JUDGMENT
Vijender Jain, J.
(1) This is a petition for setting aside the order dated 30.9.1985 and for quashing charge dated 16.10.85 framed under Sec. 120B Indian Penal Code read with Sec.420 Indian Penal Code passed by Metropolitan Magistrate, New Delhi.
(2) MR.MATHUR, learned Senior Counsel for the petitioner at the outset has contended that R.C.34/83 Dli on the basis of which Fir was filed was under Sec.120B Indian Penal Code read with Sec.5(2) read with Sec.5(1)(d) of the Prevention of Corruption Act (hereinafter referred as the Act) and no investigation was conducted by the respondent under Sec. 420 Indian Penal Code Mr.Mathur has contended that if the Fir was under the provisions of Prevention of Corruption Act the forum for such trial is before a Special Judge appointed under the Act and prosecution cannot camouflage by choosing not to file and pursue the complaint under the provisions of the Act and file the same under Sec. 420 Indian Penal Code In support of his arguments he has cited Basir-ul-Haq and others Vs. The State of West Bengal reads as under:- “THOUGH,in our judgment, S.195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S.195, Criminal Procedure Code . Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S.195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.”
(3) On the aforesaid authority Mr.Mathur has argued that in the present case the Fir was filed before the Special Judge who was invested with the jurisdiction to try offences under the Act and the charge sheet which has been filed is the same and verbatim it has been taken from the FIR. Though the Fir was filed under the provisions of the Act but the charge sheet has been filed under Sec.420 Indian Penal Code read with Sec. 120B Indian Penal Code and on this basis he has assailed the impugned order of the learned Mm on the ground that the prosecution has charged a person first with the provisions of Prevention of Corruption Act and later on the same has been changed to Sec. 420 Indian Penal Code which is not sustainable in the eye of law. He has cited Raghunath Rai Kumar, Bombay Vs. B.N.khanna, Delhi 1983 Cr.L.J. Noc 154 and on the basis of this authority Mr.Mathur has canvassed before me that in the absence of sanction or determination of the fact that whether the petitioner was a public servant or not, the respondent could not have maintained the present prosecution. The main thrust of the argument of Mr.Mathur is that for purposes of alleged offence committed by the petitioner under the provisions of Sec. 5(2) read with Sec. 5(1)(d) of the Act sanction was necessary and as no sanction was taken, the whole case of the prosecution on this ground would have failed and to plug the loop-hole instead of filing the charge sheet under the provisions of the Act the prosecution has filed the charge sheet under Sec. 420 Indian Penal Code He has cited Kurian V. State of Kerala 1982 Crl.L.J. 780 in support of his argument that the bank employee is a ‘public servant’. Mr.Mathur has further contended that on the basis of charge sheet no offence even otherwise has been made out under Sec. 420 Indian Penal Code Learned counsel for the petitioner has also challenged the charge framed on the ground that the same is not as per the requirements of Sections 211 and 212 of the Code of Criminal Procedure and in his support has cited Century Spinning And Manufacturing Co. Ltd. and Others V. State of Maharashtra which reads as under:- “THE order framing the charges does substantially affect the person’s liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.”
(4) Relying on Union of India Vs. Prafulla Kumar Samal , counsel for the petitioner has argued that the Court cannot act as merely a post- office or a mouthpiece of prosecution but has to consider the broad probability of a case and on the basis of documents produced before the learned Mm there was no occasion for the learned Mm to frame the charge on the basis of the allegations contained in the Fir and the charge sheet.
(5) On the other hand, Mr.Lal learned counsel for the respondent has argued that the petitioner cannot have any grievance as the learned Mm applied its judicial mind and framed the charge under Sec. 420 Indian Penal Code Mr.Lal has further argued that no such ground has been taken by the petitioner that no charge could be framed under Sec. 420 Indian Penal Code because the original R.C. was registered under the provisions of Prevention of Corruption Act. Another contention of learned counsel for the respondent is that in view of Sec. 26 of the General Clauses Act it was open to the prosecution to prosecute the petitioner under Sec. 420 Indian Penal Code and petitioner cannot compel the respondent that he must be prosecuted under the provisions of the Act. Mr.Lal has in support of his arguments cited Chandrakant Vishwanath Jakkal V. The State of Maharashtra 1978 Crl.L.J. 431 which is as follows:- “ON behalf of the accused, however, a point of law was raised. It was submitted that the allegations made against the accused amounted to an offence under Sec. 5(1)(c) of the Prevention of Corruption Act, 1947, because under that section dishonest or fraudulent misappropriation or conversion for his own use by any public servant any property entrusted to him as a public servant or allowing any other person so to do amounts to an offence of criminal misconduct. It was contended that the prosecution ought to have proceeded against the accused under that section and, therefore, should have followed the procedure laid down under that Act. it was submitted that investigation of offences under Prevention of Corruption Act has been entrusted to a special branch and that before starting such investigation, sanction from the Magistrate was required to be taken and, therefore, although the allegations made against the accused also amounted to an offence under S.409 Indian Penal Code ., the prosecution ought to have proceeded against the accused under the Prevention of Corruption Act. It was further submitted that by instituting prosecutions against the accused under S.409 Indian Penal Code the prosecution has clearly evaded the provisions of the Prevention of Corruption Act. It was further submitted that the Magistrate before whom the accused were challaned should not have usurped the jurisdiction of the Special Court established under the Prevention of Corruption Act for trial of such offences, but he should have directed the prosecution to launch a regular prosecution under the Prevention of Corruption Act before a Special Judge. It was Criminal Law Amendment Act of 1952, Special Courts were established to try offences punishable inter alia under S. 5 of the Prevention of Corruption Act, 1947, as also abetment of any such offences and S. 7(1) of that Act provided that notwithstanding anything contained in the Criminal Procedure Code . or any other law, the offences specified in sub- sec.(1) of S.6 shall be tried by a Special Judge only.”
(6) MR.LAL has further contended that the prosecution is not precluded from initiating investigation as a receipt of information is not a condition precedent for investigation and, therefore, if the prosecution has filed the original Fir under the provisions of the Act it could still opt not to file the charge sheet under the provisions of the Act but could maintain successfully the prosecution of the petitioner under the provisions of Sec. 420 Indian Penal Code In support of his submission he has cited State of Uttar Pradesh V. Bhagwant Kishore Joshi .
(7) Another argument advanced by learned counsel for Cbi is that in the present case if at all it is assumed that in the initial R.C. or the Fir Sec. 420 Indian Penal Code was not mentioned that would constitute an irregularity in the investigation which is not fatal unless and until the petitioner so establishes that he has been prejudiced by such irregularity. In support of his submission he has cited The State of Andhra Pradesh V. P.V.Narayana and A.C.Sharma V. Delhi Administration it was held that an illegality committed in the course of investigation does not by itself affect the legality of the trial by an otherwise competent Court unless miscarriage of justice has been caused thereby.
(8) I have given my careful consideration to the arguments advanced by learned counsel for the parties. It is an admitted fact that the original R.C. was filed under Sec. 120B Indian Penal Code and Sec. 5(2) read with Sec. 5(1)(d) of the Prevention of Corruption Act, 1947. I have carefully gone through the FIR. The facts stated therein allege an offence under the aforesaid provisions and the facts stated in the charge sheet which was filed in the Court of learned Mm are similar. It is also the admitted case of the parties that the Fir was filed in the court of Special Judge designated to deal with cases under the provisions of Prevention of Corruption Act. Once that is admitted then it was the Special Judge who had the jurisdiction to deal with the matter. In view of these admitted facts, the authority cited by Mr.Lal in Chandrakant Vishwanath Jakkal’s case (supra) is of no help to the respondent. Petitioner has also challenged the competence of learned Mm that he did not have the jurisdiction in the grounds of petition with further prayer that the petitioner should be discharged. An application was specifically moved before the Mm for discharging the petitioner as that Court had no jurisdiction. The learned Mm, however, dismissed the application on 30.7.1985 on the ground that the prosecution has chosen to prosecute the accused for a graver offence under the Indian Penal Code. Thereafter, the learned Mm proceeded to frame the charge on the basis of charge sheet filed and he framed the charge on 30.9.1985. Sec. 173 Criminal Procedure Code . provides report of police officer on completion of investigation. Sub-sec.(5) of Sec.173 Criminal Procedure Code . further provides that when such a report in respect of case to which Sec. 170 Criminal Procedure Code . applies the police officer shall forward to the magistrate along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the magistrate during investigation. This provision in the Code makes it manifestly clear on the face of admitted facts that it was the prosecution which has invoked the jurisdiction of Special Judge to try the offences under the provisions of Prevention of Corruption Act as the Fir was sent to the Court of Special Judge. That being so the assumption of jurisdiction by the learned Mm under General Law seems to be without jurisdiction. No doubt, there cannot be two opinions about the right of prosecution to file the charge sheet in relation to the offence which the prosecution feels that it had enough evidence to get a successful verdict in its favor and for conviction of the offender. It is also true that no one can coerce or compel the prosecution to file the charge sheet under one particular section. It is the choice of the prosecution. Another factor which is also important is that the provisions made in the Act is not in derogation of General Law but in addition to the provisions made under the General Law. It is also well settled that prosecution can also choose to file a charge sheet for graver offence and leave minor offence. In this case whether 420 Indian Penal Code is graver offence in comparison to offence committed under Sec. 5 of the Act. The punishment for an offence under Sec. 420 Indian Penal Code is 7 years with fine whereas the punishment under Sec. 5 of the Prevention of Corruption Act, 1947 was also for 7 years but with a rider that it shall not be less than one year unlike the provisions of punishment under Sec. 420 Indian Penal Code where there is no minimum punishment provided. Therefore, the reasoning that offence under Sec.420 Indian Penal Code is graver than the offence under Sec. 5 of the Prevention of Corruption Act is not well founded by the trial court.
(9) I see no force in the arguments of the respondent that non-mentioning of Sec. 420 Indian Penal Code in the Fir was merely an irregularity. In the peculiar facts and circumstances of this case, as I have observed earlier initially the R.C. was registered for an offence under the Act, Fir was filed under the Act but later on account of doubt as to whether sanction was required or not, the same was converted into a charge sheet under the provisions of Sec. 420 Indian Penal Code By filing of the R.C. and Fir under the relevant provisions of the Act prosecution has to prove its case on the basis of that FIR. Therefore, I hold that this act of substitution of Sec. 420 Indian Penal Code leaving the prosecution under the Act was not only an irregularity simplicitor but has prejudiced the petitioner.
(10) In my considered opinion once the Fir was filed before the Special Judge under the Provisions of Prevention of Corruption Act on the basis of certain facts disclosed in an Fir the charge sheet which has been filed simply omits Sec. 5 of the Prevention of Corruption Act and instead Sec. 420 Indian Penal Code has been inserted. The reasons seem to be quite obvious. As the prosecution itself was not sure about the status of the petitioner and whether it required sanction or not it seems turned about was taken by the respondent and charge sheet was converted to one for offence under Sec.420 Indian Penal Code The impugned order is silent on this aspect of controversy involved in the matter. Once the competent court of jurisdiction, i.e. Special Judge has assumed jurisdiction in the matter and Fir was filed under the provisions of Sec.173 Criminal Procedure Code . before the Special Judge the learned Mm had no jurisdiction to assume jurisdiction on the basis of said FIR. On this ground alone the petition succeeds. The impugned order has caused prejudiced to the petitioner which has resulted into miscarriage of justice. I, therefore, set aside the impugned order dated 30.9.85. Petition is allowed.