JUDGMENT
S.T. Kharche, J.
Page 1546
1. Heard the learned Counsel for both sides. Perused the record.
2. This criminal appeal takes exception to the order of conviction dated 08.05.1996 passed by learned Special Judge i.e. Additional Sessions Judge, Amravati in Special Case No. 1 of 1991, whereby the appellant/accused has been convicted for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (for short “the Act”) and he was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default to undergo simple imprisonment for two months and he was also convicted for the offence under Section 13(i)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to under go rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default to undergo simple imprisonment for two months. However, the learned Special Judge directed that the substantive sentence shall run concurrently.
2. The brief case of prosecution is required to be stated as under:
(a) On 30.07.1990 accused was working as Sales Tax Inspector in the Professional Tax Office at Amravati. The father of the complainant Rajkumar Deolasi was running a grocery shop. The professional tax for the year 1988-89 was paid however, the tax was due for the assessment year 1989-90 and 1990-91. The father of the complainant asked him to go to the office of Professional Tax for making payment of the tax. Accordingly he went to the said office on 30.07.1990 at about 1.30 p.m. and carried out with him tax receipt for the assessment year 1988-89. The accused met him in the office and the complainant Rajkumar made some inquiries with him. The accused informed that the rate of professional tax has been revised and he would be required to pay professional tax @ Rs. 300/- instead of Rs. 150/- and that for non-payment of tax within time, he would be required to pay penalty. The accused demanded bribe of Rs. 50/- from him, in case if he wanted to evade penalty and the bribe amount was supposed to be paid up to 5.00 p.m. on that date. The complainant left that office on the pretext that he would consult his father and therefore, he quit the professional tax office and directly went to Anti Corruption Bureau, Amravati and lodged complaint (Exh.17) against the accused.
(b) The said complaint was reduced into writing by Police Inspector (P.1.) Manik Tiware (P.W.6) who summoned panch witnesses viz. Narendra Malavi (P.W.3) and Sahebrao Choudhary (P.W.4). Thereafter demonstration regarding application of phenolphthalein powder to the five currency notes, of Rs. 10/- denomination each, was given in presence of panch witnesses and those currency notes were kept in the shirt pocket of the complainant and the direction was given to the complainant that the amount of bribe should not be paid unless demanded and after acceptance of the said Page 1547 amount he should give signal by scratching his head with left hand and accordingly Pre-trap Panchnama (Exh.31) was drawn.
(c) Thereafter members of Raiding Party proceeded to the office of Professional Tax. The complainant Rajkumar and panch witnesses Narendra directly went to the table of the accused. Latter gave them blank challans which were to be filled and accused had put cross marks and the complainant was supposed to bring signature of his father. The accused made inquiry as to whether the complainant had brought bribe amount as per his demand. The complainant replied in the affirmative and thereafter the accused had came out of his office in the corridor alongwith complainant and panch witnesses and then asked the complainant to pay the bribe amount on which the complainant handed over five currency notes of Rs. 10/- denomination each to the accused.
(d) Those currency notes were counted by the accused by his both hands and then kept the said amount in the pocket of his shirt. The complainant gave signal to the members of the Raiding Party who were standing nearby. The members of the Raiding Party arrived at the spot of incident and apprehended the accused. When the accused noticed that P.1. Manik Tiware and his staff were approaching, the accused took out those currency notes and threw them on the ground. Both the hands of the accused were immediately caught and he was asked to deep his fingers in the sodium carbonate solution whereupon colour of the solution turned to violet. Similarly when the solution of sodium carbonate was sprinkled on the currency notes, it had acquired stains of violet colour and the pocket portion of the shirt of the complainant as well as accused were also deeped into separately prepared solutions of sodium carbonate and it was found that the colour of the same was changed into violet. A detailed post trap Panchnama (Exh.30) was accordingly prepared.
(e) The solution of sodium carbonate was collected in separate bottles which were forwarded to the Chemical Analyser for the purpose of analysis. The report of Chemical Analyser would indicate that phenolphthalein and sodium carbonate are detected in sodium carbonate solutions which were separately collected in five bottles from the spot of incident. P.1. Manik Tiware then forwarded all the papers of investigation to the Additional Commissioner of Sales Tax Mr. M. Rameshkumar for obtaining sanction to prosecute the accused. Mr. M. Rameshkumar accorded sanction on 09.01.1991 and thereafter chargesheet against the accused was filed in the Special Court.
3. The prosecution in order to bring home guilt on the doors of the accused has examined in all six witnesses and relied on direct as well as circumstantial evidence. The accused has examined one defence witness Dattatraya (D.W.No. 1) the defence that has been put forth by the accused is that he has been falsely implicated by Rajkumar Deolasi (P.W. 1) because on that day by going to his office at 12.00 noon he had shown old challan of Rs. 150/- for the year 1988-89 and when he was asked that the tax is revised w.e.f. 01.04.1989 and the total amount payable would be Rs. 300/-, he was enraged and there was exchange of hot words between them in presence of one Shri. Dattatraya Meshram (DW-1), who was working as Junior Clerk. The Page 1548 complainant left office and again returned at 5.00 p.m. and tendered apology. Thereafter two challans were given by the accused to the complainant. The complainant called the accused out side the office and put currency notes in his pocket forcibly. The accused immediately threw the notes on the floor prior to arrival of police.
4. The learned Special Judge, on consideration of the evidence, has recorded findings that the sanction order dated 09.01.1991 issued by Mr. M. Rameshkumar, Additional Commissioner of Sales Tax was valid as the accused was public servant and that he demanded and accepted illegal gratification from the complainant Rajkumar (P.W.1) and that the said gratification was not remuneration to which he was legally entitled, that he accepted such gratification as motive for doing or forbearing to do official act and that the accused by abusing his position as a public servant obtained by illegal means the sum of Rs. 50/- as illegal gratification for himself from the complainant. Consistent with this finding he convicted the accused and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal.
5. The learned Counsel for the accused contended that Mr. M. Rameshkumar, Additional Commissioner of Sales Tax admitted in cross-examination that Anti-Corruption Bureau sent him a draft sanction order which was received by him and he has stated that he did not receive case diary of present Crime No. 76/1990 alongwith service book nor he has perused the antecedents of the accused and therefore, there was total non-application of mind by him and therefore, it cannot be said that he was satisfied that prima-facie case exists against the accused for prosecution for the offence with which accused has been charged. In support of this submission he relied on the decision of the Supreme Court in the case of State (Anti Corruption Branch), Govt. of NCT of Delhi v. Dr. R.C. Anand, , wherein it has been observed in paragraph No. 13 as under:
“The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence including the transcript of the tape record have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See Jaswant Singh v. State of Punjab and State of Bihar v. P.P. Sharma).”
6. The learned Counsel for the accused contended that defence of the accused has been explained by him while recording statement under Section 313 of Cr.P.C. by answering question No. 67 wherein he has stated that the complainant Rajkumar had been to his office at about 12.00′ O clock in the Page 1549 noon, showed old challan of the year 1988-89 and then he was informed that the tax was revised w.e.f. 01.04.1989 and the amount of Rs. 300/- would be payable as revised tax. The complainant replied that as to why this fact was not informed to him about revision of the tax. The accused told him that the said fact was made known to the public by giving advertisement in the newspaper. Thereafter there was hot exchange of words between them in presence of the defence witness Dattatraya (D.W.1). The complainant left the office and again returned to his office in the evening at about 5.00 p.m. and tendered apology. The accused gave him two challans and thereupon the accused called him out side and put currency notes forcibly into his pocket which he had immediately taken out and thrown on the ground before arrival of police.
7. He contended that the learned Special Judge has committed error in appreciating all the evidence while coming to the conclusion that the demand and acceptance of illegal gratification has been proved by the prosecution and as such there is no scope for raising presumption under Section 4(1) of the Act. He contended that P.1. Manik Tiware (P.W.6) admitted that the currency notes were lying on the floor of vharanda when he arrived near the accused.
8. He contended that the accused himself had thrown away the currency notes on the floor and therefore, colour of his fingers bound to change into violet when deeped into solution of sodium carbonate. The defence that has been put-forth by the accused is probable and in such circumstances, the benefit of doubt should be given to the accused because it is not disputed that the total tax payable was revised and total amount payable was Rs. 300/- with penalty of 2%. In order to waive the penalty the complainant was required to deposit the entire tax of Rs. 300/- and therefore, the amount alleged to have been offered near about equal to the penalty. The complainant would be required to pay it. In support of this submission he relied on the decision of the Supreme Court in the case of Bal Krishan Sayal v. State of Punjab, , wherein it was observed as under:
“Where in a case of bribe it was alleged that for waiver of penal rent which was found to be Rs. 102/- in respect of official residence of the complainant, he offered a bribe of Rs. 100/- it was held that to obtain waiver of the rent it was unlikely that a bribe of Rs. 100/- would have been offered. Thus it could not be said that the offence was proved beyond reasonable doubt. Also, there was no clear evidence about what talk preceded the passing of the currency notes. It cannot be said that even if the prosecution had not indicated what exactly the conversation was, once the passing of the currency notes was accepted it was for the accused to explain the circumstance under which the same had been received.”
9. Next submission of the learned Counsel for the accused is that this is a case wherein P.1. Manik Tiware (P.W.6) was working as Police Inspector in Page 1550 Anti-Corruption Bureau and it is he who has received complaint (Exh.7) which was reduced into writing and then he took up investigation of this crime. He contended that as per Section 17 there is no material on record to show that Police Inspector Manik Tiware was authorised to investigate into this offence in accordance with Section 17 of the Act and therefore, the conviction stands vitiated. In support of these submissions he relied on the decision of the Supreme Court in the case of State of M.P. v. Mubarak Ali, , wherein it has been observed as under:
“In a case where an officer, other than the designated officer, seeks to make an investigation he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case.
Thus, where it appears that the Magistrate in granting the permission under Section 5A did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section, the provisions of Section 5A are not complied with.”
And on these facts held that:
“The Police Officer had started investigation before he obtained permission of the Magistrate under Section 5A and had thus contravened its provisions which are mandatory in nature and not directory and the investigation conducted in violation thereof bears stamp of illegality.”
10. The learned Counsel for the accused contended that since there is no reliable evidence on record to prove the demand and acceptance of the illegal gratification, the impugned judgment and order of conviction passed by the Special Judge is not sustainable in law and the appeal may kindly be allowed by giving benefit of doubt to the accused.
11. Mr. Thakare, learned Additional Public Prosecutor, supports impugned judgment and order and contended that the demand and acceptance has been duly established through the testimony of complainant Rajkumar which is corroborated in material particulars by Narendra (P.W.3) who was all the while with the accused at the time of laying trap. He contended that the complainant Rajkumar had gone to the office of accused for payment of tax which was due and there he met the accused. Latter told him that the tax was revised and he would be required to pay tax of Rs. 300/- with penalty. Thereafter the accused demanded Rs. 50/- from the complainant for showing Page 1551 favour that the penalty would be waived. The complainant was somewhat enraged and therefore, he directly went to Anti Corruption Bureau and lodged his oral complaint (Exh.17) which was reduced into writing by P.1. Manik (P.W.6). He contended that the demonstration of application of phenolphthalein powder on the currency notes was given in presence of the panch witnesses and the complainant was given direction that he should not pay the amount of Rs. 50/- which was consisting of five notes of the denomination of Rs. 10/- each, unless demanded.
12. The members of the raiding party went to the office of accused at about 5.00 p.m. and laid a successful trap. The accused initially was sitting in his office and thereafter he accompanied the complainant and panch witness Narendra and had come out in the corridor where he accepted those currency notes and kept it in his pocket after counting it by his both hands. When he sensed that members of Raiding Party are approaching him, he took out those currency notes by his own hands and threw them on the ground.
13. The learned Additional Public Prosecutor contended that both these prosecution witnesses have no axe to grind against accused and there is no inimical relations between them. The testimonies of both these witnesses are corroborated in material particulars by the contents of pre-trap panchnama (Exh.31) as well as post trap panchnama (Exh.30) and moreover, also corroborated by the findings of Chemical Analyser, which would indicate that phenolphthalein and sodium carbonate were detected in the solutions which were collected from the spot of incident in five separate bottles. He contended that the learned Sessions Judge was perfectly justified in coming to the conclusion that the demand and acceptance of illegal gratification has been duly established and that the accused who was working as public servant, by abusing his position as public servant, accepted illegal gratification which was not in the form of legal remuneration and to which he was not legally entitled. He contended that the accused had accepted amount of Rs. 50/- as gratification with a motive for showing favour of waiving penalty and in such circumstances, the defence put-forth by the accused is not probable and there is no reason to discard versions of the aforesaid two witnesses.
14. The learned Additional Public Prosecutor contended that Mr. M. Rameshkumar (P.W.2), Additional Commissioner of Sales Tax had applied his mind to the investigation papers which were forwarded to him by the Police Inspector Manik (P.W.6) and on 09.01.1991 Mr. Rameshkumar issued sanction order for the prosecution of the accused which is perfectly valid. He contended that there is no material on record from which it can be said that the sanction order issued by Mr. M. Rameshkumar in any way is invalid or illegal or issued in a mechanical manner.
15. The learned Additional Public Prosecutor contended that P.1. Manik (P.W.6) has investigated into this crime and the conviction of the accused cannot be vitiated in view of the provisions of Section 17 of the Act. He contended that the accused did not raise this point before the trial Court and therefore, he cannot be allowed to agitate that the investigation carried out by a person who was of the rank of Police Inspector is vitiated without showing as to what prejudice has been caused to him.
Page 1552
16. In support of these submissions he relied on the decision of the Supreme Court in the case of Nanakchand v. State of H.P. reported in AIR (61) 1974 Supreme Court 765, wherein it has been observed that, generally conviction is not vitiated because there has not been strict compliance with the provisions of the Prevention of Corruption Act in the matter of investigation by a Police Officer unless the accused is shown to have been prejudiced and the accused cannot be permitted to raise such contention for the first time before the Appellate Court.
17. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not disputed in this case by the accused that the complainant Rajkumar had been to his office on the date of incident and that he had made inquiry with him and that the complainant is assessee and was defaulter for payment of tax for the year 1989-90 and 1990-91. It is also not disputed that the accused was working as Sales Tax Inspector and supposed to assess the tax. Laying of the trap is also not disputed. Presence of the panch witnesses and police squad at the time of incident is also not disputed. The fact of demonstration regarding application of phenolphthalein powder to the currency notes with sodium carbonate and that the directions which were given to the complainant to make signal by scratching his head after acceptance of currency notes is also not disputed. All these facts find place in the pre-trap panchnama (Exh.31) which was prepared in the office of A.C.B. in presence of panch witness Narendra (P.W.3) and Sahebrao (P.W.4).
18. Similarly, it is also not in dispute that the members of Raiding Party had gone to the office of the accused and at that time the accused was sitting in the office. When the complainant alongwith panch Narendra approached him, he asked as to who was that another person Narendra Malvi, the complainant replied that he was his brother. Thereafter the accused asked the complainant, whether he had brought the amount of Rs. 50/-, on which the complainant answered in the affirmative and the accused took the complainant in the corridor by coming out of the office, with panch Narendra. The accused then demanded the amount, the complainant took out the currency notes from his shirt pocket and handed over the same to the accused, who counted those currency notes by his both hands and sensing that the members of Raiding Party were approaching, threw the currency notes by taking out from his pocket. The accused was practically caught raid handed in the corridor of his office when he accepted amount of Rs. 50/-from the complainant. The phenolphthalein powder was already applied to the said currency notes and therefore, when the solution of sodium carbonate was sprinkled on it, those currency notes acquired stains of violet colour. Similarly, shirt pocket of the accused as well as fingers of his hand were tested in the solution of sodium carbonate and it was found that colour of solution was changed into violet. The solution of sodium carbonate was collected into separate bottles and which were sealed on the spot. A detailed post trap panchnama (Exh.30) was prepared. The sealed bottles of the solution collected from the spot of incident were forwarded to Chemical Analyser and report of Page 1553 Chemical Analyser would indicate that phenolphthalein and sodium carbonate was detected in the liquid i.e. sodium carbonate, which was collected in all the five bottles.
19. The accused has examined defence witness Dattatraya (D.W.1) who was working as a clerk in the office of Professional Tax. On 30.07.1990 he was on duty and was working at Head Quarter at Amravati. His office table is in the office of accused itself and on 30.07.1990 at about 12.30 to 1.00 p.m. one person was making altercations with the accused. He did not remember what sort of talk had taken place between them. On 30.07.1990 at about 5.00 p.m. two persons entered in the office hall of the accused, one of them offered ‘Namaskar’ to the accused and rendered apology and asked the accused to come out side. This witness pleads ignorance as to what has happened thereafter, but admitted that his statement was recorded by the Police. Of course, he had denied suggestions that all the aforesaid facts were stated by him for the first time before the Court, but it appears that this witness is got-up witness. If really he was working and was present in the office near the table of the accused, it was expected of him to know the entire incident that had occurred. But he refused to say as to what had happened at about 5.00 p.m. The version of this defence witness is not corroborated in material particulars by any evidence. The defence that has been stated by the accused while answering to question 67 in the statement recorded under Section 313 of Cr.P.C. is nothing but an afterthought.
20. It is not disputed that the accused was not supposed to receive any amount from the complainant. The professional tax was supposed to be deposited in the Bank. It is an admitted fact that the complainant Rajkumar has no axe to grind against the accused. The complainant was not even knowing the accused earlier. The complainant’s testimony would clearly reveal that the accused had demanded Rs. 50/- for showing favour to him by saying that if the complainant wants to evade penalty he would be required to pay Rs. 50/- to him. The complainant said that he will have to consult his father and therefore, he straightway went to the Anti-Corruption Bureau, lodged oral report, which was then reduced into writing.
21. Thereafter trap was laid in presence of the panch witnesses and the panch witnesses Narendra Malavi (P.W.3) was all the while with the complainant when they went to the office of the accused at about 5.00 p.m. The defence of the accused that the currency notes were thrusted into his pocket cannot be accepted for a simple reason that the accused himself had counted those currency notes in the corridor of his office and at that time the panch witness Narendra was present and there is no reason as to why testimonies of the complainant and Narendra should not be accepted as trustworthy.
22. The conduct of the accused would also points towards his guilt because when he realised that some members of the Raiding Party were approaching him, the accused took out those currency notes from his pocket and threw them on the floor. It has also been brought on record in the cross-examination of the prosecution witness that at that time two Police Constables were at a little distance from the corridor and they were watching all the activities of Page 1554 the complainant who came out of the office of the accused alongwith accused with panch witness Narendra. In such circumstances, thrusting of currency notes itself was not at all possible because members of the raiding party then collected the currency notes from the floor and caught the accused raid handed and when his fingers were dipped in the solution of sodium carbonate, colour of the solution turned into violet which was indicative of the fact that the accused himself had counted the currency notes by his own hands and put those currency notes firstly in his own pocket and threw those currency notes by taking out of the pocket on the floor.
23. There was a little scope for the complainant to forcibly put the currency notes in the pocket of the accused and in such situation this Court is of the considered opinion that the learned Special Judge rightly reached to the conclusion that the accused has demanded and accepted the amount of Rs. 50/- as an illegal gratification to which he was not legally entitled and the same was accepted as motive for showing favour to the complainant for not levying penalty and that the accused, by abusing his position as a public servant, obtained the said amount of Rs. 50/- as illegal gratification. The presumption under Section 20(1) of the Act is also available to the prosecution which does not stand rebutted by the accused on the basis of any cogent and reliable defence. In fact, the defence raised by the accused is nothing but after thought.
24. The learned Counsel for the accused has raised technical submissions that the sanction order issued by Mr. M. Rameshkumar (P.W.2) is invalid. Perusal of the testimony of Mr. M. Rameshkumar would reveal that all the investigation papers of this crime were forwarded by P.I Manik Tiware (P.W.6) to him alongwith draft sanction order. That does not mean that Mr. M. Rameshkumar has mechanically signed the sanction order on 09.01.1991 simply because Mr. M. Rameshkumar did not verify the antecedents of the accused nor perused the service book. It is not possible to accept that the sanction order was issued mechanically without application of mind. Infact, the evidence do indicate that Mr. M. Rameshkumar had satisfied himself that prima-facie case exists against the accused and that is why he has granted sanction for prosecution of the accused for the offence punishable under Section 7 and 13(i)(d) read with Section 13(2) of the Act. Therefore, in such circumstances, it is not possible to accept that the conviction of the accused is illegal for want of valid sanction order. The decision of the Supreme Court in the case of State (Anti Corruption Branch), Govt. of NCT of Delhi v. Dr. R.C. Anand, (cited supra) has no bearing on the facts and circumstances of the present case.
25. It is not suggested to any of the prosecution witnesses that the amount alleged to have been offered near about equal to the amount of penalty that the complainant would be required to pay illegally and therefore, the decision of the Supreme Court in the case of Bal Krishan Sayal v. State of Punjab, (cited supra) relied on by the learned Counsel for the accused also is not of any assistance to him.
Page 1555
26. It is not disputed that P.1. Manik (P.W.6) was working as Police Inspector in Anti Corruption Bureau at the relevant time and it is he who had reduced into writing the complaint (Exh.17) and thereafter arranged for the trap by summoning panch witnesses. He also conducted entire investigation and obtained sanction to prosecute the accused by submitting all the papers of investigation to Mr. M. Rameshkumar, the then Additional Commissioner of Sales Tax.
27. Section 17 of the Act contemplates as under:
“17 : 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) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under Sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(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 therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:
Provided further that an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.”
28. In the case of State of M.P. v. Mubarak Ali, (cited supra), the ratio has been laid down that, in case where an officer, other than the designated officer, seeks to make an investigation he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should be obtained. There is dictum of Supreme Court that Section 5(4) (new Section 17) and proviso to Section 3 of the Act and the corresponding Section 5-A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality.
29. In the present case, the ratio laid down by the Supreme Court in the aforementioned case cannot be made applicable in view of the subsequent Page 1556 decision of the Supreme Court in the Case of Nanakchand v. State of H.P., on which reliance has been placed by the learned A.P.P. It has been held by the Supreme Court in paragraph No. 5 that:
“The second contention of law advanced on behalf of the appellant was that the investigation in the present case was carried out by Kumar who was an Assistant Superintendent of Police below the rank of Deputy Superintendent of Police and this was done without the order of a Magistrate, First Class as required by Section 5A of the Prevention of Corruption Act and the trial and conviction of the appellant following upon such investigation must, therefore, be held to be vitiated. Now, this contention was neither taken before the Special Judge, nor was it urged before the Delhi High Court. It is for the first time before this Court that the appellant has sought to raise this contention. That cannot be permitted to be done. It is now well settled by the decision of this Court in Din Dayal Sharma v. State of U.P. that where an objection that the investigation had been made by an officer below the rank of Deputy Superintendent of Police in contravention of the provisions of the Prevention of Corruption Act has not been raised before the trial Court and the High Court, it cannot be allowed to be raised for the first time in this Court in an appeal by Special Leave. Moreover, it is clear from the decision of this Court in H.N. Rishbud v. State of Delhi , and that has been followed in that generally a conviction is not vitiated because there has not been strict compliance with the provisions of the Prevention of Corruption Act in the matter of investigation by a police officer unless the accused is shown to have been prejudiced. Here there is no such evidence of prejudice.”
30. The aforesaid decision of the Supreme Court is complete answer to the contention raised by the counsel for accused that the conviction has been vitiated. In the present case, there is no material from which it can be said that any prejudice has been caused to the accused and secondly it is undisputed fact that the said contention has not been raised before the trial Court at the earliest possible opportunity. Therefore, the said contention cannot be allowed to be raised for the first time in this appeal and therefore, this Court is of the considered opinion that the investigation though carried out by a police officer who is below the rank of Deputy Superintendent of Police, conviction cannot be vitiated.
31. However, Home Department, Government of Maharashtra has issued notification No. NIS 0389/767/CR-140/POL-3, dated 19.4.1989 which contemplate as under:
“In exercise of the powers conferred by the first proviso to Section 17 of the Prevention of Corruption Act, 1988 (XLIX of 1988), the Government of Maharashtra hereby authorises all the Inspectors of Police in the Anti-Corruption Bureau, Maharashtra State, to investigate any offence Page 1557 punishable under the said Act and to make arrest therefor without arrest warrant.”
In view of this notification, it is obvious that the Police Inspector Manik Tiware (P.W.6) was clearly empowered and authorised to take down the complaint of the complainant Rajkumar and to investigate into the offences under the Act. In such circumstances, the contention of the learned Counsel for the accused is required to be rejected.
32. For the reasons mentioned above, this Court is of the view that no case has been made out for interference into impugned judgment and order of conviction, and consequently the appeal fails and stands dismissed.
The accused shall surrender to his bail and shall appear before Special Court on or before 14th March, 2005 and on his appearance, the learned Special Court i.e. Additional Sessions Judge, shall committee him to prison for undergoing sentence.
In case, the accused fails to appear before the learned Special Judge, he shall secure presence of the accused through Superintendent of Police and then shall commit him to prison for undergoing sentence.