PRATAP SHANKAR MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.