TMI Blog1973 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable under section 120B of the Indian Penal Code read with section 5 (2) of the Prevention of Corruption Act and section 420 I.P.C. Mr. Gupta, the businessman was charged under section 420 I.P.C. as well as section 511 read with section 420 I.P.C. The two Army officers were also charged with offences under section 420 read with section 5 (1) (d) of the Prevention of Corruption Act. The case was filed before the Special Judge on 28-6-1963 and the charge was framed on 13-2-65. After about 18 out of the 52 witnesses cited by the prosecution had been examined the three respondents filed petitions under section 561A read with section 439 of Code of Criminal Procedure before the High Court of Assam Nagaland on 28-3-68, 1-4-68 and 10-4- 68 respectively for quashing the charges. A learned Single Judge allowed these petitions on 23-5-1969 and quashed the charges and the proceedings before the learned Special Judge. He did this on three grounds (1) that the officer who investigated the case was not competent to do so; (2) that the offences that were being tried were noncognizable and the Special Judge could not have taken cognizance of them without sanction under section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Nagaland 275) . This decision has been upheld by this Court in Union of India v. B. N. Ananthapadmanabhiah(A. I. R. 1971 S. C. 1836). But that was a case of a Delhi Magistrate sanctioning an investigation of offences committed in Assam and it was held that such an order was not valid. That decision is. no authority for the proposition that where an offence is committed in more than one place the order of every Magistrate within whose. jurisdiction the offence or part of the offence was committed was necessary in order to enable the investigation to be carried on. All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the ingredients of the offence took place. That criterion is amply satisfied in this case. On principle also such a contention seems to be devoid of any substance. The offence of conspiracy or for that matter any other offence might consist of a series of acts and incidents spread over the whole country. Very often one conspirator or one of the offenders might, not have even met the other conspirator or offender. To accept this contention would be to hold that the Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , respondents that an order was produced for the first time before the learned Judge and it was taken back by the prosecution. If that was so it proves a woeful lack of care on the part of the learned Judge. He should have retained the order on file and called for the necessary records and information in order to find out whether the order was a genuine one or not. We have before us the order of the Superintendent of the Special Police Establishment dated 2-2-63 entrusting the investigation to Inspector Baijal and directing him to obtain the necessary permission from a competent Magistrate for doing so. We have also been shown the papers relating to the prosecution, papers given to the accused under section 173 of the Code of Criminal Procedure. Item 71 of those papers relates to the order of sanction dated 4-2-1963 given by the Magistrate of Tezpur authorizing the Inspector of the S.P.E. to investigate. Thus, there is no doubt at all that Inspecor Baijal had been authorized to investigate into, this case. It only shows rather superficial way the learned Judge chose to deal with this matter. The next question is whether offences under section 161, 165 and 165A of the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deputy Superintendents of Police and superior officers and non- cognizable when they are investigated by officers below the rank of Deputy Superintendents. We fail to see how an offence would be cognizable in certain circumstances and non-cognizable in certain other circumstances. The logical consequences of accepting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction under section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents of Police. One supposes the argument also implies that the fact that an officer- below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of section 5A would not make any difference, to this situation. We, do not consider that this is a reasonable interpretation to place. Under Schedule It of the Code of Criminal Procedure offences under sections 161 to 165 of the Indian Penal Code are shown as cognizable offences. At the end of that Schedule offences punishable with death, imprisonment for life or imprisonment for 7 years and upwards are also shown a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts own in this matter. In G. K. Apte v. Union of India(A.I.R 1980 Assam nagaladd 43) curiously enough the Bench, of which the learned Judge who dealt with this case was a member, took the view that though an offence under section 161 is a cognizable offence, if investigations were made under section 156 of the Code of Criminal Procedure there would be no need for a sanction under section 196A of the Code of Criminal Procedure, and there can be a conviction under section 161 of the Indian Penal Code, but if the investigation is made under section 5A of the Prevention of Corruption Act it will be an investigation into a non-cognizable offence and there should be a sanction under section 196A for the trial following such investigation. For this conclusion the decision of this Court in H. N. Rishbud Inder Singh v. The State of Delhi (A. I. R. 1965 S. C. 196) was relied upon. We can see nothing in that case to support this conclusion. Nor are we able to see how if the investigation into an offence of misconduct punishable under section 5(2) is done by a police officer of high rank the offence is cognizable and if investigated by ail officer of a lower rank it is non-cognizable. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not in reference to another. 8 2 7 The learned Judges specifically dissented from the decision in Union of India v. Mahesh Chandra(A. 1. R. 1957 Madhya Bharat 43). In Public Prosecutor v. Shaik Sheriff (A. 1. R. 1965 A. P. 372) it was held that these offences cannot be treated as non-cognizable offences when investigated by an officer below the rank of Deputy Superintendent of Police simply on the ground that such investigation cannot be done without the order of a Presi- dency Magistrate or a Magistrate of the First Class. In the same way, offences under section 5 of the Act cannot be treated as non-cognizable even when investigated by a low rank officer. Thus, the provision in S. 5A is of the nature of a special provision which applies to offences specified therein which are cognizable offences including those under section 5 under all circumstances. They also referred to the decision in Union of India v. Mahesh Chandra (supra) to the effect that an offence underS. 161 I.P.C. and under sub. s. 2 of S. 5, Prevention of Corruption Act is cogni- zable so far as officers of the rank of a Deputy Superintendent of Police and above are concerned, but so far as the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure, 1898, be charged at the same trial. Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence, and under section 239 persons accused of the same offence committed in the course of the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence, may be charged and tried together. In The State of Andhra Pradesh v. Kandimalla Subbaih Anr.( [1962] 1 S. C. R. 194) this Court observed : No doubt, the offence mentioned in charge No. 1 is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be joint tried in respect of all these offences. To this kind of charge S. 239 would apply. This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of an offence and per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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