Hon'ble Jayant Banerji,J.
The petitioner in the writ petition is seeking quashing of the Government Order/Notification dated 9.10.1995 (hereinafter referred to as the Notification of 1995) issued by the Vigilance Department of the State Government and published in the official gazette dated 9.10.1995 in exercise of powers under the first proviso to Section 17 of the Prevention of Corruption Act 1988 (hereinafter referred to as the Act of 1988) read with Section 21 of the General Clauses Act 1897.
Sri O.P. Singh, learned senior counsel referring to the provisions of Section 17 the Act of 1988, submitted that an offence such as referred to in Clause (e) of Sub-section (1) of Section 13 cannot be investigated without the order of a Police Officer not below the rank of a Superintendent of Police.
He submitted that prior to notification of 1995 (Annexure 1 to the writ petition), there was a notification dated 14.10.1993 (hereinafter referred to as the notification of 1993) (Annexure 3 to the writ petition). The notification of 1993 provided for investigation of cases relating to offences punishable under Section 13 of the Act of 1988 by a police officer in Uttar Pradesh Vigilance Establishment which were referred to Vigilance Establishment by the Government in the Vigilance Department without order of a Magistrate of the First Class. The notification of 1993 further provided that any offence referred to in clause (e) of subsection (1) of Section 13 of the Act of 1988 shall not be investigated without order of the police officer not below the rank of a Superintendent of Police. It is contended that by means of notification of 1995 in exercise of powers conferred by Section 21 of the General Clauses Act, 1897 read with first proviso to Section 17 of the Act of 1988 and in supersession of the notification of 1993, the Governor of Uttar Pradesh authorized the police officer of the Vigilance Establishment for the purposes of Section 17 of the Act of 1988. Thus, by the notification of 1995, the State Government, contrary to second proviso to Section 17 of the Act of 1988, has by the notification of 1995, conferred powers of investigation on a police officer of the Vigilance Establishment and has sought to actually amend Section 17 of the Act 1988 by means of the notification of 1995.Referring to the second proviso of Section 17 of the Act, 1988, he submitted that the Notification of 1995 even authorizes a Police Inspector of the Vigilance Department to investigate cases under the second proviso to Section 17 of the Act of 1988.
The English translation of the notification of 1993 reads as follows:
"In pursuance of the provisions of clause (3) of Article 348 of the Constitution the Governor is pleased to order the publication of the following English translation of notification No. 2565/XXXIX-4-93-44(33)-81, dated October 14,1993:
No. 2565/XXXIX-4-93-44(33)-81 Dated Lucknow, October 14, 1993.
In exercise of the powers under the first proviso to section 17 of the Prevention of Corruption Act, 1988 (Act No. 49 of 1988), read with section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in supersession of Government notification no. 1796/XXXIX-VGL-100-65, dated September 16, 1965, the Governor is pleased to authorise the police officers in Uttar Pradesh Vigilance Establishment not below the rank of Inspector of Police to investigate in case relating to Offence punishable under section 13 of the Prevention of Corruption Act, 1988, referred to Vigilance Establishment by the Government in the Vigilance Department, without the order of a Magistrate of the first class:
Provided that any offence referred to in clause (e) of sub-section (1) of section 13 of the Prevention of Corruption Act, 1988, shall not be investigated without the order of a police officer not below the rank of a superintendent of police.
By order, D.K. MITTAL Pramukh Sachiv The English translation of the notification of 1995 reads as follows:
In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of notification No. 3176/XXXIX-4-95-44(33)-81 dated October 9,1995:
No. 3176/XXXIX-4-95-44(33)-81 Dated Lucknow October 9,1995.
In exercise of the powers under the first proviso to section 17 of the Prevention of Corruption Act, 1988 (Act no. 49 of 1988), read with section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897) and in supersession of Government notification No. 2565/XXXIX-4-93-44(33)-81 dated October 14,1993, the Governor is pleased to authorise inspectors of Police in the Uttar Pradesh Vigilance Establishment for the purposes of section 17 of the said Act of 1988.
By order, PRAVIN CHANDRA SHARMA Pramukh Sachiv, A perusal of the notification of 1993 reveals that the notification was issued in exercise of power under first proviso to section 17 of the Act of 1988 read with section 21 of the General Clauses Act, 1897 and in supersession of Government Notification dated 16.9.1965. The police officers in Uttar Pradesh Vigilance Establishment not below the rank of Inspector of Police were authorised to investigate in case relating to offences punishable under section 13 of the Act of 1988 referred to Vigilance Establishment by the Government in the Vigilance Department, without the order of a Magistrate of the first class. The proviso to this notification of 1993 provided that any offence referred to in clause (e) of sub-section (1) of section 13 of the Act of 1988, shall not be investigated without the order of a police officer not below the rank of a superintendent of police.
However, in the notification of 1995, the Inspectors of Police in the Uttar Pradesh Vigilance Establishment were authorized for purposes of section 17 of the Act of 1988 in exercise of powes under first proviso to section 17 of the Act of 1988 read with section 21 of the General Clauses Act, 1897 in supersession of notification of 1993. Thus, in the notification of 1995, reference to section 13 of the Act of 1988 did not appear.
At this stage, it would be apposite to refer to provisions of section 17 and 13 of the Act of 1988 as under:
"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 the 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 a Magistrate of the first class, as the 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 therefor 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."
The second proviso thereto provides that an offence under sub section (1) of Clause (e) of Section 13 of the Act, 1988 shall not be investigated without the order of a Police Officer not below the rank of Superintendent of Police.
Section 13 of the Act, 1988 refers to criminal misconduct by a public servant and reads as under:
"13. Criminal misconduct by a public servant. -- (1) A public servant is said to commit the offence of criminal misconduct, --
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he, --
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation. -- For the purposes of this section "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
The learned counsel for the petitioner submitted that the impugned Notification of 1995 also mentions that action is to be taken read with Section 21 of the General Clauses Act 1897. Section 21 of the General Clauses Act, 1897 reads as under:
"21. Power to make to include power to add to, amend, vary or rescind [statutory instruments]. - Where, by any [Uttar Pradesh] Act, a power to issue [statutory instruments] is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, amend, vary, or rescind any [statutory instruments] so issued."
The contention on behalf of the petitioner that by means of the notification of 1995, the powers have been vested with a police officer of the Vigilance Establishment to investigate an offence referred to clause (e) of subsection (1) of Section 13 of the Act 1988 and that by means of notification of 1995, the State Government has sought to amend the second proviso to Section 17 of the Act 1988 is wholly misconceived. In the notification of 1993, the second paragraph thereof providing that any offence referred to in clause (e) of sub-section(1) of Section 13 of the Act 1988 shall not be investigated without order of a police officer not below the rank of a Superintendent of Police was a mere reiteration of second proviso of Section 17. Moreover, since the notification of 1993 was structured in a fashion allowing the relevant Inspectors of Police to investigate in case relating to offence punishable under section 13 of the Act of 1988, the second paragraph of the said notification sought to carve out an exception from reference made under section 13 of first paragraph so as to obviate any confusion with regard to second proviso to section 17 of the Act of 1988. The notification of 1995 has been made in exercise of powers of the first proviso of Section 17 read with Section 21 of the General Clauses Act and has authorized the police officers of the Vigilance Establishment for the purposes of Section 17 of the Act of 1988. It is evident that the police inspector of the Vigilance Establishment can only exercise the powers conferred under the first proviso to Section 17 inasmuch as the notification of 1995 itself has been issued in exercise of power under first proviso of Section 17 of the Act of 1988. The second proviso of Section 17 has not been referred to at all in this notification of 1995 leaving that proviso untouched in Section 17 of the Act of 1988. Any other interpretation of the notification of 1995 is specious and liable to be rejected.
Clause (e) of sub section (1) of Section 13 of the Act of 1988 specifically defines criminal misconduct as an offence if the public servant either himself or through any person on his behalf, is in possession or at any time, during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
There is no averment in the writ petition that what is the charge against the petitioner and the manner in which he is aggrieved by the notification dated 9.10.1995. Moreover, no submissions have been made on behalf of the petitioner with regard to factual issues involved in the case.
There is another aspect of the matter.
A perusal of Annexure no.4 to the writ petition shows that proceedings under section 7/13 (1) D, read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act, 1988) were initiated against the petitioner. The petitioner moved a discharge application which was rejected by the Court on the ground that the Inspector was fully authorized to investigate the case against the petitioner. The contention of the petitioner was that before directing the Inspector to arrest and investigate the charge against the petitioner, sanction of the Superintendent of Police was not taken. We may however, note that sanction for laying the trap and arrest of the petitioner under the Prevention of Corruption Act, 1988 was granted by the Special Secretary, Home, Vigilance Department, Lucknow as admitted by the petitioner in paragraph 24 of his discharge application dated 17.10.2011 filed in the court of Special Judge (Anti corruption), Meerut,(page 36 of the writ petition). The charge against the petitioner as per the complaint made by the complainant was that the petitioner had demanded an amount of Rs. 1 lakh for giving possession of commercial plot no. B-1 allotted to the complainant and for executing registered sale deed in his favour.
Thus the charge (as reflected in Annexure No. 4 to the writ petition) against the petitioner was not one of being in possession of pecuniary resources or property disproportionate to his known sources of income rather it may be that the case of the petitioner falls under Clause (d)(i) or (ii) of sub section (1) of Section 13 which defines criminal misconduct by a public servant if he by corrupt or illegal means, obtains for himself or for any other person any valuable or pecuniary advantage or any other clause of sub section (1) of Section 13 as may ultimately emerge in the course of the investigation and trial but certainly the charge against the petitioner was not one of being in possession of pecuniary resources or property disproportionate to his known sources of income. Under the second proviso to Section 17 of the Act it is only in the matter of investigation of an offence under Clause (e) of sub section (1) of Section 13 that such offence shall not be investigated without the order of a Police Officer not below the rank of Superintendent of Police. So far as an investigation into offences covered by Clause (a), (b), (c), and (d) as well as sub clauses (i), (ii) and (iii) of Clause (d) of sub section (1) of Section 13 of the Act, 1988 are concerned, sanction of a Police Officer not below the rank of Superintendent of Police, in our opinion has not been mandated by Section 17 of the Act of 1988.
Learned counsel for the petitioner has relied upon the judgment of the Supreme Court reported in (2006) 7 SCC 172 State Inspector of Police, Vishakhapattanam Vs. Surya Sankaram Karri. This was a case where a raid was conducted in the house of the respondent who was working as Assistant Station Master in the South-Eastern Railway, Vizianagaram, Andhra Pradesh, and some incriminating documents were recovered. In our opinion this judgment is not applicable to the facts of the present case as that was a case relating to an offence under Clause (e) of sub section (1) of Section 13 of the Act, 1988, as would emerge from para 13 of the judgment.
In our opinion from the discussion above the challenge by the petitioner to the notification of 1995 fails. Moreover, in the light of charge against the petitioner, we do not find any legal impediment in the investigation of the charges against the petitioner by a Police Inspector of the Vigilance Department since such investigation was not covered by the second proviso to Section 17 of the Act, 1988 and was not an investigation into a criminal misconduct as contemplated in Clause (e) of sub section (1) of Section 13 of the Act, 1988.
For reasons aforesaid we do not find any illegality or infirmity in the Government Order dated 9.10.1995. The writ petition lacks merit and is accordingly dismissed.
Dated: 27th July, 2018 o.k.