TMI Blog1968 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... and stomach pain he was sent to the appellant along with a sick note for treatment. The case of PW 4 was that when he went to the appellant for treatment the appellant demanded and received, from him ₹ 2 as illegal gratification for treating him. Thereafter he was. treated by the appellant on the 5th, 7th. 9th and 12th of that month. By the 12th he had completely recovered and, therefore he wanted to rejoin duty and for that purpose he requested the appellant to give him a fitness certificate. For issuing him that certificate the appellant demanded ₹ 5 as bribe and he further told PW 4 that unless he paid him the said sum by March 14, 1964, he (appellant) would remove PW 4's name from, the sick list. After this talk, when PW 4 was going out of the hospital he met a person by name Babu.- He complained to Babu about the behavior of the appellant. The said person told him that he would meet him again on March 14, 1964, but on March 14 Mr. A. C. Das PW 17, Inspector of Special Police Establishment met PW 4 in his house and ascertained from him all that had happened. Thereafter PW 4 met PW 17 again at the railway station as desired by the latter. From there both of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW 17 who was only an Inspector of police could not have investigated the case without the prior permission of a magistrate of the first class; on March 12, 1964 he merely applied for and obtained from a first class magistrate permission to lay a trap; the permission to, investigate the case was obtained by him only on the 21st but by that time the entire investigation was over; hence there was no valid investigation. The application made by PW 17 on the 12th was under s. 5A of the Prevention of Corruption Act Therein, it is true, he had only asked for permission to lay a trap. It must be remembered that the permission given was one under s. 5A. A permission under that provision is a permission to investigate the case. Laying the trap is a part of the investigation. It is so laid down by this Court in State of Madhya Pradesh v. Mubarak Ali([1959] 2 S.C.R.201.). An investigation is one and indivisible.[ All steps taken by PW 17 to ascertain the truth of the complaint made by PW 4 alleging that the appellant was attempting to obtain bribe from him, come within the expression 'investigation' under s. 4(1) of the Code of Criminal Procedure. 'Investigation' includes all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A also provides for an alternative procedure. An officer below the rank of deputy superintendent can investigate those: offenses if he obtains the previous permission of a first-class magistrate. The legislature proceeded on the basis that except for good-reasons the magistrate would not accord permission for officers below the rank of a deputy superintendent to investigate those offenses. But exigencies of administrative convenience may require I that some of those cases have to be investigated by officers below the rank of Deputy Superintendents. For that reason it was provided that' in such circumstances the permission of a. magistrate of the first class should be obtained. This Court has laid down in State of Madhya Pradesh v. Mubarak Ali([1959] 2 S.C.R. 201.) that the statutory safeguards under S. 5A must strictly be complied with for they are. conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings. A magistrate, can-not surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the sum in question as a motive or reward for issuing the fit certificate. Mr. Mookherjea's contention was that the presumption in question does not arise unless the prosecution proves that the amount in question was paid as a bribe. He urged that the presumption under s. 4 arises only when the prosecution proves that the Appellant had received any gratification (other than legal remuneration) or any valuable thing from any person . He laid stress on the Word gratification' and according to him the word 'gratification' can only mean something that is given as a corrupt reward. If this contention of Mr. Mookherjea is correct then the presumption in question would become absolutely useless. It is not necessary to go into this question in any great detail as the question is no more res Integra. In C.I. Emden v.State of U.P. ([1960] 2 S.C.R. 592.) this Court held that the presumption under s. 4 arose when it was shown that the Accused had received the stated amount and that the, said amount Was not legal remuneration. The word 'gratification' in s. 4(1) was given its literal dictionary meaning of satisfaction of appetite or desire; it could not be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we see no justification for adding any clause to qualify the word 'gratification'; the view for which the appellant contends in effect amounts to adding a qualifying clause to describe gratification. The same view was taken by this Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra(A.T.R. 1964 S.C. 575) and again in V. D. Jhangan v. State of Uttar Pradesh([1966] 3 S.C.R. 736.). It was next contended that to discharge the burden placed on the appellant under s. 4 all that he has to do is to offer a reasonable explanation, the burden placed on him by s. 4(1) being somewhat analogous to that 'Placed on an accused under s. 114 of the Evidence Act. This branch of the law is also well-settled by the decisions of' this Court. Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Under that provision the court is not bound to draw any presumption of fact. 'It is within its discretion to draw a presumption or not. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rruption Act is invalid as he was not the authority competent to remove the appellant from his office and hence the prosecution is vitiated. Section 6(1), to the extent it is material for our present purpose, reads : No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or Under sub-section (2) or sub-section 3A of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a)........................... (b)........................... (c) in the case of any other person, of the authority competent to remove him from his office. This Court has laid down in R. R. Chari v. State of U.P.( [1963] S.C.R. 121.); as well as in several other decisions that no court can validly take cognizance of any of the offenses mentioned in s. 6(1) of the Prevention of Corruption Act without the previous sanction of the authority competent to remove from office the accused. Without a valid sanction the court had no jurisdiction to try the case. Hence, if the sanction accorded in: this case is invalid then the appellant is entitled to be acquitted. P.W. I deposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emove him from service. In view of appendix 3 8 of the Indian Railways Establishment Code Vol. III (4th re-print, dated 26-7-1962), we may take it that P.W. 1 was the head of the department to which the appellant belongs. The next question is whether the head of his department was competent to remove the appellant from his service. As per r. 134 of the Indian Railway Establishment Code, pub- lished in 1959, authorities competent to make first appointment to non-gazetted posts in the Indian Railways are the General Manager, the Chief Administrative Officer or lower authority to whom he may delegate power. There is no evidence to show that this power has been delegated to the heads of the department. No provision in the Indian Railway Establishment Code 1959 prescribing the authorities competent to remove from office a class III officer was brought to our notice. But the prefatory note to Vol. I of the Code says, The revised Chapter XVII and revised Appendices I and XII will be printed later for inclusion in this edition. Till such times these are printed, the rules and provisions contained in Chapter XVII and Appendices IV and XVIII in the 1951 Edition (Reprint) as, amended from ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
