- (1.) THIS is an application in revision by the accused Taj Khan against an order of the Special Judge, Udaipur, by which he framed a charge against the petitioner under sec. 161 read with sec. 116 of the Indian Penal Code.
(2.) THE facts of the case out of which this revision arises may shortly be stated as follows. On the 10th January, 1952, it is alleged that the accused offered a bribe of Rs. 500/- to the Income-tax Officer, A Ward, Udaipur, with a view to gain his favour in an assessment case relating to the petitioner pending before the said officer. THE latter made a telephonic report to the Deputy Inspector General of Police, Udaipur, who caused an investigation to be made, and it appears that the accused was caught almost red-handed. THE accused was challaned in the court of the special Judge under sec 161 read with sec. 116 I. P. C. THE learned Judge after recording the evidence produced by the prosecution has framed a charge against him under the aforesaid secs. This revision has been preferred against that order It is contended before me that the entire proceedings before the learned Special Judge are illegal and deserve to be quashed. Learned counsel puts his case in this way According to him, an offence under sec. 161 read with sec. 116 I. P. C. is non cognizable, and, therefore, the police had no authority to investigate it and present a charge-sheet against the accused,and it is further argued that on the basis of such a charge-sheet, the learned Judge could not have legally framed a charge against the accused as he has done. It is true that sec. 161 of the Indian Penal Code was originally a non-cognizable offence according to Sch. II thereof. By sec. 3 of the Prevention of Corruption Act (No. II) ¦ of 1947, however, this offence has been made cognizable. This Act was made applicable to the Sate of Rajasthan by the Rajasthan Adaptation of Centra! Laws Ordinance, 1950 (Ordinance No IV of 1950 ). Sec. 3 has since then been further amended by the Prevention of Corruption (Second Amendment) Act (No. LIX of 1952); but as the offence in the present case is said to have been committed in 1950, the subsequent amendments must be left out of consideration for our present purposes Sec. 3, as it stood before it was amended, was in these terms : "an offence punishable under sec. 161 or sec. 165 of the Indian Penal Code, shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure (V of 1898), notwithstanding anything to the contrary contained therein. Provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefore without a warrant. " It was at one stage conceded before me that sec. 161 I. P. C. was made a cognizable offence as a result of the Prevention of Corruption Act having come into force but it was argued that the legislature had made no similar provision with regard to sec. 161 read with sec. 116 and, therefore, an offence under the latter section still continued to be a non-cognizable one. It was also argued, however that even so far as sec. 161 was concerned, it was a mistake to call it a cognizable offence, ordinarily so called, because according to the definition of a cognizable offence under sec, 4 of the Code of Criminal Procedure, a cognize a-ble offence is one in which a police officer may, in accordance with the Second Schedule or under any law for the time being in force, arrest without warrant. And it was strenuously contended that the proviso appended to sec. 3 according to which "before a police officer below the rank of Deputy Superintendent of Police could investigate any such offence, he must obtain the order of a Magistrate of the First Class and further that he could not make any arrest without a warrant" indicated that it was not a cognizable offence within the meaning of sec. 4 (f) of the Code of Criminal Procedure. Taking up the second argument first, I am of opinion that there is no substance in the contention advanced on behalf of the petitioner. A cognizable offence under the Criminal Procedure Code is one for which a police officer may arrest without warrant in accordance with the Second Schedule or under any law for the time being in force. The words "under any law for the time being in force" are wide enough to cover the provision made under the Prevention of Corruption Act. The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the purpose of safeguarding public servants from harassment as the hands of subordinate police officers) under the proviso to sec. 3 of the said Act cannot, in my opinion, lead to the conclusion that such offence is non cognizable If that was not so, there would be no point in the legislature enacting the provision made under sec. 3 of the Prevention of Corruption Act and saying that an offence under sec. 161 I. P. C. shall be deemed to be a cognizable offence for the purpose of the Code of Criminal Procedure (V of 1898) notwithstanding anything to the contrary contained therein. I, therefore, hold that an offence under sec. 161 was undoubtedly made cognizable by the Prevention of Corruption Act, and the proviso to sec. 3 thereof does not furnish any argument to the contrary. The next question to consider is whether an offence under sec. 161 as such having been made cognizable an offence of abetment thereof under sec. 116 still continued to be non-cognizable. The contention of learned counsel for the petitioner is that if the intention of the legislature was that the offence of abetment should also be non-cognizable, there was nothing to prevent it from saying so. This contention is also, in my judgment, without any merit. The reason clearly is that Sch. II of the Code of Criminal Procedure makes the offence of abetment under sec. 116 cognizable or non-cognizable according to the main offence abetted. In other words, if the offence abetted if non-cognizable, its abetment will also be non-cognizable, but if the offence abetted is cognizable, then the offence of abetment thereof will also be cognizable. In this view of the matter I have no hesitation in coming to the conclusion that an offence under sec. 161 read with sec. 116 must be held to be a cognizable offence. It follows, therefore, that the police was perfectly competent to investigate the case which was a cognizable one according to sec. 5 of the Prevention of Corruption Act read with the entry relating to sec. 116 in the second schedule of the Code of Criminal Procedure. No authority to the contrary has been cited before me by learned counsel for the petitioner. It may perhaps be added that the enactment of sec. 165 (A) in the Indian Penal Code (by the Criminal Law Amendment Act (No. XLVI) of 1952) and its inclusion in sec. 3 of the Prevention of Corruption Act by the Prevention of Corruption (Second Amendment) Act (No. LIX) of 1952, indicates what was the real intention of the legislature in this connection before the amendment. I may also point out that no contention whatsoever has been raised before me that there was a breach of any of the conditions laid down in the proviso to sec. 3 of the Prevention of Corruption Act in the present case. Learned Deputy Government Advocate further raised the contention that irrespective of the legality or the illegality of arrest, the learned Special Judge was properly seized of this case under sec. 190 Cr. P. C. , which under clause (b) permitted cognizance being taken of any offence upon a report in writing of such facts made by any police officer. It was argued that there was a report by the police in writing of the facts constituting the offence and that the learned special Judge was authorized to take cognizance on that basis, and it was of no materiality at all whether the investigation or the arrest preceding it was irregular. I consider it unnecessary to decide this point, as I have already reached a clear conclusion that the offence in the present case was a cognizable one and that the police were within their authority to investigate and charge-sheet the accused in respect of it. I may also add that the finding of the learned Judge below that there was a prima facie case against the accused for a charge being framed against him was not challenged before me at all. The result is that this revision fails and is hereby dismissed. Leave to appeal to the Supreme Court is refused. ;