G.A. Ethiraj vs The State

M. Karpagavinayagam, J.—A Deputy Superintendent of Police, Law and Order, having caught in a web of trap in corruption case

organised by an Inspector of Police, Vigilance and Anit-Corruption, has been for a long number of years trying to wriggle out of the same by

raising the ground that the investigation done by the subordinate officer, is illegal, as it is unauthorised.

Mr. G.A. Ethiraj, the petitioner herein was the Deputy Superintendent of Police, Aranthangi, Pudukottai District in the year 1994-95. One Syed

Ibrahim of Edayankadu gave a complaint to one Jayapaul, the Inspector of Police, Vigilance and Anti-Corruption, Aranthangi, on 27-5-1995

alleging that the Deputy Superintendent of Police the petitioner herein demanded a bribe of Rs. 10.000/- for taking effective action against some

persons mentioned in the complaint given by the said Syed Ibrahim which was earlier registered in Crime No. 105/95 for the offence of theft. T his

complaint was registered in Crime No. 2/95 for the offence u/s 7 of the Prevention of Corruption Act and a trap was organised. Accordingly, on

27-5-1995 at about 2.45 pm. the petitioner at his residence at Aranthangi accepted the bribe amount from the said Syed Ibrahim. After receiving

the pre-arranged signal, the Inspector of Police with his party conducted the test on the petitioner''s hands which proved positive. Thereafter, the

amount also was recovered from the pocket of the petitioner''s shirt. After his arrest, he was released on bail. After completion of the investigation

and after obtaining sanction from the Government, the charge sheet was filed against the petitioner on 10-4-1996 before the Court of Special

Judge, Pudukottai for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred

to as ''the Act''). This was taken on file by the Special Court on 15-4-1996 in Special Case No. 3 of 1996 for the above offences. On receipt of

summons, the petitioner has approached both the trial Court and this Court and also the State Appellate Tribunal by filing various applications

seeking for cancellation of the proceedings only on the ground that the investigation conducted by the Inspector of Police, who is subordinate

officer, against the Deputy Superintendent of Police, is not authorised. The present petition is one of those applications seeking for quashing of the

proceedings in C.C.No. 3 of 1996 on the file of the Special Judge, Pudukottai.

The grounds urged in this petition are as follows :

(1) Admittedly, the petitioner was a Deputy Superintendent of Police, a Group B Officer. u/s 17 of the Act, only Deputy Superintendent of Police

or his equivalent rank shall investigate any offence punishable under the Act, provided Inspector of Police can investigate only when he is

authorised by the State Government or by the order from a Magistrate of First Class. In the present case, the investigation has been done by the

Inspector of Police without authorisation from the State Government or permission from the Magistrate of First Class. Therefore, the entire

investigation is illegal.

(2) G.O.Ms. No. D.1 dated 28-1-1992 would provide that trap cases against Government servants falling under Groups ''A'' and ''B'' shall be

registered only with the prior permission from the Vigilance Commissioner and the same is not necessary only when there is an order from a

Magistrate for investigation u/s 156(3), Cr. P.C. The trap cases shall be organised on the orders of the Director of Vigilance and Anti-Corruption.

Since this has not been followed in the present case, the proceedings which arise out of the said unauthorised investigation are not valid in law.

In reply to the above grounds, the following contentions have been urged :

(1) As per G.O.Ms. No. 269 of P & A.R. (Per-N) dated 4-6-1990, all the Inspectors of Police of the Directorate of Vigilance and Anti-

Corruption have been authorised to exercise the powers of investigation and arrest mentioned in that proviso but excluding the power to arrest

without a warrant, any officer belonging to Group ''A'' or ''B''. Since the petitioner is a Group ''B'' Officer, Mr. Jayapaul, the Inspector of Police,

Vigilance Anti-Corruption conducted investigation by laying a trap. He was arrested by the Deputy Superintendent of Police, Trichy, who was

present in the trap and later released on bail. As such, there is no illegality either in the laying of the trap or in the arrest of the petitioner. The G.O.

(D) No. 1 P & A.R. (Per. N) Department dated 28-1-1992 would not apply to the present case as the said G.O. would relate to the regular

cases other than trap cases. Therefore, the investigation and filing of the charge-sheet on the basis of the materials collected are perfectly justified.

In elaboration of the respective contentions mentioned above, Mr. C.S. Krishnamurthy, appearing for the petitioner and Mr. V.R.

Balasubramaniam, the learned Government Advocate appearing for the respondent would argue at length by citing several authorities.

Before dealing with the said question, it may be better, at the outset, to notice some of the important events which led to the filing of the present

petition for quashing.

(a) The petitioner was trapped on 27-5-1995. Ultimately, after obtaining sanction, charge-sheet was filed and the same was taken on file on 15-4-

1996. After appearance before the trial Court, the petitioner filed an application in Crl. O.P. No. 7517 of 1995 before this Court raising the very

same objection. However, the same was dismissed as withdrawn on 7-11-1995.

(b) Again, he filed another application before this Court in Crl. O.P. No. 1721 of 1996. The said application also was ultimately dismissed as

withdrawn on 27-3-1996. The trial Court questioned the accused after framing charges on 18-7-1996. Thereafter, he filed another application in

Crl. O.P. No. 7889 of 1996 before this Court to quash the charges on the very same ground. The counsel for both parties were heard. Ultimately,

the said petition was dismissed on 16-12-1996 by this Court allowing the petitioner to raise this point in the main case before the trial Court.

(c) In the same year, he filed an application in O.A. No. 5725 of 1996 before the Tamil Nadu Administrative Tribunal, Chennai, questioning the

sanction for prosecution granted in this case raising the very same ground, namely unauthorised investigation. This was dismissed by the Tribunal on

11-10-1996. Challenging this order, the petitioner filed an application before the Supreme Court in SLP No. 3137 of 1997 and the same was

dismissed on 19-2-1997 confirming the order of the Tamil Nadu Administrative Tribunal.

(d) Again, he filed an application before the Special Court itself in C.M.P. No. 182 of 1998 requesting the Court to quash the charges already

framed on the ground that the investigation was unauthorised. This petition was dismissed by the trial Court on 17-4-1998. Challenging the said

order, the petitioner filed an application to quash the said order as well as the proceedings in Crl. O.P. No. 5910 of 1998 before this Court raising

the same ground. Ultimately, this was also dismissed by this Court on 15-6-1998 as withdrawn.

(e) Without facing the proceedings before the trial Court, the petitioner again filed a similar application before this Court seeking for quashing of the

proceedings contending that the investigation was unauthorised and the order of the Special Court rejecting his preliminary objection requesting for

quashing of the charges is not valid on 24-8-1998 and obtained stay of the proceedings. This petition also was dismissed by this Court on 20-10-

2000 as there was no representation on behalf of the petitioner. But it was restored on the application filed by the petitioner by the order dated 22-

12-2000. After the same was restored, the matter was taken up for final disposal.

The above chronological events would indicate that the point which has been taken in the present petition has earlier been taken in the previous

applications and the same was rejected by the trial Court and this Court. However, this Court in the earlier application allowed the petitioner to

raise this point before the trial Court when the main case is taken up.

Instead of raising the said point during the course of trial, the petitioner filed application even before commencement of the trial before the trial

Court requesting to quash the charges already framed. The same was correctly dismissed by the trial Court mainly on the ground that the

application is not maintainable, inasmuch as the petitioner cannot be discharged orice the charge has been framed.

It is pertinent to point out that the very same point had been taken beefore the Tamil Nadu Administrative Tribunal, while challenging the

sanction for prosecution. While dismissing the said petition, it is the specific observation by Hon''ble Justice Pratap Singh, as the Chairman of the

Tribunal that ""so, prima facie I am not able to persuade myself to accept the submission that without any authority the case has been investigated

and that without taking into account that fact, this sanction of prosecution was granted.

It is also observed in the said order, while referring the G.O.D. No. 1 dated 28-1-1991 wherein it has been stated that trap cases against

Government servants failing under Groups A and B shall be organised on the orders of the Director of Vigilance and Anti-corruption, that the

prosecution cannot be said to be vitiated as the administrative instruction given in the said G.O. would not override the provision of law, and

provisions of the Prevention of Corruption Act or the provisions contained in the Code of Criminal Procedure do not enjoin such a procedure.

On the basis of the said observation, it was found that the sanction for prosecution cannot be said to be illegal, as it cannot be said that the

investigation was unauthorised. This order dated 11-10-1996 in O.A. No. 5725 of 1996 passed by Hon''ble Justice Pratap Singh (as he then was)

was confirmed by the Supreme Court in SLP No. 3137 of 1997 by the order dated 19-2-1997.

In the light of the above fact situation, this Court has again been asked to consider the very same question.

Let us now deal with the question posed in this case.

According to the petitioner, as per Section 17 of the Act, the Inspector of Police, Vigilance and Anti-Corruption cannot investigate the

offences under the Act unless he is authorised by the general or special order of the State Government or by the order of the Magistrate and in this

case, there is no such order.

According to the learned Government Advocate appearing for the respondent, as per G.O.Ms. No. 269 dated 4-6-1996, all the Inspectors of

Police are empowered to exercise the powers of investigation and arrest any officer belonging to Groups A and B.

Section 17 of the Act would provide thus :

Persons authorised to investigate. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Police Officer

below the rank,-

(a) and (b)....

(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 therefore 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 Metroplitan Magistrate or a Magistrate of the first class, as the case

may be, or make arrest therefore without a warrant.

In the present case, it is the case of the prosecution that the investigation which has been conducted by the Inspector of Police has been

authorised by the general order, namely G.O.Ms. No. 269 dated 4-6-1990. But, the perusal of the G.O. would indicate that though the general

authorisation has been given to all the Inspectors of Police, Directorate of Vigilance and Anti-Corruption, but would exclude power to arrest any

officer belonging to Groups ''A'' and ''B''.

Admittedly, the petitioner was working as a Deputy Superintendent of Police, while the offence was committed and he belongs to Group ''B.''

Therefore, though the investigation by the Inspector of Police was authorised, the power to arrest was excluded.

According to the counsel for the petitioner, since he was arrested by the Inspector of Police, the entire investigation becomes illegal, as arrest

would include the investigation.

On the other hand, it is the contention of the learned Government Advocate 2001 that though the investigation was conducted by the Inspector

of Police by organising and laying the trap, the arrest was effected only by the Deputy Superintendent of Police, Trichy. This is the specific stand

taken by the respondent through the counter filed before this Court.

It is pointed out by the counsel for the petitioner that before the trial Court this stand was not taken by the respondent. It is also vehemently

contended by the counsel for the petitioner that the G.O. (D) No. 1 dated 28-1-1992 would only apply to the present facts of the case and as

such, the violation of Cls. (iv) and (vi) of the said G.O. would invalidate the investigation.

The reading of Cl, (iv) would indicate that the prior permission by Vigilance Commissioner is necessary only with regard to the regular cases

other than the trap cases. Therefore, Clause (iv) would not apply. However, it is stated in Clause (vi) that trap cases against the Government

servants falling under Groups A and B shall be organised on the orders of the Director of Vigilance and Anti-Corruption.

The question which arises for consideration is whether this is a mandatory violation, which would affect the validity of the prosecution.

As indicated above, the very same ground was urged before Hon''ble Pratap Singh, J., the Chairman of the Tamil Nadu Administrative

Tribunal, while challenging the sanction for prosecution. Justice Pratap Singh would hold, while dealing with the said question, that it is only an

administrative instruction which will not override the provisions of law as contemplated in the Prevention of Corruption Act or Cr. P.C. The

following is the relevant, extract:

The learned Counsel for the appellant would point out that in this case, from the copy of the FIR, it is seen that FIR was received at 8.45 hours

and registered in Pudukkottai V and AC Police Station Cr. No. 2/95 u/s 7 of the P.C. Act and thus the complaint was immediately registered and

taken up for investigation and no orders were obtained, as enjoined under the aforesaid Rule (iv) and hence the prosecution is vitiated. I am clear

that this administrative instruction cannot override the provision of law. The provisions of Prevention of Corruption Act or the provisions contained

in Code of Criminal Procedure do not enjoin such a procedure. On the other hand, investigation is expected to be proceeded with expeditiously.

Whileso, an executive order by virtue of a G.O. cannot curtail the power to deal with the investigation so as to make, obtaining the order of a

higher authority, a pre-requisite for investigating the case. Hence, I am unable to accept either this submission made by the learned Counsel for the

application, I do not find any ground to fault the impugned order.

The above order has been confirmed, as noted above, by the Supreme Court. Though this point was not considered in the quashing

application for quashing the prosecution, the said observation given by Hon''ble Pratap Singh, J., while dealing with the question of sanction for

prosecution would apply to the validity of the prosecution also, since the ground that there was unauthorised investigation is common in both these

forums.

In this context, it is quite relevant to point out an important observation made by the Supreme Court in the decision reported in R.S. Raghunath

Vs. State of Karnataka and another, :

The investigation conducted in violation thereof bears the stamp of illegality. But, illegality committed in the course of an investigation does not

affect the competence and the jurisdiction of the Court for trial. Where the cognizance of the case has in fact been taken and the case is proceeded

to termination, the invalidity of the proceeding investigation does not vitiate the result unless miscarriage of justice has been caused thereby.

Under those circumstances, my conclusion is this :

The instruction given in G.O. (D) No. 1 dated 28-1-1992 is only an administrative instruction. But, as per proviso to Section 17 of the Act, all the

Inspectors of Police, Vigilance and Anti-Corruption have been authorised to make investigation of the offences under the Act and take action

against any officer falling under the Groups A and B. So, under the said G.O., the Inspector of Police, who filed the charge-sheet, has been validly

authorised to conduct investigation. Though through this G.O., the power of arrest has been excluded, the powers of investigation such as

organising, laying trap, examination of witnesses, obtaining sanction and filing of charge-sheet by the Inspector of Police, have not been curtailed.

In the instant case, it is the case of the prosecution that the arrest has been effected by the Deputy Superintendent of Police. Even assuming that the

arrest has been effected by the Inspector of Police, that would not affect the other investigation which was validly conducted by the Inspector of

Police as per the general authorisation. Hence, I find no illegality as such in the investigation. Even if there is an illegality in regard to the arrest, that

would not affect the cognizance validly taken in this case.

In view of the above conclusion, the petition which is devoid of merit, is liable to be dismissed and accordingly, the same is dismissed.

Consequently, Cri. M.P. No. 7148 of 1998 is closed.

Before parting with this case, I shall point out that the conduct of the petitioner by dragging on the proceedings by filing several applications

before serveral forums is not proper. One day or the other, he shall face the proceedings and avail of the opportunity given to him as an accused to

contest the case of prosecution and to face the result of the same. this Court hopes that at least in the future, the petitioner would not put any more

hurdles to stall the proceedings. The trial Court is directed to go on with the trial and dispose of the, matter as expeditiously as possible.