EMPEROR Vs. RUSTOM ARDESHIR BANAJI

JUDGEMENT

(1.) THIS revisional application raises some interesting questions affecting the jurisdiction of the learned Magistrate to try the case in pursuance of the charge-sheet submitted by the prosecution against the accused. The material facts which give rise to the said points of law are not in dispute. The petitioner is a graduate in law and had been employed as a Legal Assistant to the Director of Civil Supplies Accounts, Bombay. As such he is a public servant. The police received information from one Shivlal that as such public servant the petitioner was demanding a reward of Rs. 100 from Shivlal for having done an official act. The said Shivlal had entered into a contract with the Government of Bombay, Food Department, in January 1947, for the supply of certain commodities and had deposited Rs. 1,000 with the Government for fulfilment of the said contract. Shivlal was, however, unable to perform the contract and had applied to the petitioner for cancellation of the said contract and for the return of the deposit of Rs. 1,000. The deposit amount was ordered to be returned, and, according to Shivlal, the petitioner was demanding Rs. 100 as a reward in that behalf. On receiving this information Sub-Inspector Mistry prepared a trap and proceeded to take the usual steps to entrust Shivlal with marked currency notes of the value of Rs. 100 in the presence of panchas and to arrange for further steps in pursuance of the said trap. Accordingly, Shivlal approached the petitioner and, according to the prosecution, the petitioner accepted from him the amount of Rs. 100 in the form of the marked currency notes. Thereupon Shivlal made the agreed signal and Sub-Inspector Mistry raided the place when the marked currency notes were produced by the petitioner from the pocket of his trousers. A panchanama of this incident was duly made and the petitioner was put under arrest. Sub-Inspector Mistry then carried on further investigation into the offence and as a result he sent a charge-sheet against the petitioner on May 20, 1947, in the Presidency Magistrate's 18th Court, Girgaum, alleging that the petitioner had committed an offence punishable under Section 161 of the Indian Penal Code, 1860. When the hearing of the case commenced in the Court of the learned Magistrate, the petitioner challenged the jurisdiction of the Magistrate to try the case on the ground that the arrest of the petitioner, and the investigation of the case, made by Sub-Inspector Mistry which had given rise to the charge-sheet in question, were illegal and without jurisdiction and that the proceedings initiated on such a charge-sheet could not be maintained.

(2.) IN order to appreciate the contentions thus raised by the petitioner it is necessary to refer to the provisions of two recent Acts, Bombay Act XXX of 1946 and INdia Act II of 1947. Section 8 of the Bombay Act provides that in Schedule II to the Code of Criminal Procedure in the third column in the entry relating to Section 161 for the words "shall not" the word "may" shall be substituted. A similar amendment was made in regard to Section 166. The result of this amendment is that the offence punishable under Section 161 has become a cognizable offence so that a public officer who is charged with the commission of the offence can be arrested without a warrant under Section 4 (f), and the investigation into the offence can be conducted by any officer in charge of a police-station without the order of a Magistrate under the provisions of Section 156 (7) of the Code of Criminal Procedure.

(3.) BEFORE determining the question of repugnancy it is necessary to ascertain whether the provisions of the India Act apply to the City of Bombay. The learned Government Pleader has contended that the said provisions do not apply to the City of Bombay, and we are disposed to take the view that this contention is well founded. As I have already mentioned, Section 3 of the India Act prohibits police officers below the rank of Deputy Superintendent of Police from investigating an offence under Section 161 or from arresting the offender without the order of a Magistrate of the first class, in other words this section refers to the police officers below a specified rank and to the Magistrates of a particular class. The police officer falling within the scope of the proviso must be a police officer below the rank of a Deputy Superintendent of police, and the Magistrate whose sanction such police officer must obtain before investigating the offence or arresting the offender is described as a Magistrate of the first class. Now, in the City of Bombay there is no police officer who holds the rank of a Deputy Superintendent of Police, and there is no Magistrate who can be legally described as a Magistrate of the first class. The law relating to the police in the City of Bombay is contained in the Bombay City Police Act, Bombay IV of 1902. Section 3 (b) of the said Act defines "police Officer" as meaning any member of the Police force for the City of Bombay appointed under the Act, and provides that the said expression shall include the Commissioner of Police, a Deputy or Assistant Commissioner of Police, and, in certain cases, an additional or special Police Officer. "officer in charge of a section" is defined by Section 3 (c) as including, when the Inspector in charge of the section is absent or unable to perform his duties, the next senior Police Officer in the section, or such other officer as the Superintendent of the Division may, with the sanction of the Commissioner of Police, appoint in that behalf. It is true that Section 3 (m) defines "subordinate ranks" as meaning any ranks below that of Deputy Superintendent. This definition has been inserted in the Bombay City Police Act by the adaptation of Indian Laws Order in Council in 1937, and is in terms identical with a similar definition in the Bombay District Police Act. The Bombay District Police Act provides for the appointment of the Deputy Superintendent of Police, but it is common ground that though reference is made to the Deputy Superintendent in Section 3 (m), no officer answering the said description is or can be appointed in the City of Bombay. The definition of "subordinate ranks" contained in Section 3 (m) is material for the purpose of determining the powers of the Commissioner of Police under Section 7 of the Act; but the reference to the Deputy Superintendent in the said definition does not, in our opinion, seem to justify the assumption that in the ranks of the police in the City of Bombay there is any officer satisfying that description. It would therefore be impossible to predicate about any Police Officers in the City of Bombay that they are below the rank of Deputy Superintendent. That being so, it would technically be impossible to hold that Sub-Inspector Mistry is an officer below the rank of the Deputy Superintendent of Police under the provisions of the City of Bombay Police Act.