Karnataka High Court
Central Bureau Of Investigation ... vs C.H. Wadigere And Anr. on 12 October, 2007
Equivalent citations: 2008(2)KARLJ656, 2008 CRI. L. J. (NOC) 332 (KAR.) = 2008 (1) AIR KAR R 144, 2008 (1) AIR KAR R 144
JUDGMENT A.S. Pachhapure, J.
1. This revision by the CBI represented by the Superintendent of Police, Bangalore, is directed against the order passed by the XXI Addl. City Civil & Sessions Judge and Special Judge for CBI Cases, Bangalore, in Spl. CC No. 184/2001 dated 20-08-2004 discharging the respondents - accused for the offences under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
2. The facts relevant for the purpose of this revision are as under:
One Sri. Jayaramaiah, S/o. Late. Dodde Gowda, a resident of Bilagumba Village, Ramanagara Taluk, Bangalore, submitted a written complaint to the Inspector of Police, CBI, Ganganagar, Bangalore, on 29.01.2001 alleging that the first accused - the Assistant Superintendent of Post Offices, Channapatna Division, is harassing the complainant for bribe in connection with the transfer and posting of Smt. R. Jayamma, the wife of the complainant, who was working as Branch Post Master at K.P. Doddi since 1999. It is said that the Accused No. 1 on 24.1.2001 demanded Rs. 20,000/- as bribe for showing official favour in the matter of transfer and posting of Smt. Jayamma working as the Branch Post Master at R.P. Doddi Post Office and that the Accused No. 1 informed that he is visiting the Kutugal Post Office on 30.1.2001 and asked him to meet in the Post Office with some amount and that he will also discuss the matter with the Accused No. 2. The complainant had no mind to pay any money to the accused and in case, if the amount demanded is not paid, there is possibility of harassment to his wife and having adjusted an amount of Rs. 5,000/-, approached the CBI Police with these allegations and submitted his written complaint for taking action against the accused in accordance with law. The allegations in the complaint were verified by the Inspector of Police, CBI and an immediate action to lay the trap was taken and the accused were caught red handed for having accepted the bribe amount of Rs. 3,000/- during the trap on 30.01.2001. As regards the demand of bribe, the conversation between the accused and the complainant was recorded and a recovery mahazar was drawn. As there was a demand for bribe and its acceptance, the first information report was prepared on 21.03.2001 and sent to the concerned. The CBI also obtained the consent of the State of Karnataka vide notification No. HD 15 PCR 2001 dated 17.3.2001 as required under Section 6 of Delhi Special Police Establishment Act, 1946 (hereinafter called as the 'DSPE Act'). So also, it obtained the sanction orders and the permission required for prosecution and submitted the charge sheet against the accused on 28.09.2001, as required under Section 173 Cr.P.C.
3. The accused appeared and the learned Judge heard about the framing of charge and passed the impugned order discharging the accused. Aggrieved by which, the CBI has approached this Court in revision.
4. I have heard Sri. Ashok Haranahalli, learned Counsel for the petitioner and Sri. K.S.A. Reddy and Sri. N. Krishna Das, learned Counsel for Respondent Nos. 1 and 2. The points that arise for my consideration are:
(1) Whether the consent of the State required under Section 6 of the DSPE Act, 1946 is a condition precedent for commencement of the investigation by the members of the Delhi Special Police?
(2) Whether the delay in the registration of the complaint and submission of the first information report is itself sufficient to discharge the accused?
(3) Whether there are any other grounds to interfere with the impugned order?
Re. Point No. 1:
5. The learned Counsel for the petitioner submits that the consent of the State of Karnataka obtained by the Delhi Special Police at a later stage does not invalidate the investigation and therefore, he submits that the Trial Court was wrong in discharging the accused on the ground that the consent is a condition precedent for the commencement of the investigation. It is also his contention that the Trial Court, having held that the sanction required under Section 19 of the Prevention of Corruption Act (hereinafter called as 'the P.C. Act' for short) is valid erred in discharging the accused, for the delay in submission of the first information report stating it as an inherent illegality. He submits that the delay in submission of the first information report, the causes for the delay and the malafides on the part of the investigating agency are the matters, which have to be considered during the course of the trial and therefore, he states that the impugned order is illegal and perverse. Whereas, the counsel for the respondents supported the order as valid and submit that the consent of the State under Section 6 of the DSPE Act is a condition precedent and that in view of the inherent illegality and infirmity in the case of the prosecution, the Trial Court was justified in discharging the respondents.
6. Now at the first instance, to consider the consent of the State under Section 6 of the DSPE Act, 1946, it is appropriate to refer to the said provision:
6. Consent of State Government to exercise of powers and jurisdiction - Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in (a State, not being a Union territory or railway area), without the consent of the Government of that State.
The perusal of the provision reveals that there is no specific mention of the prior consent for the members of the Delhi Special Police to exercise powers and jurisdiction to commence the investigation under Section 6 of the DSPE Act, 1946. As it could reveal, the section enables the Delhi Special Police to exercise their powers under this Act, but the exercise of the power or the jurisdiction has to be with the consent of the Government of that State. Now to consider the facts, a complaint was filed by the husband of Smt. R. Jayamma, an official of the Postal Department making an allegation of demand of birbe on 29.1.2001 to the CBI Police and there is an endorsement of its receipt by the Police Inspector, CBI, Bangalore and on receipt of this complaint, Sri. K. Jayakumaran Nair, Inspector of Police, felt that the matter warranted immediate action and therefore, requested Sri. Ramakrishna, the Inspector of Police, CBI, Bangalore, to conduct a trap for verifying the veracity of the complaint. Accordingly, it appears that Sri. Ramakrishna caused necessary verification and carried out the trap proceedings and caught red handed, the respondents, while they demanded and accepted the bribe amount of Rs. 3,000/- on 30.1.2001. On the same day, the conversation was recorded and the recovery mahazar was held and they found that there is prima facie material against the respondents for taking action for the offences punishable under Sections 7, 13(2) read with Section 13(1)(d) of the PC Act. As regards the submission of the first information report, even though the trap was held on 30.1.2001, it is only after obtaining the consent of the State of Karnataka under Section 6 of the DSPE Act vide Notification No. HD 15 PCR 2001 dated 17.3.2001, the first information report was submitted on 21.3.2001 at about 5.00 p.m. It is in these circumstances that the respondents contend that the consent of the State was obtained at the end and that the consent was necessary before the commencement of the investigation. This ground has been accepted by the Trial Court. Therefore, the question is, whether the consent of the State is a condition precedent for the commencement of the investigation? Before adverting to the facts and as to whether prior consent under Section 6 of DSPE Act is required, I think it would be proper to consider the preamble and the provisions of the P.C. Act.
7. The preamble of the PC Act, 1988, reads:
An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith.
The Act came into force on 9th September 1988, by repealing the provisions of the PC Act, 1947 and the Criminal Law Amendment Act, 1952 and by the provisions of Section 31 of the PC Act, 1988, the provisions to Sections 161 to 165-A of the IPC were omitted in view of the inclusion of the said provisions under this Act. The enactment and the repeal of PC Act, 1947, was with a purpose to incorporate the provisions with modifications, so as to make the provisions more effective in combating corruption among public servants. The Parliament while enacting the law, considered the scenario in different departments and the threat to healthy democratic system and the corruption as a social crime, degrading the institutions and therefore, to achieve the object of the provisions, it is necessary to have a beneficial and liberal approach to the provisions of the Act and other laws so as to achieve the purpose of enactment. In this context, it is necessary to look into as to whether the consent under Section 6 of the DSPE Act is a condition precedent for the commencement of the investigation by the members of the Delhi Special Police?
8. The Apex Court, while considering Section 6 in different other context and occasions held that even a communication by the State Government of its desire that the cases in question should be investigated by the CBI is an implied consent to investigate the cases. Further, considering the fact that the State communicated the consent in the form of a letter from the Under Secretary to the Government stating that he was directed to convey the consent for the functioning of the Delhi Special Police Establishment within the limits of the State, the letter was held as sufficient compliance of the Section. So as regards the consent and the form in which it is to be given, the provision was liberally construed and even the communication by the Under Secretary was held sufficient. The Trial Court has placed the reliance on the decision of the Apex Court (The Management of Advance Insurance Co. Ltd. v. Shri. Gurudasmal and Ors.) wherein the Apex Court, while considering the provisions of the DSPE Act, 1946, reiterated the provisions of Sections 5(1) and 6 of the Act at para 7 and held that Section 6 of the DSPE Act enables the Special Police Establishment to investigate the offences under Section 409 and 407 of IPC with the consent of the State concerned. The question before the Apex Court was not as to whether the consent is a condition precedent or not but was, with regard to the validity of the consent given by the State of Maharastra. In the circumstances, I am of the opinion that the decision of the Apex Court cannot be applied to the facts on hand as the question in this case is different from the one which was before the Hon'ble Apex Court..
9. Admittedly, the Postal Department is under the control of the Central Government and as could be seen, Section 17 of the P.C. Act, 1988 provides:
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) ...x...x...x...x...x
(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 therefore without a warrant:
...
So the perusal of the above Section reveals that in case if the member of the DSPE is to investigate a case under the provisions of the P.C. Act, it is the Inspector of Police, who is authorised to investigate and there is no necessity to obtain an order of the Magistrate under this provision. So, it is only in a case where the State Government or the investigating agency of the State is to hold an investigation, it is an officer of the rank of Dy. S.P., who shall investigate the offence and in case, if an officer, below the rank of Dy. S.P. is to investigate, he has to obtain the permission of the Magistrate. So, the facts of this case reveal that it is the Delhi Police who have received the complaint and held the trap and this investigation having been done by the Delhi Police could be valid, in case, if the consent of the State of Karnataka was obtained as contemplated under Section 6 of the DSPE Act. The mere fact that the Police Inspector of Delhi Special Police received the complaint and held the trap in my opinion is not itself an inherent illegality in the commencement of the investigation, as the said officer under the provisions of the said Act had an authority to investigate without the permission of the Magistrate under Section 17. The question under these circumstances would be whether this investigation which was held by the Member of the Delhi Special Police at Bangalore is inherently illegal in the absence of consent at the commencement of the investigation. In my considered opinion, the consent of the State is a procedural requirement, which does not vitiate the investigation, and at the most, it is an irregularity which can be cured, if the consent is obtained at a later stage. As in this case, the consent was obtained on 17.3.2001 and it is sufficient to validate the investigation held. The irregularity caused in the investigation by not obtaining the consent initially stands cured at a later stage by obtaining the consent of the State and as the Police Inspector of CBI is the designated officer, the permission of the Magistrate is not necessary.
10. Furthermore, as could be seen from the consent granted by the State under notification No. HD 15 PCR 2001 dated 17.3.2001, it is stated as under:
...the Government of Karnataka is pleased to accord consent to the extension of powers and jurisdiction of the members of the Delhi Special Police Establishment at Bangalore for registration of the case and investigation of offences punishable under Sections 7 and 13(2) r/w. 13(1)(d) of PC Act, 1988 against Shri. Wadigeri. C.H. Assistant Superintendent of Post Offices, Channapatna, V. Narayanapa Geeyer, Branch Post Master, Kutagal, Ramanagaram Taluk....
Even to obtain the consent, some procedure has to be followed and a request has to be made by the CBI in writing which has to be placed before the concerned, in the State Government. The perusal of the notification, reveals that after the receipt of the complaint and the trap on 30.1.2001, a request was made by the CBI and the Government after following administrative formalities, granted consent vide notification dated 17.3.2001. As regards the matters under the P.C. Act and more particularly the trap proceedings, immediate action is necessary by the Police to catch the culprits, who demand the birbe and the Police cannot wait for the consent so that the necessary purpose of the trap would be defeated. Furthermore, as the officials to be trapped were of the Postal Department which is under the control of the Central Government, it appears that the CBI Police soon after the receipt of the complaint laid the trap and later requested for the consent of the State in this regard. When the provisions of DSPE Act grant the powers and jurisdiction to Delhi Police, the mere requirement of consent from the State, in my opinion cannot invalidate the investigation, so as to defeat the purpose and object of the P.C. Act. So by the practical and pragmatic approach to the provisions of the DSPE and the P.C. Act 1988, the only inference that could be drawn is that the consent, is not a condition precedent for commencement of the investigation. If it was so intended by the Legislature, a specific mention would have been made about the prior consent while enacting the law. It is the cardinal principle of law that the interpretation of the provisions must be to achieve the object of the law and the investigation into a crime under the provisions of P.C. Act to combat the corruption. The procedural and technical requirements of law would never come in the way of administration of justice. In the circumstances, I am of the opinion that the consent of the State under Section 6 of the DSPE Act even though necessary is not a condition precedent for the commencement of the investigation by Delhi Police and the Trial Court committed an error in rejecting the submission of the CBI. Hence, I answer point No. 1 in the negative.
Re. Point No. 2:
11. The Trial Court relying upon the decision of the Apex Court (State of Andhra Pradesh v. Punati Ramulu and Ors.) held that the complaint lodged in the present case could not be treated as FIR and that it would be a statement made during the investigation and hit by Section 162 Cr.P.C. The facts on hand reveal that the complaint against the respondents for demand of bribe was submitted on 29.1.2001 and there is an endorsement to that effect by the Police Inspector CBI, Bangalore and it is immediately thereafter that the trap was held and it appears that the investigating agency delayed the submission of FIR awaiting the consent of the State and as the consent was granted on 17.3.2001, the FIR was sent to the Magistrate after the notification. It is before framing the charge, the Trial Court applied the principles laid down by the Apex Court, wherein, the Apex Court took into consideration the evidence led during the trial and held that there was delay in the submission of FIR and that it was registered only after due deliberations, consultations and discussions. It is from the evidence led during the course of the trial, the Apex Court held that the statement is hit by the provisions of Section 162 Cr.P.C. The facts in this case are a miles away from the facts on hand. There is no trial held in this case. The records disclose that the complaint was received on 29.1.2001 and it was not registered as the police thought it proper to verify the truthfulness of allegations in the complaint and after the trap, it appears that investigating agency approached the State and soon after the consent was obtained under the notification dated 17.3.2001, the FIR was sent to the Court concerned. The question as regards the delay in the registration, and whether the complaint is hit by the provisions of Section 162 Cr.P.C. and also as to whether, the preparation of FIR was after due deliberations, consultations and discussions, is a matter which has to be considered only during the course of the trial and not before framing the charge. In the circumstances, I am of the opinion that the principles laid down by the Apex Court in the decision referred to above, do not apply to the facts on hand and the Trial Court erred in applying the principle to these facts. Hence, I answer Point No. 2 in the negative.
Re.Point No. 3:
12. The perusal of records reveal that it is the Police Inspector, CBI, who received the complaint and then requested Sri. Ramakrishna, the Police Inspector of Delhi Special Police to lay the trap and as could be seen from the provisions of Section 17 of the P.C. Act, as the Police Inspector is a designated officer to investigate into the offence, there was no necessity to obtain the order of the Magistrate. If a Police Inspector other than that of DSPE was to hold an investigation, the permission of the Magistrate was essential and as could be seen from the decision of the Apex Court, referred to above in the said case, the officer other than a designated officer had started the investigation, before obtaining the permission of the Magistrate and therefore, the Apex Court held that there is contravention of the provisions. Therefore, I do not think that the principles laid down by the Apex Court apply to the facts on hand as the Police Inspector of the CBI who is a designated officer under Section 17 of the P.C. Act had an authority to investigate into the complaint with the consent of the State and as the consent was obtained even though at a later stage, the investigation by the Police Inspector of the Delhi Special Police Establishment is not invalid, as the consent of the State was obtained at a later stage.
13. The CBI has submitted the chargesheet before the Court on 28.9.2001 alongwith the sanction orders, dated 13.9.2001 and 19.9.2001 for prosecution of the respondents and the perusal of the orders reveal the application of mind by the concerned by referring to the facts alleged in the complaint and as it found that there is prima facie material for the prosecution granted the sanction. In the circumstances, I do not find any illegality in the order of sanction. The records also reveal that during the trap, prima facie the procedure was followed and the statements have been recorded with regard to the demand and acceptance of the bribe and the relevant conversation has been recorded. So also the amount offered has been seized and the chemical test has also been done. Prima facie the perusal of the records reveal sufficient material for the alleged offence. The permission for prosecution of the respondents was also granted by the superior officers and in the circumstances, I do not find any circumstance to discharge the accused. Taking into consideration, the receipt of the complaint by the Police Inspector of the CBI i.e., the designated officer, the grant of sanction to prosecute, the consent of the State obtained on 17.3.2001 and as the consent is not a condition precedent for the commencement of the investigation, I am of the opinion that the Trial Court erred in discharging the accused. On the material placed on record and looking to the provisions concerned, I think it just and proper to interfere with the impugned order.
14. Hence, answer Point No. 3 in the affirmative and proceed to pass the following:
ORDER The revision petition is allowed. The order dated 20.8.2004 passed by the XXI Additional City Civil and sessions Judge and Special Judge for CBI cases, Bangalore, in Spl. CC No. 184/2001 is set aside and the matter is remitted to the Trial Court with a direction to proceed against the respondents/accused in accordance with law, in the light of the observations made above.