State vs Bheronlal

P.R. Sharma, J.—This revision application has been preferred by the State Government against the order dated the 16 th of Agust, 1960 passed by the Sessions Judge Bhind, in Special Case No. 27 of 1960.

The opponent Bheronlal Sharma was prosecuted for offences under S. 161 I. P. C. and S. 5 (1) (d) of the Prevention of Corruption Act (No. II of 1947). An objection was raised on behalf of the defence to the effect that the investigation in the case had not been made by an officer of the Special Police force constituted by the State Government in exercise of powers conferred on it by sub-section (1) of S. 2 of the Central Provinces and Berar Special Police Establisment Act (No. XVII of 1947). This objection found favour with the learned Sessions Judge, with the result that he by the impugned order directed the papers to be returned to the District Police Prosecutor with the direction that the offence should be re-investigated by an officer competent 10 investigate in accordance with the provisions of the Notifications referred to by the learned Sessions Judge in his order. On behalf of the State Government the correctness of this order has been challenged before me.

By Sec. 3 of the Madhya Pradesh Extentsion of Laws Order the Central Provinces and Berar Special Police Establishment of 1947 was extended to and enforced throughout the whole of the State Govt. to constitute a special Police Force to be called Madhya Pradesh Establishment for investigation of offences notified under S. 3 of the Act. Under S. 3 of the Act a notification was made by the State Government according to which offences punishable under Ss, 161, 165, and 165-A punishable under the provisions of the Prevention of Corruption Act, 1947 as also offences under Ss. 409, 420 and Chapter XVIII of the Indian Penal Code when committed, attempted to be committed or abetted by the public servants or employees of a local authority or statutory corporation, were to be investigated by the Madhya Pradesh Special Police Establishment.

The question which arises for, consideration before me is whether by this notification (No. 113-89-I(VI)-59) dated the 1st of November, 1959 the State Govt. could and did in fact take away the powers of the ordinary police to investigate into the offences mentioned therein, I do not find anything in the Act No. XVII of 1957 or the notification made thereunder which would justify such a conclusion. According to S. 5 of the Code of Criminal Procedure all offences under the Indian Penal Code are to be investigated according to the provisions contained in the Code of Criminal Procedure; whereas all offences under any other law have to be investigated according to the provision of the Code, but subject to any enactment for time being in force regulating the manner or place of such investigation.

The accused in the present case was charged with the commmission of offences under S. 161 I. P. G. and S. 5 (1) (d) of the Prevention of Corruption Act. It would follow from the provisions of S. 5 of the Code of Criminal Procedure that investigation into these offences had to be carried out according to the provisions of the Code of Criminal Procedure subject to any provision contained in this behalf in the special enactment namely the Prevention of Corruption Act (No. II of 1947). The only provision contained in the latter enactment governing investigations is to be found in Sec. 5-according to ''Which such offences have to be investigated either by a Deputy Superintendent of Police or by any other Police Officer with the order of a Magistrate the First Class.

It is well known that prior to the passing of the Prevention of Corruption Act offences in Chapter IX or Chapter XI were non-cognizable. The reason for this appears to have been that public servants should up not the discharge of their duties be exposed to harrassment on account of investigation against them on the basis of information given by persons affected by their official acts. The effect of Sec. 5-A of the prevention of Corruption Act is to make offendes under Sec. 5 of that Act and u/s 161, 165 & 165-A of the Indian Penal Code cognizable if the investigation is held by an officer of a rank not lower than Deputy Superintendent of police. Is so far as the Police Officer of a lower rank are concerned the position yet remains the came as before; since an order from a magistrate would in their case still be necessary for investigating into such offences. The Government of Central Provinces and Berar by passing Act No. XVII of 1947 created a special force to investigate into such offences. There is nothing in the Act itself or the notifications made thereunder to indicate that the State Government thereby intended to over-ride the provisions of Sec.5-A of the Prevention of Corruption Act. In order to infer an implied repeal of the provisions of an Act by another enactment there must be a distinct statutory provision in the latter which is so obviously repugnant to the provisions of the fromer that the two cannot stand together. If they can both co-exist the Courts are reluctant to held in favour of an implied repeal.

I am afraid the learned Sessions Judge has not borne in mind this well-esablished principle of interpretation of statutes while passing the impugned order. He has virtually held that S. 5 of the Code of Criminal Procedure and Sec. 5-A of the Prevention of Corruption Act have implied been repealed by notifications issued by the State Govt, under Act No. XVII of 1947. The only conditions for cognizance being taken of offences under Ss. 161, 165 & 165-A of the Penal Code and S. 5 of the Prevention of Corruption Act are those mentioned in Sections 5-A and 6 of the Prevention of Corruption Act. That these provisions cannot be affected by anything contained in the C. P. & Berar Act No. XVII of 1947 or the notifications made thereunder by the Madhya Pradesh Government is too obvious to require any argument. The creation of a special police force under Act. No. XVII of 1947 or the formation of an Anti-corruption Board by the State Government are meant only to supplement the provisions of the Prevention of Corruption Act No. II of 1947 and not to over ride or modify the same.

I would, therefore, allow this revision application and setting aside the order passed by the learned Sessions Judge direct that be shall proceed to try the case in accordance with law.