The main legal point established is that an investigation carried out by an officer not authorized under Section 17 of the PC Act is illegal and can lead to a serious miscarriage of justice.

JUDGMENT :

1. This appeal challenges the judgment and order of conviction in respect of case No. 16 of 1994 dated 15/04/1998 arising out of C.R. No. 251 of 1994 registered with Barshi Police Station passed by the Special Judge Solapur for the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter referred as “PC Act” for short). The appellant by the impugned judgment and order has been sentenced to suffer rigorous imprisonment for 1½ years and to pay the fine in the sum of Rs.1000/-. The appellant was further convicted for the offences punishable under Section 7 of the PC Act and sentenced to suffer rigorous imprisonment for 9 months and to pay the fine in the sum of Rs.500/-.

2. The appellant at the relevant time was working as a Revenue Circle Officer, Division Pangari, Taluka Barshi, District Solapur. On 24/05/1994, an application was submitted by the complainant - PW-4 for effecting a mutation entry to the appellant. It is the case of the prosecution that the appellant demanded a bribe amount of Rs.500/- for effecting such mutation entry. Accordingly, a trap was laid. The complainant visited the residence of the appellant on 29/05/1994 and paid the bribe amount which had been smeared with Anthracene powder. The investigation was carried out by PW-5 who at the relevant time was working as a Police Inspector (hereafter referred to as “P.I.” for short) of the Anti-Corruption Bureau (hereafter referred to as “ACB” for short).

3. Learned counsel for the appellant Ms. Aditi Rajput submitted that the appeal must succeed only on the ground that the investigation was carried out by PW-5, an officer not empowered to carry out such investigation which does not accord with the mandatory condition enumerated in Section 17 of the PC Act. In support of her submissions, learned counsel for the appellant relied on the decision of the Supreme Court in State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri : (2006) 7 Supreme Court Cases 172. Reliance is also placed on the decision in Vishnu Kondaji Jadhav Vs. State of Maharashtra : 1995 Supp (4) Supreme Court Cases 408.

4. Learned APP in response invited my attention to the letter addressed from the office of the Deputy Superintendent of Police, ACB, Solapur which is at Exhibit 17 to urge that the conditions requisite for carrying out the investigation in terms of Section 17 are sufficiently complied with. In support of her submissions, learned APP relied upon the decision of this Court in Manikrao Abaji Thonge Vs. The State of Maharashtra : 1993 CRI.L.J. 3796 to submit that this issue was never raised before the trial Court at an early stage and hence it is not open for the appellant to agitate this issue for the first time in this appeal.

5. I have heard learned counsel for the parties. I have perused the paperbook, notes of evidence and the materials on record. I have gone through the judgment and order of the trial Court.

6. In the present case, the investigation was carried out by the P.I. - PW-5. The question is whether the PW-5 is authorised to investigate the offence in view of the mandate of Section 17 of the PC Act. In the examination in chief of PW-5, it is stated that he was working as P.I., ACB from September 1989 to August 1996. The complaint recorded by him is at Exhibit 48. There is no dispute that the investigation was carried out by PW-5. On 28/05/1994, a request letter was sent by PW-5 to S.P. (Rural), Solapur, to depute one lady constable to the PW-5 office on the same day at 5.30 p.m. This letter though from the office of Superintendent of Police, was addressed by the PW-5 and not by the Superintendent of Police. In cross-examination, PW-5 deposed that at the time of joining ACB, his rank was in the cadre of Police Sub-Inspector (PSI). He deposed that the rank had not changed. In cross-examination, PW-5 specifically stated that during the relevant period, Deputy Superintendent of Police,