Criminal Revision Case No. 594 of 2001 · High Court · 2010

Order

1 Since all these revision cases arise out of a common order dated 25th day of January 2001 passed by the learned III Additional District & Sessions Judge – cum – Special Judge for ACB Cases, at Visakhapatnam in C.C.Nos.38 to 84 of 1995, all these revision cases are disposed of by way of a common order. 2 The facts in brief are that the Inspector of Police, ACB, Kakinada registered a case in Crime No.6/RC- RJY/92 of ACB, Rajahmundry Range against the accused in all the above cases for the offences punishable under Sections 13 (1) (d) r/w 13(2) of the Prevention of Corruption Act 1988 (for short ‘the Act’) and under Sections 465, 468, 477 (A), 418 and 120 r/w 120 of IPC alleging that accused 1 and 2 in all the above cases are Sarpanch and Junior Assistant cum Bill Collector of the respective Gram Panchayats, A.3 worked as Extension Officer, A.4 worked as Divisional Panchayat Officer, A.5 worked as District Panchayat Officer, A.6 worked as Office Superintendent and A.7 worked as Junior Assistant in the

office of the District Panchayat Officer, Kakinada. The first accused in all the cases are the sarpanches of different gram panchayats and they are the minor gram panchayats having staff pattern consisting of a Junior Assistant cum Bill Collector and a sweeper. The income of the said panchayats was shown blow Rs.60,000/- per annum. While so the sarpanches who were shown as A.1 in all the cases submitted applications to the District Collector, East Godavari, Kakinada in connivance with the Junior Assistant cum Bill Collectors of the respective Gram Panchayats who were shown as A.2 in all the cases inflated the annual income for two consecutive years 1988-99 and 1989-90 misrepresenting that the gram panchayats were getting annual income of about Rs.60,000/- and above with dishonest intention to get sanction for the additional posts of Executive Officer, Grade II, Full time Junior Assistant cum Bill Collector and a full time Sweeper. The other accused i.e. A.3 to A.7 in all the cases actively assisted the respective sarpanches in misrepresenting to the District Collector, Kakinada and got sanction orders the above said three posts unauthorisedly by deceptive means and also by falsification of official records. On a representation made to the Government, an enquiry was ordered and as a result of the enquiry, a case in CrNo.6/RC-RHY/92 of ACB, Rajahmundry range was registered and investigated into by Sri K. Sarveswara Rao, Inspector of Police, ACB, Kakinada, East Godavari District. During the course of investigation it was disclosed that the sanction for the additional posts was obtained unauthorisedly by the accused persons with a view to fill those posts with their men and to have pecuniary advantage for themselves in filling the posts and to cause wrongful loss to the Government by way of sanction of additional funds for the payment of salaries to the staff of newly created posts. The Inspector of Police, after obtaining necessary sanction orders from the Government of Andhra Pradesh filed the charge sheets against the accused persons in forty seven cases under Sections 13 (1) (d) r/w 13(2) of the Act and under the relevant provisions of the Indian Penal Code. 3 While the said cases are pending some of the accused in all the above cases filed petitions under Section 227 of Cr.P.C. seeking to discharge them for the offences alleged against them contending Inspector of Police conducted investigation under Section 17 of the Act, under which, he has to obtain permission from a Judicial Magistrate of I Class or the State Government to accord permission by a general or special order to investigate into the offence under the provisions of the Act whereas the Inspector of Police did not obtain any such permission and as such he has no power to investigate into the case under the Act. It is further contended though the Government of Andhra Pradesh issued order dated 07.01.1999 conferring the powers of investigation on the Inspector of Police, ACB, Kakinada to investigate into the offence under the Act as mandated under Section 17 of the Act, but there was no general order. The earlier notifications, if any, issued under the Prevention of Corruption Act, 1947 (for short ‘the Old Act’) stood determined with the repeal of the Act. So the investigation done by the Inspector of Police is illegal and not valid in law and the court should not have taken cognizance of the cases. Hence they prayed discharge. 4 The Inspector of Police, who conducted investigation in all the cases filed counter stating that he was authorized the general order by the State Government G.O.Ms.No.170, General Administration (SC.D) Department dated 20.03.1968 and after the new Act 1988 came into force, the Government of Andhra Pradesh General Administration (SC.E) Department Dated

07.01.1999 authorised the Inspectors of Police ACB to investigate all the offences punishable under the Act without the order of a Judicial Magistrate of I Class. Even though there is no specific provision incorporated in the new Act conferring the powers on the Inspectors, the saving clause under section 30 of the New Act can be properly construed when the orders regulating investigation by the Inspectors by virtue of the powers conferred on them by an order of the Government of Andhra Pradesh issued under the Old Act was in force authorizing the investigation by them and there is no inconsistency between the provisions of Section 5 (A) of the Old Act and the provisions of Section 17 of the New Act. 5 The learned III Additional District & Sessions Judge – cum – Special Judge for ACB Cases, at Visakhapatnam by the impugned common order, taking aid of the decisions of the apex court as well as this court and other High Courts, discharged the accused under section 239 of Cr.P.C. for the offences punishable under Sections 13 (1) (d) (i) (ii) (iii) r/w 13(2) of the Prevention of Corruption Act 1988 and directed the Investigating officer to take back the charge sheets from that court enabling him to file the same before the competent Court of Judicial Magistrate of I Class in East Godavari District the offences punishable under the provisions of the Indian Penal Code. As stated supra, aggrieved by the same, the State filed all these revisions. 6 The learned Standing Counsel Mr. Ravi Kiran Rao contended that the notification issued by the Government in G.O.Ms.No.170, General Administration Department, Dated 20.03.1968 authorizes the Inspectors of Police, ACB to investigate all the offences punishable under the Prevention of Corruption Act, 1947 without any order of the Magistrate continue to be in force even under the new Act 1988 unless superceded by another notification issued under the new statute as per section 24 of the General Clauses Act. He further contended that so far as other provisions of the General Clauses Act are concerned, they are to be automatically applied irrespective of their specific incorporation in the new Act. 7 On the other hand the learned counsel for the Respondents in all the cases argued that the order under revision is based on sound reasoning and settled principles of law and hence it needs no interference. 8 I find force in the contention of Mr. Ravi Kiran Rao that the investigating officer in all the cases has power to conduct investigation. The court below by relying on the decision rendered in Harnek Singh Vs. State of Punjab[1] came to the conclusion that the Inspector of Police has no power to conduct investigation in these cases. But the said view has been superceded by the apex Court in State of Punjab Vs. Harnek Singh[2], which was preferred by the State on the decision of the Punjab & Haryana High Court in the very same matter. Therefore, taking the aid of the decision rendered by the apex court in Harnek Singh case (2 supra), this court holds that the Inspector of Police, ACB Kakinada is empowered to conduct investigation in this case. 9 Coming to the factual aspect as was observed by the court below that in this case only proposals were made for sanction of additional posts by allegedly inflating the annual income of the respective gram panchayats and got sanction orders from the District Collector for the said posts and except obtaining the orders of sanction for the said posts, the said posts were not filled up nor any remuneration was paid to them by any of the Sarapnches of the respective gram panchayats. So it is the contention of the State that the accused have committed the acts of falsification of official records and obtained sanction for creation of new posts by deceptive means or inflating the income of the respective Gram Panchayats. For that in my considered view, the provisions of the Indian Penal Code will be attracted and hence the State can proceed against the accused persons for the alleged offences in a competent criminal court having jurisdiction. The Court below has discussed all these aspects in holding that if at all any offence has been committed, the said offence would squarely fall under the provisions of the Indian Penal Code, but not under the provisions of the Prevention of Corruption Act, which finding in my considered view, is perfectly justified and no interference is called for. 10 Further, as the alleged offences, even according to the prosecution, date back to the year 1992 most of the accused persons died and are not in existence, in my considered view, it may not be desirable to proceed against those of the accused who are still alive. It is only an observation and it is for the prosecution either to stop proceeding against the accused persons by filing the complaints before the competent criminal courts or leave them as it is. 11 From the foregoing discussion, I see no merits in revision petitions and accordingly they are ----------------------------------------------- GOPALA KRISHNA TAMADA, J. dismissed. 29-04-2010. Kvsn [1] 1999 Crl.L.J. 635 [2] 2002 (1) ALD (Crl.) 443 (SC)