of Rajasthan Vs.
Shambhoogiri  Insc 630 (12 October 2004)
K.G. Balakrishnan & Dr. AR. Lakshmanan Dr. AR. Lakshmanan, J.
This appeal is directed against the judgment and order dated 16.01.2001
passed by the High Court of Rajasthan at Jodhpur in S.B. Criminal Appeal No.
198 of 1983 whereby the High Court allowed the appeal filed by the respondent
The said appeal before the High Court was directed against the order dated
03.05.1983 passed by the Special Judge, Anti Corruption Cases, Udaipur in
Criminal Case No. 47 of 1978 convicting the respondent herein Shambhoogiri for
the offence under Section 161 I.P.C. and Section 5(1)(d) and (2) of the
Prevention of Corruption Act, 1947 (hereinafter referred to as "the PC
Act") and sentencing him to undergo two years R.I. and a fine of Rs. 250/-
on each count and in default of payment of fine to further undergo six months
simple imprisonment. Both the sentences were ordered to run concurrently.
The case of the prosecution is as follows:
The respondent was working as Head Constable Police, Arnod, District
Chittorgarh. One Fakir Chand PW-1 was the resident of the same local police
station, where the respondent/accused was posted. There was some pending case
against Fakir Chand PW-1 and his friends before the SDM, Pratap Garh, where he
used to come in the Court of the SDM. The respondent arrested PW-1 under
Section 110 of the Cr.P.C. and demanded illegal gratification of Rs. 500/- from
him and further threatened him for lodging more complaints for not doing so.
Therefore, PW-1 had to give Rs. 100/- to the respondent. The respondent had to
produce PW- 1 before the SDM, Pratapgarh on 12.09.1977 and on the same day PW-1
had to give him Rs. 200/- more. On that date, before appearance in the Court,
PW-1 met PW-7 and told him about the accused/respondent, who advised PW-1 to
give the entire details in written complaint with Rs. 200/- currency notes.
PW-1 did so.
Thereafter, PW-7 had given the written complaint with Rs. 200/- currency
notes to the SDM, Pratapgarh. PW-6, who noted the numbers of the currency notes
in his diary and after getting initials of the SDM, these notes were given to
PW-1 and he was asked to give these currency notes to the respondent/accused.
When the respondent demanded money from PW-1, the same was given in the
presence of PW-5 and PW-7 to him. Thereafter, PW-5 informed the SDM PW-6 who
called the accused in his chamber and asked him to produce Rs. 200/- from his
pocket. The accused is said to have produced that Rs. 200/- before the SDM who
verified the numbers of the currency notes from the entries noted in his diary,
which was found the same. The SDM prepared a recovery Memo of those notes and
thereafter sent the memo of recovery along with the notes to the Collector,
Chittorgarh and also sent this information to the Superintendent of Police.
Thereafter, the Superintendent of Police sent this information to the Anti
Corruption Department and the case was registered under Section 161 I.P.C. and
Section 5(1)(d) and 5(2) of the PC Act. The Deputy S.P. Anti Corruption
Department collected the entire documents and after seeking permission filed
the challan against the accused. On 11.09.1978, charges were framed against the
accused in the Court of the Special Judge Anti Corruption, Jaipur. The
respondent denied the charges and claimed the trial. The case was committed in
the Court of Special Judge, Anti Corruption, Udaipur.
The prosecution examined eight witnesses in support of its case. The trial
Court came to the conclusion that the respondent/accused being a public servant
was guilty for the offence under Section 161 I.P.C. and Section 5(1) and 5(2)
of the PC Act of having accepted Rs. 200/- as bribe and convicted him vide
judgment dated 03.05.1983 in Criminal Case No. 47 of 1978.
Aggrieved against the conviction, the respondent preferred an appeal before
the High Court in which a question of law was raised on behalf of the
respondent that as per Section 5-A of the PC Act the investigation has to be
taken by a person not below the rank of Deputy Superintendent of Police or by
Inspector of Police provided that there is a special authorization in that
regard by the State Government generally or specially for a particular case. It
was further argued on behalf of the respondent that the complaint was lodged
before the SDM, Pratapgarh PW-6 who was not the competent person to investigate
and that he did not have any such authorization generally or specifically to
investigate the case of corruption.
The High Court, on 16.01.2001, has set aside the conviction and sentence
awarded by the Special Judge on the ground that the prosecution based on
investigation having been commenced at the instance of unauthorized person is
without jurisdiction and faulty and, therefore, it cannot be sustained. Aggrieved
against the same, the State of Rajasthan has come up on appeal before us. Leave
was granted on 01.08.2003 by this Court.
Learned counsel for the appellant-State contended that the High Court
seriously erred in holding that there was no compliance of Section 5-A of the
It was contended that the SDM who laid the trap and caught the accused
red-handed was not conducting any investigation and the High Court wrongly
assumed that the investigation by the SDM was without jurisdiction and the
entire proceedings were vitiated by such illegality. The learned Counsel for
the respondent, on the other hand, contended that Section 5-A of the PC Act
authorises only specified person to conduct the investigation and action
conducted by any authority other than the specified authority is illegal and
the accused has been rightly acquitted by the High Court. Section 5-A of the
P.C. Act reads as follows:- "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 165A 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 therefore 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
Presidency Magistratre or a Magistrate of the first class, as the case ma be,
or make arrest therefore, without a warrant:
Provided further that an offence referred to in clause (e) of sub-section
(1) of section 5 shall not be investigate without the order of a police officer
not below the rank of a Superintendent of Police." The above provision
shows that only the authorities specified in sub-clause (a) to (d) of Clause
5-A alone are authorised to conduct the investigation and no Police Officer
below the rank of those categories of officers are not competent to conduct
investigation unless there is an order of a Presidency Magistrate or a
Magistrate of the first class, as the case may be, and the State can authorize
any officer for the purpose of investigation of such crimes under the PC Act
but not below the rank of any Inspector of Police.
In the instant case, the High Court took the view that SDM conducted the
investigation of the case and that he was not competent to do so. This view of
the High Court is incorrect. The SDM got an information from PW 1 that the
accused had been demanding illegal gratification. The SDM wanted to ascertain
whether this allegation is true or not. He asked PW-1 to give a written
complaint with Rs. 200/- currency notes. The SDM noted the numbers of the
currency notes in his diary and these notes were given to PW-1 who, in turn,
gave these currency notes to the accused as illegal gratification. The SDM
called the accused who was working under him and asked him to produce 200
rupees given by PW-1. The accused produced the notes before the SDM and the
numbers of the currency notes were verified with the entries noted earlier by
him in the diary. SDM himself prepared a recovery memo and sent it to the
Superintendent of Police with a complaint alleging that the accused received
bribery. He also sent a note to his superior officer. Here, the SDM was not
doing any investigation. The High Court was of the view that he laid a trap and
recovered the notes and thus conducted an investigation of the crime.
The investigation of the crime would start only after the complaint is given
by the SDM to the Superintendent of Police (Anti-Corruption) and investigation
as such is defined under the Code of Criminal Procedure under Section 2(h) of
the Act which is to the following effect:- "Investigation" includes
all the proceedings under this Code for the collection of evidence conducted by
a police officer or by any person (other than a Magistrate) who is authorised
by a Magistrate in this behalf" Every citizen is competent and entitled to
detect crimes and report and, if any, information regarding the commission of
any crime is known to any person, such information can be passed on to the
police or any other competent authority for taking appropriate action, for
example, under the Food Adulteration Act, an ordinary citizen is competent to
collect samples and send to public analysis and based on the report of the
public analyst, the complaint can be filed before the appropriate authority.
The collection of the samples and the analysis by the public analyst do not
amount to investigation. If a crime is committed in the presence of any
citizen, he can very well ascertain the truth of the fact and make all efforts
to bring home the guilt of the accused. The Sub-Divisional Magistrate had only
discharged his duties as a law abiding citizen and the allegation that SDM had
conducted investigation of the case is incorrect and the High Court seriously
erred in holding that the trial was vitiated owing to the investigation having
been conducted by the SDM. The acquittal of the accused was improper and we set
aside the Judgment of the High Court as the High Court had not considered the
criminal appeal filed by respondent on merits and the same is remitted to the
High Court for proper consideration in accordance with law.
In the result, the appeal is remitted to the High Court for disposal in
accordance with law. The appeal would stand disposed of accordingly.