Rajasthan High Court - Jodhpur

Suresh Kumar Koli vs State on 9 September, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:39856]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
             S.B. Criminal Appeal No. 135/1993

1 Suresh Kumar Koli S/o Shri Mangi Lal, Resident of Teli
Mohalla,   Bhilwara,   since   deceased    through    his   legal
representatives:-
1/1 Mohini Devi W/o Late Shri Suresh Kumar Fatehpuria,aged
about 58 years
1/2 Sharad Fatehpuria Koli S/o Late Shri Suresh Kumar
Fatehpuria, aged about 40 years
1/3    Anjana    Fatehpuria   Koli  D/o    Late   Shri    Suresh
KumarFatehpuria, aged about 37 years
1/4 Prafful Fethpuria S/o Late Shri Suresh Kumar Fatehpuria,
aged about 36 years
(Appellant/ Legal representatives 1/1 to 1/4 are resident of R/o
S-1-8, Pansal Chouraya, Pratap Nagar, Lebar Colony, Bhilwara
(Raj.)
1/5 Rajshree Fatehpuria W/o Shi Mahesh Kumar Koli, aged
about 39 years, R/o Koli Colony ke Pass, Gadrikhera, Shahpura,
Bhilwara (Raj.).
                                                   ----Appellant
                             Versus

State of Rajasthan
                                                                    ----Respondent
                                 Connected With
                     S.B. Criminal Appeal No. 134/1993
1 Suresh Kumar Koli S/o Shri Mangi Lal, Resident of Teli
Mohalla,   Bhilwara,   since   deceased    through    his   legal
representatives:-
1/1 Mohini Devi W/o Late Shri Suresh Kumar Fatehpuria,aged
about 58 years
1/2 Sharad Fatehpuria Koli S/o Late Shri Suresh Kumar
Fatehpuria, aged about 40 years
1/3    Anjana    Fatehpuria   Koli  D/o    Late   Shri    Suresh
KumarFatehpuria, aged about 37 years
1/4 Prafful Fethpuria S/o Late Shri Suresh Kumar Fatehpuria,
aged about 36 years
(Appellant/ Legal representatives 1/1 to 1/4 are resident of R/o
S-1-8, Pansal Chouraya, Pratap Nagar, Lebar Colony, Bhilwara
(Raj.)
1/5 Rajshree Fatehpuria W/o Shi Mahesh Kumar Koli, aged
about 39 years, R/o Koli Colony ke Pass, Gadrikhera, Shahpura,
Bhilwara (Raj.).
                                                                      ----Appellant
                                       Versus
State of Rajasthan
                                                                    ----Respondent




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For Appellant(s)          :     Mr. Vipul Dharnia
                                Mr. Rohin Bhansali
For Respondent(s)         :     Mr. Shrawan Singh Rathore, Dy.G.A.


                HON'BLE MR. JUSTICE FARJAND ALI
                             Order

Reportable
Judgment Reserved On           :::                04/08/2025
Judgment Pronounced On          :::               09/09/2025
BY THE COURT:-

1. The instant criminal appeals, preferred under Section 374(2)

of the Code of Criminal Procedure (hereinafter to be referred as

"CrPC"), are directed against the judgment dated 23.03.1993

passed by the learned Special Judge, Anti-Corruption Cases,

Bhilwara, in Special Cases No. 10/1991 and 11/1991. By the said

judgment, the appellant was held guilty and sentenced in the

following terms:

(i) Under Section 420 IPC - rigorous imprisonment for one year

with a fine of Rs. 200/-, and in default of payment of fine, to

further undergo simple imprisonment;

(ii) Under Section 161 IPC - rigorous imprisonment for six

months with a fine of Rs. 100/-, and in default of payment of fine,

to further undergo simple imprisonment;

(iii) Under Section 5(1)(d) read with Section 5(2) of the

Prevention of Corruption Act, 1947 (hereinafter to be referred as

"PC Act") - rigorous imprisonment for one year with a fine of Rs.

200/-, and in default of payment of fine, to further undergo simple

imprisonment.

All substantive sentences were ordered to run concurrently.

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Brief facts of S.B. Criminal Appeal No. 135/1993

2. Briefly stating the facts of the case are that Gani Mohd. was

selected for the post of Laboratory Assistant in an interview held

on 27.12.1983. The appellant met him, enquired about his

particulars, and assured him of informing him about his

appointment. On 01.01.1984, the appellant demanded Rs. 2,000/-

for securing the appointment. Gani Mohd. arranged Rs. 1,000/-

from his neighbour Magnaram and, along with another Rs. 1,000/-

of his own, paid the sum to the appellant in the presence of Shafi

Mohd. The appellant later obtained a copy of the appointment

order but further demanded Rs. 1,000/-, for which a pronote was

executed by Gani Mohd. On 29.01.1984, the appellant recovered

this amount from Gulshan, mother of Gani Mohd., by showing her

the pronote.

2.1 On 07.01.1984, Gani Mohd. disclosed the payment of Rs.

3,000/- to his maternal uncle, Rafiq Mohd., who made enquiries.

Initially, on 20.03.1984, Gani Mohd. gave a statement before the

District Education Officer denying payment of any money, but on

the next day, 21.03.1984, he admitted having paid Rs. 3,000/- as

illegal gratification. On this report lodged by Shri Hathiram Mishra,

a case was registered under Sections 161 and 420 IPC and

Section 5(1)(d) read with Section 5(2) of the PC Act. After

investigation and sanction, the challan was filed, and the case,

partly tried at Udaipur, was transferred to Bhilwara, where the

learned Special Judge convicted the appellant.

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Brief facts of S.B. Criminal Appeal No. 134/1993

2.2 The appellant, working in the office of the District Education

Officer, Bhilwara, was accused of demanding money for

appointments to the posts of Laboratory Assistant and Class IV

employee. One Ishaq Mohd., appointed as a part-time Peon in

February 1984, alleged that the appellant demanded ₹1000/- for

his appointment. During an enquiry by the Deputy District

Education Officer, Ishaq Mohd. gave a written statement, and the

appellant, when confronted, admitted the allegations and sought

pardon. The District Education Officer later reported the matter to

the Anti-Corruption Department, which registered a case under

Sections 161, 420 IPC and Section 5(1)(d) read with 5(2) of the

Prevention of Corruption Act. After investigation, a challan was

filed, and the case was tried by the Special Judge, Bhilwara, who

convicted and sentenced the appellant.

3. Heard learned counsel appearing on behalf of the appellant

and learned Dy.G.A. appearing on behalf of the State as well as

perused the material available on record.

4. Having anxiously considered the material placed on record

and upon a thoughtful scrutiny of the evidence, this Court is

persuaded to make the following observations: -

4.1 Section 5A of the PC Act prescribes the category of officers

who alone are competent to investigate offences under the said

Act. For ready reference, Section 5A of the PC Act is reproduced

herein below: -

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"5A Investigation into cases under this Act. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 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 as 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 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.

(2) If, from information received or otherwise, a police officer has reason to suspect the commission of an offence which he is empowered to investigate under sub-section (1) and considers that for the purpose of investigation or inquiry into such offence it is necessary to inspect any bankers' books, then, notwithstanding anything contained in any law for the time being in force, he may inspect any bankers, books in so far as they relate to the accounts of the person suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries there from, and the bank concerned shall be-

bound to assist the police officer in the exercise of his powers under this sub-section :

Provided that no power under this sub-section in relation to the accounts of any person shall be exercised by a police below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police.

Explanation. - In this sub-section, the expressions "bank" and "bankers" "books" shall have the meanings assigned to them in the Bankers' Books Evidence Act, 1891."

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4.2 In the present case, the investigation was admittedly

conducted by an officer lacking the requisite competence. As per

Section 5A of the PC Act, investigations in respect of offences

under Section 161 IPC and Section 5 of the PC Act are required to

be carried out by a police officer not below the rank of Deputy

Superintendent of Police. However, in the instant matter, the

investigation was undertaken by an officer who was not holding

the rank of Deputy Superintendent of Police and, therefore, was

not authorized in law to conduct such investigation. This inherent

defect in competence vitiates the entire proceedings.

5. The Hon'ble Supreme Court in the case of State of A.P. v.

Viswanadula Chetti Babu reported in 2010 (15) SCC 103 has

held that any investigation by an officer below the rank mentioned

in the Act is impermissible. For ready reference, the relevant

paragraphs of the judgment are reproduced herein below:-

"Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, framed under the Andhra Pradesh Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under:

7. Investigating Officer - (1) An offence committed under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account past experience, sense of ability and justice to perceive the implications of the case and investigate it alongwith right lines within the shortest possible time.(2) The investigating officer so appointed under Sub-rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government.

(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer- in-charge of Prosecution and the Director General of Police

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shall review by the end of every quarter the position of all investigations done by the investigating officer.

A bare perusal of the Rule would reveal that the State Government/the Director General of Police/ Superintendent of Police after taking into account the experience etc. of a Deputy Superintendent of Police shall appoint him as the Investigating Officer in cases under the above Act. Sub-rule (3) further provides that the Home Secretary and the Social Welfare Secretary to the Government and other officers in charge shall review the working of the Deputy Superintendent of Police and the investigations done by him at the end of every quarter. It is therefore apparent that authority to investigate has to be conferred on a specified officer not below the rank of Deputy Superintendent of Police.

We are, therefore, of the opinion that in view of the clear mandate of the Rules, it was only a specified Deputy Superintendent of Police who could investigate an offence under the Act. An investigation done by any officer below that rank and not specified as per Rule 7 would not be entitled to investigate any such offence. In the present matter the investigation has been made by an officer of the rank of an Assistant Sub-Inspector of Police. This was not permissible. We endorse the judgment of the High Court in this respect."

5.1 From a bare perusal of the judgment, it is evident that the

Hon'ble Supreme Court, while interpreting a pari materia provision

under the SC/ST Act, has held that any police officer below the

rank of Deputy Superintendent of Police is not competent to

conduct investigation under the Act, and any investigation

conducted by an officer below the said rank is impermissible in

law.

5.2 This Court in Hari Vallabh v. State of Rajasthan (S.B.

Criminal Revision Petition No. 5/1992), and Mathura Lal & Anr.

v. State of Rajasthan, (S.B. Criminal Revision Petition No.

35/1992), decided on 13.02.1998, has already laid down that

when investigation is undertaken by an officer without lawful

authority, the entire proceedings stand vitiated. The investigation

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in the present case, being conducted by an officer below the rank

as mentioned in the PC Act, is vitiated and cannot be sustained.

5.3 The rule adopted in Taylor V. Taylor [(1876) 1 Ch D 426]

aeons ago has stood the test of time. The rule is that where a

power is given to do a certain thing in a certain way, the thing

must be done in that way or not at all and that other methods of

performance are necessarily forbidden. The judicature cannot rush

in where even the legislature warily treads.

6. Apart from this, the prosecution suffers from inherent

infirmities. The independent witnesses, P.W.6 who could have lent

assurance to the prosecution story, have not supported it, before

whom the money is alleged to have been paid; PW.7, from whom

Rs. 1,000/- was said to have been borrowed; and PW.10, the

scribe of the pronote, all turned hostile.

6.1 The solitary testimony of Gani Mohd., without corroboration,

cannot inspire confidence, particularly when it is tainted with

contradictions. By Exhibit P.5 dated 20.03.1984, he gave in writing

that he had not paid any amount to the appellant, only to resile

from it the very next day. Such prevarication demolishes the

credibility of his testimony.

6.2 It is equally important to notice that the appellant was

serving as a Lower Division Clerk in a school and had no concern

with the office of the District Education Officer. The record reveals

that the interview of Gani Mohd. was held on 27.12.1983 and his

appointment order was issued on 31.12.1983, whereas the

allegations of demand are said to have arisen thereafter. Once the

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appointment order had already been issued, there was no

occasion for the appellant to extend any favour or demand

gratification. The explanation offered by the appellant that the

amount of Rs. 1,000/- covered by the pronote was a simple loan

transaction finds corroboration from the scribe and stands

admitted by Gani Mohd. Himself.

7. To constitute an offence under Section 420 IPC, fraudulent

intent must be established from the very inception of the

transaction. In the present case, when the complainant Gani

Mohd. himself has subsequently retracted and admitted that no

money was ever paid, it clearly demonstrates that there was no

inducement at the threshold, thereby negating the ingredients of

cheating.

7.1 The ingredients essential to constitute an offence under

Section 161 IPC are:

(i) that the accused was a public servant;

(ii) that he accepted, obtained, or attempted to obtain gratification

other than legal remuneration;

(iii) that such gratification was demanded or received as a motive

or reward for doing or forbearing to do any official act or for

showing favour or disfavour in the discharge of official functions;

and

(iv) that such gratification was not legal remuneration to which he

was otherwise entitled.

In the present case, the prosecution has conspicuously failed

to establish these indispensable elements qua the appellant. The

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proof of demand, acceptance, and the requisite nexus with official

duty is glaringly absent, thereby rendering the conviction wholly

unsustainable.

7.2 This Court is of the firm view that the prosecution has failed

to establish the essential ingredients of the offences under