TMI Blog1998 (7) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Prevention of Corruption Act, 1988 entrusted by the state of Karnataka to the police officers of the State having the requisite rank could still be said to be vitiated because of the fact that the said officers were on deputation to the police wing of the Karnataka State Lok Ayukta at the relevant time? The facts of the case are as follows: The petitioners before us file writ petitions contending that the police officers on deputation with the Lok Ayukta could not have been entrusted with the investigation under section 17 of the prevention of Corruption Act, 1988. In writ petition 17819/94 filed earlier by another public servant which went before a learned single Judge of that Court, the same questions were raised. A learned single Judge of that Court while however rejecting the contention of the Writ Petitioner in writ petition No. 17819/94 that the police officers sent on deputation to the Lok Ayukta to 'assist' the said authority under section 15(1) of the Karnataka State Lok Ayukta Act, 1984 would cease to be police officers for purposes of section 17 of the prevention of corruption Act, 1988, held that the petition was liable to be partly allowed on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 2(s) of the Criminal procedure Code, 1973 whereby Offices of the Lok Ayukta throughout the state were declared as Police stations respect of jurisdiction mentioned against each of them - could not be of any help to the state inasmuch as those police officers on deputation in the police wing of the Lok Ayukta could not have been asked to under take any functions other than those of 'assisting' the Lok Ayukta as specified in section 15(1) of the Lok Ayukta Act, 1984. In the result, the learned single Judge directed that, from the stage at which the investigation stood under the prevention of Corruption Act, 1988, as on the date of the Judgement, the Police wing/Bureau of investigation of the Lok Ayukta 'shall cease' all investigations but that this would not, however, prevent the said agency from transferring the cases for further investigation and appropriate action to any other agency competent to investigate the same. So far as the investigation which was already made by the police officers of the Bureau was concerned, - though it was sustained under de facto doctrine, - it was still observed that the same would be subject to the right of the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appointment of the said Director General and the notification placing the police officers of the Lok Ayukta under his control did not amount to divesting the powers of the Lok ayukta in relation to these police offences nor to vesting the said powers only in the Director General of police. It observed that dual functions could be performed by these officers in relation to the two Acts, namely the Prevention of Corruption Act and the Lok Ayukta Act and such a situation of dual control could not be said to be alien to criminal jurisprudence concerning investigation of crimes. In other words. These officers who were of the requisite rank as per section 17 of the Prevention of Corruption Act, 1988 could not be said to be incompetent to investigate into offences assigned to them under that Act by the competent authority by virtue of statutory powers under Section 17 thereof or to the extent not excluded by the Lok Ayukta. The Division Bench, therefore, held that the further investigation against the petitioners could be continued through the police officers on deputation with the Lok Ayukta. We have also to also to refer to an office Memorandum dated 2.9.1997 issued by the Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as being in excess of jurisdiction of the Lok ayukta. The Division Bench, however, clarified that the setting aside of the said Memorandum did not mean that the Lok Ayukta had no administrative and disciplinary control over the police officers on deputation. It held that in case the Lok ayukta directed a police officer 'not to proceed in relation to a case', such a police officer could not venture to initiate investigation. A direction not to go ahead with entire duties entrusted to him by the Government under the Prevention of Corruption Act, 1988 could be given by the Lok ayukta only under specified and exceptional circumstances such as - when there was excess loaded of work in the Lok Ayukta which might not consequently leave adequate time for investigation of offences being investigated by the Lok Ayukta. These exceptions, the Bench held, were not exhaustive and there could well be other situations where the Lok Ayukta could direct its officers not to take up the extra work entrusted to them by the State under the Prevention of Corruption Act, 1988. The Division Bench thus allowed the Writ Appeal filed by the State and dismissed the Writ Appeal of the petitioner in W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 17 of the Prevention of Corruption Act, 1988 states that notwithstanding anything contained in the Code of Criminal Procedure 1973 (Act 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 area of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan areas notified as such under sub-section (1) of Section 8 of the Code of the Code of Criminal Procedure, 1973(Act 2 of 1924), of an Assistant Commissioner of Police or a police officer of equivalent rank, shall, investigate any offence punishable under that Act without the order of a metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest without a warrant. The first proviso to Section 17 states that when a police officer of a rank below the rank of an Inspector of police can take similar action. The second proviso states that if the offence is one under clause (e) of sub-section (1) of section 13 namely, dealing with possession of assets disproportionate to the know sources of income of the public servant, then such an offence shall not be investigated without the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 3 thereof provides for the strength and composition of the staff of the Lok Ayukta and states that the staff shall be recruited as detailed in the First Schedule of the Rules. Rule 4 of the Rules prescribes the method of recruitment and the minimum qualifications therefor. The first Schedule divides the staff into three wings (i) Administrative and Enquiry Wing (ii) Police Wing and (iii) General Wing. The number of posts in each wing is also specified. So far as the Police Wing is concerned, it is to comprise of one IGP, one Dy. IG, three Superintendents of Police, three non-IPS Superintendents of Police, eleven Dy. Superintendents of Police, apart from 24 Inspectors of police and an equal number of Sub-Inspectors of police besides Head Constables and Drivers, etc. The Second Schedule to the Rules provides for the method of recruitment, according to which so far as staff in the Police Wing of the Lok Ayukta is concerned, it has to be appointed by deputation from the karnataka State Police Service. The only condition is that the Inspector General of Police, Deputy Inspector General of Police (except the Superintendents of Police) have to be IPS Officers. We shall next refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts can be issued so long as they are not inconsistent with rules, that is to say, as long as there is no prohibition in the statutory rules for creation of such posts. The learned single Judge's view that the independence of the Lok Ayukta was under threat was mainly based upon his decision that the post of the Director General created on 21.12.1992 was outside the control of the Lok Ayukta. This view, in our opinion, is not correct for the reasons mentioned above. Therefore, while it is true that as per the notification dated 21.11.1992 issued by the Government, the police wing in the Lok Ayukta is to be under the general and overall control of the said Director General of police, still, in our opinion, the said staff and, for that matter, the Director General himself are under the administrative and disciplinary control of the Lok Ayukta. This result even if it is not achieved by the express language of section 15(4) is achieved by the very fact that the Director General's post is created in the office of the Lok ayukta. By creating the said post of Director General of Police in the Office of the Lok Ayukta and keeping the police wing therein under control and supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988 by the Stated under its statutory powers traceable to the same section? It is true that normally, in respect of officers sent on deputation by the State to another authority, the lending authority should not, after deputation of its officers, entrust extra duties concerning the said lending authority to such officers without the consent of the borrowing authority. If, however, such action is taken by the landing authority by virtue of statutory powers and such a course is not objected to by the borrowing authority, can it be said that the entrustment is without jurisdiction? In our opinion, from a jurisdictional angle, the entrustment being under statutory powers of the State traceable to section 17 of the Prevention of Corruption Act, 1988 the same can not be said to be outside the jurisdiction of the State Government. May be, if it is done without consulting the Lok Ayukta and obtaining its consent, it can only be treated as an issue between the State and the Lok Ayukta and is none of the concern of those public servants against whom these police officers on deputation are conducting the investigation. Such entrustment of duties has statutory backing and obviously also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sues. Of course, in the present case, it is not the Lok Ayukta which has raised any objection but it is he public servants - against whom the investigation is going on - who have raised objections. As already stated, they cannot raise objections if the Lok Ayukta has not raised any objections at the threshold. The above, in our view, will take care of the independence and effective working of the Lok Ayukta and at the same time will enable the State of Karnataka if need be, to exercise its statutory powers under section 17 of the Prevention of Corruption Act, 1988. In the matters before us, as already stated, there has been no objection by the Lok Ayukta at the initial stage of the entrustment of work under section 17 of the Central Act to these police officers on deputation. It is therefore not possible to interdict the further investigation by these officers at this stage at the instance of the public servants. As stated above, if no objection has come from the Lok Ayukta at the time of initial entrustment, it is certainly not permissible for the public servants against whom the investigation is being done, to raise objection. The Division Bench was right in holding that the M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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