Surinder Mohan Luthra vs State of Punjab

G.S. Chahal, J.

Surinder Mohan Luthrapetitioner, by means of this petition under Section 482 CrPC seeks quashing of FIR 75 dated May 6, 1993 registered under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 at PS Civil Lines, Amritsar (Annexure P1) and the subsequent proceedings.

The impugned FIR was got registered with Sh. Pinder Singh, Inspector Vigilance Bureau, Amritsar on the basis of a statement made by Sh. Baldev Singhcomplainant before him. The facts as stated by the complainant in his statement before the Inspector may be briefly narrated

Baldev Singh on his visit to Court Complex lost his driving licence No. 98759 which had been issued by the DTO, Amritsar. He applied for a duplicate licence and deposited the fee of Rs. 15/ in the office of the DTO. He filed an affidavit and also filled in the necessary form and all the papers were submitted to the petitioner on May 4, 1993. Baldev Singh contacted the petitioner on May 6, 1993 and inquired if the duplicate driving licence was ready. The petitioner then made a demand for Rs. 200/ as bribe for obtaining a duplicate driving licence. The complainant made a request that he was a poor man and could not pay the amount and Jasbir Singh, who was accompanying him, also asked for showing concession. Surinder Mohan then agreed to accept Rs. 100/ for preparing the duplicate driving licence. The complainant then told him that he did not have the ready money at that time and the petitioner informed him that he will be in his seat till evening and the complainant could make the payment. Since he did not want to pay the bribe, he came to the office of the Vigilance Inspector in the company of Jasbir Singh and made his statement to him. The Inspector had then arranged the raid.

The FIR is being challenged on the ground that Inspector Vigilance was not authorised under the Act to carry out the raid in view of the provisions of Section 17(c) of the Act.

Section 17 of the Act provides as follows :

"17. Persons authorised to investigate

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank

a) in the case of 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, 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 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 therefore 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."

This Section corresponds to Section 5(A)(1) of the old Prevention of Corruption Act, 1947 which has been repealed by means of Section 30 of the Act. That Section reads as follows :

"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 town 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 (2) 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."

Under the old Act, Notification No. 64903H68/7967 dated July 9, 1968 had been issued authorising the Inspectors of Police serving in the Special Inquiry Agency of Vigilance Department of the Punjab Government to investigate the offence under the Act in the whole of the State of Punjab. This Notification was superseded by another Notification No. 78233H68/7966 dated August 12, 1968 and it provides as follows :

"No. 78233H68/7966 : In supersession of Punjab Government Home Department Notification No. 64903H68, dated the 9th July, 1968 and in exercise of the powers conferred by the first proviso to subsection (1) of the Section 5A of the Prevention of Corruption Act, 1947 (2 of 1947), the Governor of Punjab is pleased to authorise for the purposes of the said proviso Inspectors of Police, for the time being serving in the Special Inquiry Agency of Vigilance Department of the Punjab Government or who may be posted in future to serve in the said Agency."

The argument of the learned counsel for the petitioner is that unless a fresh notification is issued under the Act, the Inspector Vigilance was not competent to investigate and the notification of August 12, 1968 did not survive after the repeal of the old Act. The DAG, however, has urged that in view of Section 24 of the General Clauses Act, the notification survived till a fresh notification was issued.

Section 24 of the General Clauses Act reads as follows :

"Where any (Central Act) or regulation is, after the commencement of this Act, repealed and reenacted with or without modification, then unless it is otherwise expressly provided, any (appointment notification) order, scheme, rule, form or byelaw (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 reenacted, unless and until is superseded by any (appointment, notification) order, scheme, rule, form or byelaw (made or) issued under the provisions so reenacted (and when any (Central Act) or Regulation, which by a notification under Sections 5 or 5A of the Scheduled District Acts, 1874 or any like law has been extended to any local area, has by a subsequent notification, been withdrawn from and reextended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and reenacted in such area or part within the meaning of this section.)"

A reading of the two Acts clearly shows that the same had dealt with the same subject matter and except that new Act has made certain additional provisions, it is substantially the same as the old one and it can safely be said that the Act has been reframed with modification. Whenever an Act is repealed and reenacted, the repealing Act would require complicated saving clauses to preserve the various provisions of the Act which if allowed to be obliterated with the repealed Act, would not only destroy the continuity of the objects and purposes of the Act but work great hardship and injustice. This is avoided by incorporating these complicated clauses in a general saving statute like the General Clauses Act. In respect to the purpose of such a saving statute, the learned authors of Sutherland''s Statutory Construction Vol. 2 (para 4988), state as follows :

"A Legislature may enact a general saving statute which will save rights and remedies except where a subsequent repealing Act indicates that it was not the legislative intention that the rights and remedies should be saved. Although a Legislature cannot bind future Legislatures and each subsequent Legislature can make its laws prevail over any preceding Legislature, yet as all Legislatures are presumed to act with a knowledge of existing law, it is presumed that they act with reference to any general saving statute.

Thus, when a repeal is enacted unaccompanied by a provision saving existing rights which would be affected by its action, it is presumed that the Legislature has acted with the intent to afford the protection of the general saving statute. In such cases the repealing Act is to be considered as limited in its effect and operation in the same manner and to the same extent as if it contained the customary saving clause."

I am, thus, of the view that the notification being not inconsistent with the provisions reenacted the same continues to hold the ground till further notification is issued.

In Harish Chandra v. The State of Madhya Pradesh, AIR 1965 SC 932, to which a reference has been made by the learned counsel, their Lordships did not decide the matter of application of Section 24 of the General Clauses Act. In that case, it had been conceded that the language of the Section did not cover and repeal of Madhya Bharat Scrap JUDGMENT by the introduction into Madhya Bharat Territory of the Indian Scrap

In support of my finding that Section 24 of the General Clauses Act saves the notification, I find support from the observations of a Division Bench authority in State of Madhya Pradesh v. A.K. Jain and others, AIR 1958 MP 162.

Although in Section 30 of the Act, the saving clause only referred to the acts done, but it did not refer to the field covered by Section 24 of the General Clauses Act which provides for the general savings.

I thus concluded that the raid conducted by the Inspector of Police, Vigilance Bureau and the investigation carried out by him were legal. No case is made out for quashing of the FIR or the consequent proceedings. This petition is hereby dismissed.