1983 Supreme(Bom) 79

 (SHORT NOTE)
BOMBAY HIGH COURT
(D.B.)
S.P. Kurdukar and N.K. Parekh, JJ.
Abdul Rehman Antulay - Petitioner
versus
Ramdas Shrinivas Nayak and another - Respondents
Criminal Revision No. 510 of 1982
Decided on 7-3-1983
For the Petitioner: Shri Kart J. Khandatwala, Advocate.
For the Respondents: Shri P. R. Vakil, Advocate and M. R. Kotwal, Public Prosecutor.

Headnote:(i) Prevention of Corruption Act, 1947 - Section 5, Indian Penal Code, Sections 161,165 and 165-A and Criminal Law (Amendment) Act, 1952, Sections 5A, 7A and 8-Special Judge can take cognizance of such offences under Indian Penal Code and Criminal Law Amendment Act on a private complaint also-Provisions of Code of Criminal Procedure not excluded unless inconsistent with Criminal Law (Amendment) Act-'In regard to private complaints court acts as safeguard.

       (a) In judgment of Kurdukar, J.

       Held that it would be incorrect to hold that the Criminal Law (Amendment) Act is a separate Code by itself and it excludes the operation of the provisions of the Code of Criminal Procedure. The very preamble of the Criminal Law (Amendment) Act, would show that this Act is the Amendment Act to the Code of Criminal Procedure and its provisions are intended to provide for a more speedy trial of certain offences. The Criminal Law (Amendment) Act is not intended to be a complete code relating to the procedure. The provisions of the Criminal Procedure Code are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act, 1952.

       Held further that, as observed by the Supreme Court in State of Tamil Nadu v. Krishnaswami, A.I.R. 1979 S.C. 1255, Special Judge is empowered to take cognizance without the accused being committed and in trying the accused persons he is required to follow the procedure for trial of warrant cases by a Magistrate. Under section 8(3) except as regards the provisions in sub sections (1) and (2) the provisions of Code of Criminal Procedure are made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act. This taken along with the fact that the Criminal Law (Amendment) Act is an Amending Act so far as the Criminal Procedure Code and Indian Penal Code are concerned the provisions of Criminal Procedure Code should be considered to be in force unless there are certain provisions in the Criminal Law (Amendment) Act which are inconsistent with the provisions of the Criminal Procedure Code.

       Held further that the provisions of the Code of Criminal Procedure would apply in so far as they are not inconsistent with the provisions of the Criminal Law (Amendment) Act, 1952. Once we come to the conclusion that the provisions of Criminal Procedure Code are applicable then it must necessarily follow that a private complaint in respect of the cognizable offence is not barred. If a private complaint is not barred under the Code of Criminal Procedure in respect of a cognizable offence which would include offences with which we are concerned in the present case then it is for the accused to show as to how a citizen is prohibited or forbidden from moving the court by filing the complaint.

       Held further that it is no doubt true that under section 5A an investigating machinery or even we may accept the contention of the petitioner's counsel that the machinery so created under section 5A is specilised one and such an investigation machinery is manned by experienced, intelligent, senior and persons of integrity yet there is nothing in that provision to show that save and except through this agency a citizen cannot go to the court of law. This may be a safeguard to a public servant but it relates to the manner of investigation only and it would be wrong to infer from this safeguard that a citizen cannot move the Court by filing a private complaint.

       Held further that it is no doubt true that section 5-A of the said Act was inserted in the said Act to protect the public servants against harassment and victimization. The said statutory safeguard must be strictly complied with for they were concerned in public interest and were provided as a guarantee against frivolous and vexatious prosecution. The reason for the rule has been stated by the Supreme Court in Stale of M. P. v. Mubarak Ali, A.I.R. 1959 S.C. 707. To achieve this object, sections 5-A and 6 are introduced by envisaging two safeguards.

       Held further that section 5-A of the said Act only prohibits offences under sections 161, 165, 165A of the I.P.C. and section 5 of the said Act, being investigated by an officer below the rank of a Deputy Supdt. of Police without the order of a Magistrate of the First Class. Section 5-A, therefore, places a restriction on the powers of investigation by police officers below a certain rank. Thus section 5-A of the said Act does not affect and is not intended to override any provisions of the Criminal Procedure Code about giving of first information report relating to the commission of cognizable offences.

       Held further that section 5-A of the said Act should be related to the provision in section 4(2) of the Criminal Procedure Code which limits the application of the provisions of that Code to be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The only change which section 5-A of the said Act makes is with regard to officers competent to investigate and arrest without warrant, in all other respect the Code of Criminal Procedure applies and, therefore, there is no doubt that all offences mentioned in Section 5-A of the said Act are cognizable offences. The words "notwithstanding anything contained in the Code of Criminal Procedure" found at the beginning of section 5-A (1) merely carve out a limited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate into offences mentioned in the section and to arrest without a warrant. It does not mean that the whole of the Code of Criminal Procedure, including Schedule 11 thereof, is made inapplicable. (See Union of India v. I. C. Lala, 1973 S.C.C. (Cr.) 738.

       Held further that merely because under section 7-A a warrant procedure is amended with reference to the offences under sections 161, 165 and 165-A of the Indian Penal Code as also under section 5 and 5-A of the said Act, a specific investigating agency is provided, a private complaint in respect of these offences is prohibited or forbidden?

       Held further that if the legislature wanted to envisage such a total prohibition then they would have made a specific provision in the said Act.

       Held further that once it is held that the provisions of Criminal Procedure Code apply to the Prevention of Corruption Act, to the extent to which they are consistent with the provisions of Criminal Law (Amendment) Act, then necessary corollary that must follow is that the private complaint can be entertained and the same is not barred or prohibited. Even in section 5-A also, no absolute safeguards as contended by petitioner's counsel could be spelt out because if no objection to this irregularity or illegality is taken at the earliest stage and if the trial proceeded resulting into a judgment on merits then at a later stage the order would not be set aside merely on the ground of breach of provisions of section 5A of the said Act, but the aggrieved parts will have to satisfy the Court that there is failure of justice by reason of breach of the provisions of section 5A of the said Act. (See 11. N. Rishbud v. State of Delhi, A.I.R. 1955 S.C. 196.

       Held further that in regard to such private complaints, we feel that the Court acts as a safeguard. It is the onerous duty of the Court before issuing process to be satisfied as required under law as to whether a prima facie case for issuing a process against the accused is made out. Even in appropriate cases Court can direct investigation and await the report. The complainant who dares to file a vexatious and frivolous complaint based on wanton allegations of corrupt practices against the public servant as well as against ex-public servant is exposed to criminal as well as civil proceedings. If these allegations were found false and vexatious then such a complainant is liable to be prosecuted not only for the offence of perjury but for defamation and malicious prosecution. These safeguards in our opinion operate as sufficient check and counter-check against filing of false or any vexatious private complaint.

       (b) In judgment of Parekh, J.

       Held that even in cases concerning cognizable offences, there are two procedures open: (1) A party can file a complaint before a Magistrate with regard to a cognizable offence and it would be open to a Magistrate to act upon such a complaint or direct such enquiries as he chooses, and or proceed further in the matter, and (2) it would be open to such a party to go and lodge a first information report with the police and thereby put the police machinery into action, and the police would then have to look into the matter: collect evidence, and on completion of investigation, if there is sufficient material, the police may file a report; (also referred to as a charge-sheet) in Court and the matter would then be proceeded with. Hence, even in cases of cognizable offences, a party is not precluded from filing a "private" complaint, nor are the Courts precluded from entertaining such a complaint or proceeding therewith.

       Held further that Section 243 of the new Code corresponds to Section 251A of the Old Criminal Procedure Code. Hence, in cases of a "private complaint", the procedure of Section 243 would be applicable, albeit, the provisions of the said Section would have to be read as modified by Section 7-A of the Prevention of Corruption Act insofar as the offences under Sections 161, 165 and 165A of the Indian Penal Code and Section 5 of the Prevention of Corruption Act are concerned inasmuch as the same procedure would have to be followed in the case of a private complaint as in a case instituted on a police report. If this be the position even the argument that a case of a "private" complaint would entail delay would be untenable, and his contention that a "private" complaint cannot lie must also be negatived.

       Held further that Section 5-A of the Prevention of Corruption Act prohibits officers other than those specified in the said Section 5-A from conducting an investigation, albeit, subject to the other conditions stated in the said Section. This cannot, by any stretch of imagination, mean that a right vested in an individual to move a Court by way of a complaint is curtailed. If the legislature wanted to preclude an individual or a citizen from moving the Court directly by a private complaint, the legislature would have done so in explicit terms as it has done in several enactments, a few of which have been indicated in the judgment delivered by Kurdukar, J. However, insofar as the Prevention of Corruption Act read with the relevant provisions of the Criminal Law (Amendment) Act are concerned, the legislature has not laid down any express provisions precluding an individual and or a citizen from moving a Court directly on a complaint. .

       Held further that the provisions of Section 5A of the Prevention of Corruption Act, 1947 are mandatory in character, there can be no controversy on the point. But this cart only mean that an investigation required to be carried out in a particular manner must be carried out in that manner only, and any deviation there from must stamp it with illegality. This cannot, however, admit of an argument that the investigation by the persons specified in Section 5A of the Prevention of Corruption Act is a must or a condition precedent to the proceedings initiated in a Court of law, much less can it mean that the Section takes away the right of an individual to move a Court of law (in this case, the Special Judge) on a complaint.

       (ii) Criminal Law (Amendment) Act, Section 7A-Notification for trial of cases by Special Judge-Taking cognizance of case and its trial are two different things-Special Judge not authorized by notification to try a case-Taking cognizance by such Special Judge not barred.

       (a) In judgment of Kurdukar, J.

       Held that, in the present case all that the learned Special Judge Shri Bhutta has done is that after going through the contents of the complaint filed by the complainant, he took cognizance of the alleged offences and recorded the statement of the complainant and ordered issue of process against the petitioner including the bailable warrants and further issued summonses to the witnesses. Except this the learned Special Judge has not done anything in the matter which could amount to a trial as contemplated under the Criminal Procedure Code. On the adjourned date namely, October 18, 1982, the petitioner made an application challenging the jurisdiction of the learned Special Judge Bhutta and after hearing both the sides on the question of jurisdiction, the learned Special Judge passed the impugned order. Having regard to the orders and the stages at which they were passed, could it be said that these orders were passed by the Special Judge after the trial commenced. It cannot, in our opinion, be said that the trial in the present case commenced before the Special Judge either on August 9, 1982 or subsequent thereto upto the stage of passing the order on October 18, 1982.

       The learned Special Judge was quite competent to take cognizance of the alleged cognizable offences.

       Held further that the meaning of the words "to take cognizance" (insofar as the Court is concerned) is to take judicial notice of a proceeding brought before the Court.

       Held further that the expression 'taking cognizance of an offence' in Section 190 of the Code deals with a matter of purely technical nature. Cognizance is usually taken upon complaint when process is issued, but no restricted interpretation can be given to that expression in the consideration of character of the action of a Magistrate at any particular stage of the proceeding before him.

       Held further that looking to the facts of the present case, what is evident is that on a complaint being filed all that the Special Judge Shri Bhutta had done was to examine the complainant and direct process to be issued. In other words, he took cognizance of the matter and had not commenced the trial.

       Held further that merely because Shri Bhutta did not have powers to try the matter, he could not take cognizance of it must clearly be negatived.

       (iii) Code of Criminal Procedure, Section 200-Examination of complainant -No specific code for examination provided-Court may allow counsel for complainant to carry out examination.

       (b) In the judgment of Parekh, J.

       Held that Section 200 of the Criminal Procedure Code does not prescribe the mode in which an examination is to be carried out. There appears nothing wrong in the learned special Judge allowing a counsel to appear for the complainant and assist the Court in carrying out the examination for such a procedure can only mean saving the time of the Court inasmuch as only relevant and admissible matter would be placed before the Court, and all extraneous matter and rambling evidence would be avoided. In this context, a look at section 313 of the Criminal Procedure Code would also be pertinent. Section 313 empowers the Court to put questions to the accused for the purposes of enabling the accused to explain circumstances appearing in the evidence against him and it does not speak of an examination. The difference in terminology in Sections 200 and 313 is, therefore, significant. Merely because the terminology used in the rozanama of the Court reflects the words examination-in-chief and or merely because the form used for recording the examination of the complainant is captioned by the words "examination-in-chief", this cannot make any difference. The deposition still was and is an examination conducted by the learned Judge, albiet with the assistance of a counsel. There is hence no merit in saying that the entire proceedings must stand vitiated.