S. Karunakaran v. The State rep. by the Inspector of Police, Vigilance and Anti Corruption Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 29.07.2009CORAM :THE HONOURABLE MR.JUSTICE.M.JEYAPAULCrl.R.C.No.1099 of 2006 S. Karunakaran ... Petitioner/Accusedvs.The State rep. by the Inspector of Police,Vigilance and Anti CorruptionCoimbatore. ... Respondent/Complainant(Cr.No.23/2003/AC/CB)Criminal Revision Case filed under section 397 & 401 of Cr.P.C.against the order made in Spl. CMP No.525 of 05 in Spl. CC No.4 of05 dated 6.4.06 on the file of the Spl. Judge cum Chief JudicialMagistrate, Coimbatore, Coimbatore District. For petitioner: M/s.R.SaseetharanFor respondent: Mr.N.Kumanan, Govt. Advocate.ORDERThe petitioner who was serving as the Secretary of the AvinashiCo-operative Housing Society Limited, Avinashi was charged withoffences punishable under section 7 and 13(2) r/w. 13(1)(d) of thePrevention of Corruption Act, 1988.2. Specifically referring to the embargo found under section 17(c) of the Prevention of Corruption Act, 1988, the petitioner whostood charged as stated above moved a petition invoking the provisionunder section 239 of Code of Criminal Procedure praying for dischargefrom the criminal prosecution launched by the respondent in SpecialCC No.4 of 2005. The trial court having referred to the sanctionaccorded for prosecution as against the petitioner herein withoutactually adverting to the ambit of section 17(c) of the Preventionof Corruption Act, 1988 which was the main crux of the issuedismissed the petition filed by the petitioner seeking discharge.3. As already pointed out by this court, the petitioner wasserving as the Secretary of the Avinashi Co-operative HousingSociety Limited, Avinashi. No doubt he comes under the definition of https://hcservices.ecourts.gov.in/hcservices/ public servant as per section 2(c)(ix) of the Prevention ofCorruption Act, 1988 in as much as he was serving as a Secretary ofthe Avinashi Co-operative Housing Society Limited, Avinashi.4. The learned counsel appearing for the petitioner wouldvehemently submit that the petitioner does not fall under thecategory of the officer belonging to Group A or Group B of theservice of the Government of Tamilnadu. Therefore the G.O.'sreferred to by the respondent police, as though the Inspector ofPolice has been conferred with the power to investigate and arrestwithout warrant for the offence punishable under the Prevention ofCorruption Act, 1988 would not apply to the petitioner. He wouldalso submit that the Inspector of police who has investigated thecase in this matter has not been empowered either to investigate orto arrest without warrant. The petitioner has been serving as theSecretary of the Co-operative Society and was not in the services ofthe Government. Therefore, he would submit that the wholeinvestigation embarked upon by the respondent police is tainted withillegality and as a result of which discharge as prayed for iswarranted. 5. The learned Government Advocate (Criminal side) would submitreferring to three Government Orders passed by the Government ofTamil Nadu that the Inspector of Police has been conferred with thepower to investigate and arrest without warrant any of the publicservants as contemplated under the definition part of the Preventionof Corruption Act, 1988. It is his submission that the petitionerhas set up a very technical stand on the premises, that no power wasconferred on the Inspector of Police either to investigate the caseor to arrest an accused public servant under the Prevention ofCorruption Act, 1988. Therefore, he would submit that the plea fordischarge is not at all tenable.6. There is no dispute to the fact that the petitioner is apublic servant as defined under section 2(c)(ix) of the Prevention ofCorruption Act, 1988 as he was serving as the Secretary of theAvinashi Co-operative Housing Society Limited, Avinashi. As rightlypointed out by the learned counsel appearing for the petitioner, thetrial court has gone out of track and has passed an order that thepetitioner is not entitled to discharge as prayed for withoutdetermining the point in issue raised by the petitioner herein. Thepetitioner had not challenged the sanction accorded in this case forprosecution against the petitioner. The only challenge made by thepetitioner is that as per section 17(c) of the Prevention ofCorruption Act, 1988 only the District Superintendent of Police or apolice officer of equivalent rank alone is empowered to investigatethe case.7. The first proviso found under section 17(c) of thePrevention of Corruption Act, 1988 would read that, if a police https://hcservices.ecourts.gov.in/hcservices/ officer not below the rank of Inspector of Police is authorised bythe State Government to investigate the case arisen under thePrevention of Corruption Act, 1988, he may also investigate any suchoffence and can also effect arrest without any warrant from thecompetent Judicial Magistrate concerned.8. The question is whether the Government of Tamil Nadu hasconferred any power on the Inspector of Police to investigate thecases arisen under the Prevention of Corruption Act, 1988. Let mestraight away refer to G.O.Ms.No.269/Personal and AdministrativeReforms (Personal N Department)/ dated 04.06.1990 which empowers theInspector of Police of the Directorate of Vigilance and Anti-Corruption, Madras under the aforesaid proviso to section 17 of thesaid Act to exercise the powers of investigation and arrest withoutwarrant. But as far as the officers belonging to Groups A and Binvolved in any of the offence under the Prevention of CorruptionAct, 1988 are concerned, the Inspectors of Police of the Directorateof Vigilance and Anti-Corruption, Madras so empowered have beendeprived of the power of arrest without a warrant.9. Subsequently, the Government of Tamil Nadu passedG.O.Ms.No.15, Personal and Administrative Reforms (N) Department,dated 19.02.2003 whereunder taking into consideration the jump in thepay scale of officers belonging to Groups A and B, the ceiling of thePay structure found in the earlier G.O.Ms.No.269 dated 04.06.1990 wasenhanced to Rs.11,100/-.10. The cumulative reading of these two Government Orders inG.O.Ms. No.269 dated 04.06.1990 and G.O.Ms.No.15 dated 19.02.2003would read that the inspectors of police of the Directorate ofVigilance and Anti-Corruption, Madras has been authorised by theGovernment of Tamil Nadu invoking the powers contemplated under theproviso to section 17 of the Prevention of Corruption Act, 1988 toexercise the powers of investigation and arrest in connection withany case for that matter arisen under the Prevention of CorruptionAct, 1988 but only in a case where the arrest of officers belongingto Groups A and B, formerly in the pay scale of Rs.3,500/- and now inthe pay scale of Rs.11,100/-, shall not be arrested without warrantof arrest issued by the competent Judicial Magistrate. In otherwords, it is only the District Superintendent of Police who has beenempowered under section 17(c) of the said Act can effect arrestwithout warrant those officers belonging to Group A and B.11. As general power of investigation under arrest with thespecific exclusion of the power of arrest of certain category ofemployee of Government without warrant has been contemplated in thosetwo G.O's., the petitioner being a public servant cannot contendthat the aforesaid G.O's would not apply to the public servants whoare not Government servants. It is held emphatically that those twoG.O's. do apply to the public servants who are not Government https://hcservices.ecourts.gov.in/hcservices/ servants also but the Government servants working in Group A and B inthe maximum pay scale of above Rs.11,100/- shall claim exemption fromthe purview of the power of arrest by the inspector of policeattached to the Directorate of Vigilance and Anti-Corruption asreferred in those two G.O's.12. The court finds that the respondent police in this case hasgot ample power as per the authorisation made by the Government ofTamil Nadu in G.O.Ms. No.269 dated 04.06.1990 and G.O.Ms.No.15 dated19.02.2003 not only to investigate the case under the Prevention ofCorruption Act, 1988 as against the accused petitioner but also toarrest him without warrant.13. In view of the above facts and circumstances, the plea fordischarge on the aforesaid premises is found not sustainable andtherefore the said plea stands dismissed. Though the trial court hasnot adverted to the actual point in issue arisen in this matter, theultimate decision to reject the plea for discharge stands confirmedand the revision is dismissed. The observations made herein for thepurpose of disposal of the plea for discharge shall not have bearingon the merit of the case. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar pri To1. The Special Judge cum Chief Judicial Magistrate, Coimbatore, Coimbatore District.2.The Inspector of Police, Vigilance and Anti Corruption Coimbatore. 3. The Public Prosecutor High Court, Chennai.Crl.R.C.No.1099 of 2006MSM(CO)EM/10.8.09