Bombay High Court
Rajaram Banderao Kulkarni vs The State Of Maharashtra on 18 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:2765
Darshan Patil 908-apeal-475-98.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 475 OF 1998
RAJARAM BANDERAO KULKARNI ..APPELLANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
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Adv. Aditi Rajput a/w Adv. Sanjeev Kadam a/w Adv. Pratik
Deshmukh a/w Adv. Prashant Raut for the Appellant.
Ms. S.D. Shinde, APP for the State.
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CORAM : M. S. KARNIK, J.
DATE : JANUARY 18, 2024
ORAL JUDGMENT:
1. This appeal challenges the judgment and order of
conviction in respect of case No. 16 of 1994 dated
15/04/1998 arising out of C.R. No. 251 of 1994 registered
with Barshi Police Station passed by the Special Judge
Solapur for the offences punishable under Sections 7 and
13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988 (hereafter referred as "PC Act" for
short). The appellant by the impugned judgment and order
has been sentenced to suffer rigorous imprisonment for 1½
years and to pay the fine in the sum of Rs.1000/-. The
appellant was further convicted for the offences punishable
Darshan Patil 908-apeal-475-98.docx
under Section 7 of the PC Act and sentenced to suffer
rigorous imprisonment for 9 months and to pay the fine in
the sum of Rs.500/-.
2. The appellant at the relevant time was working as a
Revenue Circle Officer, Division Pangari, Taluka Barshi,
District Solapur. On 24/05/1994, an application was
submitted by the complainant - PW-4 for effecting a
mutation entry to the appellant. It is the case of the
prosecution that the appellant demanded a bribe amount of
Rs.500/- for effecting such mutation entry. Accordingly, a
trap was laid. The complainant visited the residence of the
appellant on 29/05/1994 and paid the bribe amount which
had been smeared with Anthracene powder. The
investigation was carried out by PW-5 who at the relevant
time was working as a Police Inspector (hereafter referred
to as "P.I." for short) of the Anti-Corruption Bureau
(hereafter referred to as "ACB" for short).
3. Learned counsel for the appellant Ms. Aditi Rajput
submitted that the appeal must succeed only on the ground
that the investigation was carried out by PW-5, an officer
Darshan Patil 908-apeal-475-98.docx
not empowered to carry out such investigation which does
not accord with the mandatory condition enumerated in
Section 17 of the PC Act. In support of her submissions,
learned counsel for the appellant relied on the decision of
the Supreme Court in State Inspector of Police,
Vishakhapatnam Vs. Surya Sankaram Karri1. Reliance is
also placed on the decision in Vishnu Kondaji Jadhav Vs.
State of Maharashtra2.
4. Learned APP in response invited my attention to the
letter addressed from the office of the Deputy
Superintendent of Police, ACB, Solapur which is at Exhibit
17 to urge that the conditions requisite for carrying out the
investigation in terms of Section 17 are sufficiently complied
with. In support of her submissions, learned APP relied
upon the decision of this Court in Manikrao Abaji Thonge Vs.
The State of Maharashtra3 to submit that this issue was
never raised before the trial Court at an early stage and
hence it is not open for the appellant to agitate this issue
for the first time in this appeal.
(2006) 7 Supreme Court Cases 172
1995 Supp (4) Supreme Court Cases 408
1993 CRI.L.J. 3796
Darshan Patil 908-apeal-475-98.docx
5. I have heard learned counsel for the parties. I have
perused the paperbook, notes of evidence and the materials
on record. I have gone through the judgment and order of
the trial Court.
6. In the present case, the investigation was carried out
by the P.I. - PW-5. The question is whether the PW-5 is
authorised to investigate the offence in view of the mandate
of Section 17 of the PC Act. In the examination in chief of
PW-5, it is stated that he was working as P.I., ACB from
September 1989 to August 1996. The complaint recorded
by him is at Exhibit 48. There is no dispute that the
investigation was carried out by PW-5. On 28/05/1994, a
request letter was sent by PW-5 to S.P. (Rural), Solapur, to
depute one lady constable to the PW-5 office on the same
day at 5.30 p.m. This letter though from the office of
Superintendent of Police, was addressed by the PW-5 and
not by the Superintendent of Police. In cross-examination,
PW-5 deposed that at the time of joining ACB, his rank was
in the cadre of Police Sub-Inspector (PSI). He deposed that
the rank had not changed. In cross-examination, PW-5
Darshan Patil 908-apeal-475-98.docx
specifically stated that during the relevant period, Deputy
Superintendent of Police, Shri Chavan was his superior.
PW-5 admitted that he did not obtain any permission from
the Deputy Superintendent of Police or Magistrate to
arrange the trap. Though the learned counsel for the
appellant urged that PW-5 at the relevant time was
discharging duties as PSI, in any case, even accepting the
contentions of the learned APP one thing is very clear that
PW-5 was not above the rank of P.I.
7. Let me proceed on the footing that the PW-5 at the
relevant time was discharging his duties as P.I. It is the
contention of the learned APP that the objection as regards
the competency of the PW-5 to investigate the case was
never raised before the trial Court. From the deposition of
PW-5, it clearly reveals that the competency of the PW-5 to
carry out the investigation was the specific case of the
appellant before the trial Court.
8. The trial Court in paragraph No.91 of the impugned
judgment and order observed thus:-
"91. Added to this, objection as regards breach of
Darshan Patil 908-apeal-475-98.docx
mandatory provisions in the matter of investigation
and resultant prejudice to the accused must be taken
at the earliest possible opportunity. It has been held
by the Supreme Court in Din Dayal Sharma -vs-
State (AIR 1959 SC 831) that where the
investigation was made by an officer below the rank
of Deputy Superintendent of Police in contravention
of the provisions of Sec. 5A (Old Act) the objection
should have been taken at a sufficiently early stage.
Reverting to the present case, charge was framed
against the accused at Exh. 2 on 26th June, 1996.
That time the accused did not raise any objection by
filing any application or by making any oral
statement. The accused submitted to the charge and
pleaded not guilty. He then submitted to the trial.
Then the trial proceeded. It was only after the entire
evidence was recorded and trial was over, the
accused has raised this objection. Had the objection
being taken at earliest possible opportunity the court
would have directed re-investigation or any other
suitable order. This conduct of the accused also
needs to be considered while testing the objection as
regards competency of PI Shaikh to investigate the
matter. In this background and for the aforesaid
reasons I turn down the objection that the
investigation was conducted by incompetent Police
Officer and trial is vitiated."
(emphasis supplied)
It is thus seen that the trial Court was of the opinion that it
was only after the entire evidence was recorded and the
trial was over, the accused raised this objection.
9. In my view, the observations of the trial Court are in
the teeth of Section 17 PC Act. The appellant had during the
course of cross-examination of PW-5 clearly elicited the
Darshan Patil 908-apeal-475-98.docx
admission from the PW-5 that he did not obtain any
permission from the Deputy Superintendent of Police to
arrange a trap nor was any permission was obtained from
the Magistrate to arrange the trap. Moreover, in the
synopsis of the argument on behalf of the appellant (Exhibit
73), the point whether the investigation is legal, valid and
proper on the ground that mandatory conditions of Section
17 are not complied with, is specifically raised. Thus from
the evidence of PW-5, it is observed that he was not
authorised to investigate the offence. One thing is clear that
the investigation was done by the person not authorised to
conduct the investigation in terms of Section 17 of the PC
Act. The observations of the trial Court that the objection
was raised by the appellant only after the entire evidence
was recorded is not sustainable. The Investigating Officer
was examined as PW-5. It is during the course of his
examination that the appellant cross examined him in a
manner such that it clearly revealed that he was not the
person authorised to investigate the offence. In any case, I
will discuss on the resultant prejudice which has a direct
Darshan Patil 908-apeal-475-98.docx
impact on the fairness of the investigation in the present
facts.
10. It is important to refer to Section 17 of the PC Act,
which reads thus:-
"Section 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
(b) 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."
11. The Supreme Court had an occasion to consider a
Darshan Patil 908-apeal-475-98.docx
somewhat similar question that arose in Vishnu Kondaji
Jadhav (supra). Their Lordships were dealing with Section
5-A of the Prevention of Corruption Act, 1947. So far as the
persons authorised to investigate an offence are concerned,
Section 5-A is similarly worded as Section 17 of the PC Act.
In paragraph Nos. 5 and 6 Their Lordships held thus:-
"5. It is clear from the provisions of the section that
for investigation into every offence under the Act, it
was necessary for the Inspector of Police who was
admittedly not authorised by the State Government
either by general or special order, to take the prior
permission of the Magistrate. The High Court has
rejected this contention on the ground that the
permission was taken by the Inspector of Police on
earlier two occasions and the second permission
taken on 20-6-1975 accrued for the benefit of the
investigation into the demand for bribe made by the
appellant on 6-7-1975. For the purpose, the High
Court relied upon a decision of this Court in State of
U.P. v. Bhagwant Kishore Joshi. We are afraid that
the High Court has misled itself by relying upon the
said decision. In that case, the accused had
committed a criminal breach of trust in respect of a
certain sum of money and he was booked for the
said breach of trust and the investigation was made
in respect of the same offence although the
permission to investigate under the present Act was
taken at a later stage. It is on these facts that the
Court held that the investigation being indivisible as
it was related to the very same act of the breach of
trust, the permission taken once accrued for the
entire investigation, whatever the stages in the
investigation.
6. In the present case, admittedly, on three different
occasions, the demand for money was made. The
first was on 13-5-1975, the second on 20-6-1975
Darshan Patil 908-apeal-475-98.docx
and the third on 5-7-1975. Each demand constituted
an offence by itself to investigate which permission
for investigation was necessary under Section 5-A of
the Act. Each investigation in the circumstances
constituted an independent investigation into an
independent offence. Hence, for investigating the
offence for the demand of bribe made on the third
occasion, i.e. on 5-7-1975, it was necessary to take
a separate and independent permission from the
Magistrate which was admittedly not done. Since the
provisions of Section 5-A relating to the obtaining of
the permission from the Magistrate are mandatory
before investigation is launched into the offence, the
appellant is entitled to succeed."
Thus, Vishnu Kondaji Jadhav (supra) was a case where on
three different occasions the demand for money was made.
Their Lordships held that each demand constituted an
offence by itself to investigate which permission for
investigation was necessary under Section 5-A of the Act. It
was held that each investigation in the circumstances
constituted an independent investigation into an
independent offence. Their Lordships held that Section 5-A
relating to obtaining permission from the Magistrate is
mandatory before the investigation is launched into the
offence.
12. It is also important to note that the second proviso of
Section 17 came up for consideration before the Supreme
Darshan Patil 908-apeal-475-98.docx
Court in the case of State Inspector of Police,
Vishakhapatnam Vs. Surya Sankaram Karri (supra). In
paragraph No.13, the Hon'ble Supreme Court observed
thus:-
"13. Provisions of the 1988 Act, no doubt, like the
1947 Act seek to protect public servant from a
vexatious prosecution. Section 17 provides for
investigation by a person authorised in this behalf.
The said provision contains a non obstante clause. It
makes investigation only by police officers of the
ranks specified therein to be imperative in character.
The second proviso appended to Section 17 of the
Act provides 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.
Authorisation by a Superintendent of Police in favour
of an officer so as to enable him to carry out
investigation in terms of Section 17 of the Act is a
statutory one. The power to grant such sanction has
been conferred upon the authorities not below the
rank of a Superintendent of Police. The proviso uses
a negative expression. It also uses the expression
"shall". Ex facie it is mandatory in character. When
the authority of a person to carry out investigation is
questioned on the ground that he did not fulfil the
statutory requirements laid down therefor in terms of
the second proviso, the burden, undoubtedly, was on
the prosecution to prove the same. It has not been
disputed before us that the investigating officer, PW
41, did not produce any record to show that he had
been so authorised. Shri K. Biswal, the Investigating
Officer, while examining himself as PW 41, admitted
that he had not filed any authorisation letter stating:
"I have received the specific authorisation from SP,
CBI, to register a case but I have not filed the said
authorisation letter.""
(emphasis supplied)
Darshan Patil 908-apeal-475-98.docx
It is also necessary to refer to paragraph Nos. 19, 20 and
21 where Their Lordships have observed thus:-
"19. Illegality apart, the manner in which the
investigation was conducted, is condemnable. The
least that a court of law would expect from the
prosecution is that the investigation would be a fair
one. It would not only be carried out from the stand
of the prosecution, but also the defence, particularly,
in view of the fact that the onus of proof may shift to
the accused at a later stage. The evidence of PW 41
raises doubts about his bona fides. Why he did not
examine important witnesses and as to why he had
not taken into consideration the relevant
documentary evidence has not been explained. He
did not even care to ascertain the correctness or
otherwise of the status of both the respondent and
his wife before the Income Tax Department. Above
all, he did not produce before the court the
statements made by the respondent, his wife and
those of his sons, although they were relevant. Had
the statements of DW 3 and DW 4 been produced
before, the learned Special Judge might not have
opined that the sons of the respondent, other than
DW 2, did not make any contribution to their parents
at all. If such statements were made by the said
witnesses before the investigating officer, omission
on the part of DW 1, the wife of the respondent, to
state the same before the Special Judge might have
taken a back seat and the statements of other sons
of the respondent, namely, DW 3 and DW 4 might
not have been ignored by the learned Special Judge.
20. The courts are obliged to go into the question of
prejudice of the accused when the main investigation
is concluded without a valid sanction.
(See State of A.P. v. P.V. Narayana.)
21. It is true that only on the basis of the illegal
investigation a proceeding may not be quashed
unless miscarriage of justice is shown, but, in this
case, as we have noticed hereinbefore, the
Darshan Patil 908-apeal-475-98.docx
respondent had suffered miscarriage of justice as the
investigation made by PW 41 was not fair."
(emphasis mine)
13. I have no hesitation in holding that the investigation is
illegal as it was carried by an officer not authorised to
investigate the offence. There is no authorisation in favour
of PW-5 by a general or special order by the State
Government. Neither has the PW-5 obtained permission
from the Judicial Magistrate First Class to investigate into
the offence.
14. Now let me examine the prejudice of the appellant-
accused. In the cross-examination, PW-5 deposed that he
had one brother - Abdul Latif Saheblal Shaikh. His father
had three real sisters by the name Daulatbai, Habibbi and
Aminabi. PW-5 admitted that Aminabi is the wife of the
brother of the complainant. PW-5 voluntarily says that he
was not knowing this fact till 28/06/1994. PW-5 denies the
suggestion that his voluntary statement is false. It is
material to note that PW-5 admits that subsequent to the
trap he had written a letter to Tahasildar Barshi to do the
work of the complainant and send a report. It is also
Darshan Patil 908-apeal-475-98.docx
pertinent to note on being questioned by the Court during
the cross-examination as regards with what object the
communication was sent to the Tahasildar Barshi to do the
work of the complainant, PW-5 said that despite the
reminder, the work of the complainant was not done. PW-5
deposed that form No.9 was attached to the papers and a
copy of the same was sent to the Tahasildar so that the
complainant's work was not withheld for the want of form
No.9. According to me, it is highly improbable that PW-5, a
P.I., would be blissfully unaware that he is so closely related
to the complainant. The question is whether, the task of
getting the complainant's work done from the Tahasildar, is
a part of the investigation and if not, why would PW-5
oblige the complainant in this manner by going out of his
way. It is obvious that this indulgence was because PW-5 is
a close relative of the complainant. It is evident that PW-5
is not truthful when he deposes that he was not knowing
that he was related to the complainant till 28/06/1994. This
clearly indicates that PW-5 was interested in the success of
the investigation being a close relative of the complainant.
Darshan Patil 908-apeal-475-98.docx
The manner in which PW-5 deposed and has gone all out of
his way to get the complainant's work done which was not
part of his duty as an Investigating Officer creates a serious
doubt on the fairness of the investigation. The appellant has
thereby suffered a serious miscarriage of justice as the
investigation made by PW-5, an officer not authorised to
carry out the investigation, cannot be regarded as fair.
15. For the reasons above-mentioned, I am of the opinion
that the impugned judgment and order of conviction in
respect of case No. 16 of 1994 needs to be quashed and set
aside.
16. The appeal is, therefore, allowed. The appellant stands
acquitted. The fine amount be refunded to the appellant.
17. The appeal is disposed of accordingly.
(M. S. KARNIK, J.)
Signed by: Darshan Patil
Designation: PA To Honourable Judge
Date: 20/01/2024 15:35:34
