Dr. Suresh Kumar vs State Of U.P.
2012 Latest Caselaw 2998 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.49
 
Criminal Revision No.1736 of 1994
 
Dr Suresh Kumar          Versus              State of U.P.
 
Hon'ble Surendra Singh, J.

Challenge in this revision is the impugned judgement and order dated 18.8.1994 passed by Sri D.P.Singh, III Additional Sessions Judge, Bareilly in Special Case No.7 of 1993 (State of U.P. Versus Suresh Kumar) under Sections 7 and 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Police Station Sheeshgarh, District Bareilly rejecting the prayer for discharge of the revisionist vide application dated 8.5.1994.

The revisionist was Incharge Medical Officer, Primary Health Centre, Sheeshgarh, District Bareilly on the date of the incident i.e. 3.6.1991. He had been apprehended while accepting bribe by laying trap as reenacted in the Prevention of Corruption Act, 1988 (hereinafter referred to as "Act"). F.I.R. was registered against him under Sections 7/13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 on 3.6.1991 at Police Station Sheeshgarh, District Bareilly. The trap was laid by Inspector R.P. Mishra of Vigilance Department and investigation was carried out by the Investigating Officer, Tejpal while charge sheet was submitted after investigation by Inspector Mohd. Vakil against the revisionist under the aforementioned sections. Later on charges were framed against the revisionist under Sections 7/13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Feeling aggrieved, the revisionist moved an application for discharge which was dismissed by the trial court vide order dated 18.8.1994, hence this revision.

Learned counsel appearing on behalf of the revisionist has submitted that entire criminal proceedings under the Act against the revisionist is vitiated and deserves to be quashed inter alias on the following grounds:

I)Because State Government has not authorized the Police Inspector, Tejpal to investigate the case and one another Inspector Mohd. Vakil to file charge sheet to act by any special or general order. Only Deputy Superintendent of Police was authorized to investigate the case under Sections 7/13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 as provided under Section 17-C of the Act, but in the instant case an officer of Inspector Rank has investigated the case and so the provisions being mandatory, it is illegal and against the provisions of law.

II)Because Prevention of Corruption Act, 1947, Criminal Law Amendment Act, 1947 and Criminal Law Amendment Act, 1952 stood repealed on 9.10.1989 by the Prevention of Corruption Act, 1988, thus the saving clause cannot, in any manner, cure any illegality or irregularity committed in laying trap by an Inspector of Police in contravention of Section 17-C of the Act. It can only be made by Deputy Superintendent of Police under the new Act.

III)Because Notification No. 1976-XXXX-BGL-100/1965 dated LKO September 16, 1965 was passed by the State Government under sub-section (1) of Section 5-A of Prevention of Corruption Act, 1947 as amended by Anti Corruption Act, 1964. It also met its death on the date when Prevention of Corruption Act, 1947 was repealed by the Prevention of Corruption Act,1988. So, no benefit of Section 30 of the Act can be extended in the facts and circumstances of the present case.

IV)Because in the absence of any fresh notification by the Government of Uttar Pradesh under Section 17-C of the Act, the police officer not below the rank of Deputy Superintendent of Police to either lay any trap or investigate any case under the present Act. Proviso (2) Section 17 of the Act provides that Inspector of Police can investigate and effect any arrest only, if he is so authorized by the State Government by general or special order in this behalf. Since there is no such general or special order in this behalf by the State Government, the entire action adopted by the Inspector of Police including laying trap, investigation, submission of charge sheet per se in the present case is wholly without any sanction of law.

V)Because the provisions made in the two enactments being inconsistent, as is evident from the scheme of acts, sub-section (2) of Section 30 of the Act would not save the notifications issued under the 1947 Act.

Per contra, learned A.G.A. has contended that Investigating Officers were authorized to investigate the case as provided by the first proviso to sub-section (1) of Section 5-A of 1947 Act. It was further contended that in view of the provisions of Section 30 (2) of the Act, read with Sections 6 and 24 of General Clauses Act, the notifications issued by the State Government under 1947 Act were still in force which empowered the Inspectors of the Police of the Vigilance Department to investigate the case under 1947 Act. In view of this, the arguments advanced by the counsel for the revisionist are wholly misconceived and not competent.

Having heard learned counsel for the revisionist as well as learned A.G.A. and having perused the material placed on the record including the trial court record, I come to the conclusion that questions of law to be adjudicated upon in this revision are as follows:

1.Whether the notifications issued by the State Government in exercise of powers conferred upon it under Section 5-A (1) of Prevention of Corruption Act, 1947 (since repealed) empowering and authorizing the Inspector of Police to investigate the cases registered under the said Act are not saved under the saving provisions of re-enacting provisions of Prevention of Corruption Act.

2.Whether the aforesaid notifications not being inconsistent with the provisions of re-enacted Act continue to be in force and be deemed to be operative till the aforesaid notifications are not superseded or specifically withdrawn.

It is manifestly clear that the provisions made in the I.P.C. were not adequate to meet the exigencies of the time and imperative need was felt to make a law to eradicate the evil of bribery and corruption by the 1947 Act. The said Act was amended twice by the Criminal Law Amendment Act, 1952 and later in 1964. Ultimately the said Act was repealed by 1988 Act. Present new Act has made anti corruption law more effective by widening its coverage and strengthening its provisions.

Chapter IV deals with the investigation into cases under the Act and Section 17 provides:

"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."

Section 30 of the Act provides:

"30 Repeal and saving--(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.

(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.

It is relevant, at this stage, to take note of the provisions of Section 5A of the 1947 Act which provided:

"5A. Investigation into cases under this Act - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank, --

(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police;

(c) in the presidency-town of Bombay, of a Superintendent of Police; and

(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code (45 of 1860) or under Section 5 of this Act without the order of a Presidency 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 Presidency 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 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

For deciding the controversy it is also necessary to take note of the provisions of Sections 6 and 24 of the General Clauses Act which provide as under:

"6. Effect of repeal. -- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

24. Continuation of orders, etc., issued under enactments repealed and re-enacted - Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act or Regulation, shall so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule form or bye-law made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a notification under Section 5 or 5A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re- enacted in such area or part within the meaning of this section."

The words, "anything duly done or suffered thereunder" used in clause (b) of Section 6 are often used by the legislature in saving clause which is intended to provide that unless a different intention appears, the repeal of an Act would not affect anything duly done or suffered thereunder. This view was highlighted by the Apex Court in Hasan Nurani Malak Versus S.M. Ismail, Assistant Charity Commr. Nagpur, AIR 1967 SC 1742. It was held that object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the things done before a particular date from which the repeal of such a pre-existing law takes effect.

Section 24 of the General Clauses Act deals with the effect of repeal and re-enactments of an Act and the object of the section is to preserve the continuity of the notifications, orders, schemes, rules or bye-laws made or issued under the repealed Act unless they are shown to be inconsistent with the provisions of re-enacted statute. Section 6 (b) of the General Clauses Act, however, provides that where any Central Act or regulation made after the commencement of the Act repeals any earlier enactment, then unless a different intention appears, such repeal shall not affect the previous operation of any enactment or anything duly done or suffered thereunder. Section 24 next provides that where any Central Act is repealed or re-enacted with or without modification, then, unless it is otherwise expressly provided, any notification issued under such repealed Act shall, so far as it is inconsistent with the provisions re-enacted, continue in force and be deemed to have been made under the provisions so re-enacted unless it is superseded by any notification or order issued under the provisions so re-enacted Act. The new Act nowhere contains an intention to the contrary signifying that the operation of repealed Act or of a notification issued thereunder to continue in force.

In view of the above, I find no force in the submission of the learned counsel for the revisionist that as reference made in sub-section (2) of Section 30 of the 1988 Act is only to Section 6 of the General Clauses Act, the other provisions of the said Act are not applicable for the purposes of deciding the controversy with respect to the notifications issued under the 1947 Act. There is no dispute that 1988 Act is both repealing and re-enacting the law relating to prevention of corruption to which the provisions of Section 24 of General Clauses Act are specifically applicable. It appears that Section 6 of General Clauses Act applies to the repealed enactments. Legislature in its wisdom thought it proper to make the same specifically applicable in the 1988 Act also which is repealing and re-enacted statute. Reference to Section 6 of the General Clauses Act in sub-section (1) of Section 30 has been made to avoid any confusion or misunderstanding regarding the effect of repeal with regard to the actions taken under the repealed Act. If the legislature had intended not to apply the provisions of Section 24 of General Clauses Act to the 1988 Act, it would have specifically so provided under the enacted law. In the light of the fact that Section 24 of General Clauses Act is specifically applicable to the repealing and re-enacting statute, its exclusion has to be specific and cannot be inferred by twisting the language of the enactments.This view has also been highlighted by Hon'ble Apex Court in State of Punjab Versus Harnek Singh 2002 SCC (Crl) 659.

There is no substance in the arguments of the learned counsel for the revisionist that the provisions made in the two enactments were inconsistent and sub-section (2) of Section 30 would not save the notifications issued under the 1947 Act. The consistency, referred to in sub-section (2) of Section 30 is with respect to the acts done in pursuance of the repealed Act and, therefore, it restricted to such provisions of the Act which come for the interpretation of the Court and not the whole of the scheme of the enactment. Indisputably, there is no inconsistency between Section 5-A of the Prevention of Corruption Act, 1947 and Section 17 of the 1988 Act and provisions of General Clauses Act would be applicable and with the aid of sub-section (2) of Section 30, anything done or any action taken or purported to have been done or taken in pursuance of the 1947 Act to be deemed to have been done or taken or in pursuance of the corresponding provision of the 1988 Act. For this purpose, the 1988 Act, by fiction, shall be deemed to have been in force at the time when aforesaid notifications were issued under the then prevalent corresponding law. It is, therefore, evident from the above discussion and plain reading of relevant sections of the General Clauses Act that notifications issued by the State Government in exercise of powers conferred under Section 5-A of 1947 Act empowering and authorizing Inspectors of Police posted in special enquiry agency of Vigilance Department, the Government of Uttar Pradesh to investigate the cases registered under the said Act were saved under the saving provisions of re-enacted Act are deemed to be in force as having been issued under the re-enacted 1988 Act till aforesaid notifications are specifically superseded or withdrawn or modified under the 1947 Act. The investigation conducted by the Inspector authorized in that behalf under the 1947 Act are held to be proper, legal and valid investigation under the re-enactment Act and do not suffer from manifest illegality or jurisdictional error.

In view of the above discussion, the impugned order does not suffer from any manifest illegality or irregularity. I find no merit in this revision which stands dismissed. The interim order, if any, stands vacated. In this case the trial has already been delayed, the trial court is now directed to proceed with the matter in accordance with law and decide the case on its merits. In view of the fact that the proceedings have been unnecessarily held up by the revisionist by sufficiently long period, the trial court is impressed upon to give priority to present case and make every endeavour to conclude the trial preferably within a period of six months from today.

Let a copy of this order along with trial court record be sent to the trial court by the office within a week.

Date: 18.07.2012

MN/-