. Act for the more effective prevention of bribery and corruption. By virtue of Section 3 of the Act an offence under Section 165-A, Indian Penal Code was made a cognizable offence for the purposes of Criminal Procedure Code notwithstanding anything to the contrary contained in that Code. Section 4 provides for presumption in certain cases. Section 5 defines criminal misconduct and also provides for punishment for such offences. It further provides for punishment for habitual commission of offences under Sections 162, 163 and 165, Indian Penal Code and also renders punishable attempts to commit some offences. Section 5 is expressly Crl.Misc.No.37906-M of 2006 12 stated to operate in addition to and not in derogation of other laws. Section 5-A which is of importance may here be set out:
"5-A. Investigation into cases under this Act:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no Police Officer below the rank:-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police:
(b) in the Presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police;
(c ) in the Presidency Town of Bombay, of a Superintendent of Police; and
(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section
161. Section 165, or Section 165-A of the Indian Penal Code or under Section 5 of this Act without the order of a Presidency 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 Presidency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a Crl.Misc.No.37906-M of 2006 13 warrant :
Provided further that 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.
(2) If, from information received or otherwise, a Police officer has reason to suspect the commission of an offence which he is empowered to investigate under sub-
section (1) and considers that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers books, then, notwithstanding anything contained in any law for the time being in force, he may inspect any bankers' books in so far as they relate to the accounts of the person suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the Police officer in the exercise of his powers under this sub-section :
Provided that no power under this sub-section in relation to the accounts of any person shall be exercised by a Police Officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a Police Officer of or above the rank of a Superintendent of Police.Crl.Misc.No.37906-M of 2006 14
Explanation :- In this sub-section, the expressions 'bank' and 'bankers' 'books' shall have the meanings assigned to them in the Bankers' Books Evidence Act, 1891." Sub-section (1) of this section, while regulating the competence of the officers both of D.S.P.E. and of the regular Police force to investigate offences to the extent considered necessary, overrides the provisions of Criminal Procedure Code. It expressly prohibits Police officers including those of the D.S.P.E., below certain ranks from investigating into offences, under Sections 161, 165 and 165-A, Indian Penal Code and under Section 5 of Prevention of Corruption Act, without orders of Magistrates specified therein and from effecting arrests for those offences without a warrant. The plain meaning of this sub-section appears to be that Inspectors of Police of D.S.P.E. in all places, Assistant Commissioner of Police in the Presidency Towns of Calcutta and Madras. Superintendents of Police in the Presidency Town of Bombay, and Deputy Superintendents of Police in all places, other than Presidency Towns of Calcutta, Madras and Bombay, are authorised to investigate into the offences mentioned therein. The work "elsewhere" in Clause (d) does not indicate, as was contended by Mr.Anthony that a Deputy Superintendent of Police is debarred from investigating offences mentioned in this clause even when so ordered Crl.Misc.No.37906-M of 2006 15 by a Magistrate of the First Class in the areas in which D.S.P.E. is also empowered to function. The work "elsewhere" in Clause (d) appears to us to refer only to the three Presidency towns mentioned in Clauses (b) and (c ). this sub-section, therefore, does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular Police force. It is merely concerned with the object of making provision for safeguarding against arbitrary use of power of investigation by officers below certain ranks, so that public servants concerned are saved from frivolous harassment at the hands of disgruntled persons. In this connection it is also noteworthy that apart from the restriction contained in Sec.5A(1) the applicability of the provisions of Criminal Procedure Code to the proceedings in relation to the aforesaid offences is, subject to certain modifications contained in Section 7-A, expressly recognised. The schemes of the two enactments, namely, the D.S.P.E. Act, 1946 and the Prevention of Corruption Act, 1947, suggest that they are intended to serve as supplementary provisions of law designed to function harmoniously in aid of each other and of the existing regular Police investigating agencies for effectively achieving the object of successful investigation into the serious offences mentioned in Section 5-A without unreasonably exposing the Public Crl.Misc.No.37906-M of 2006 16 servant concerned to frivolous and vexatious proceedings. xxxxxxx"
The Hon'ble Supreme Court proceeded to hold that the function of the investigation is merely to collect the evidence and any irregularity or even illegality in the course of collection of evidence in scarcely be considered by itself to affect the legality of the trial by an otherwise competent Court of an offence so committed.
The above judgment of the Hon'ble Supreme Court leaves no manner of doubt that the contentions as raised by the counsel for the petitioner have no basis and deserve to be rejected. In the present case, it would not be out of way to mention here that there are serious allegations against the petitioner. The competent Authority has proceeded to grant sanction to prosecute the petitioner and the competent Court has proceeded to frame charges against him and the trial is proceeding against him. None of the contentions as have been raised by the counsel for the petitioner deserve acceptance by this Court in the light of the above discussion.
Finding no merit in the present petition, the same stands dismissed.
December 24, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE