Full Judgment
R.P. Gupta, J.
1. The petitioners approach this Court under Section 482 Cr.P.C., for quashing the charge-sheet submitted against them in the Court of Additional Sessions Judge, Burhanpur for alleged offence punishable under Sections 24 and 27 of the M.P. Vinirdishta Bhrashta Acharan Niwaran Adhiniyam, 1982. Section 27 makes punishable act of illegal diversion of land or illegal colonization. Section 24 provides how colonization can be undertaken and if colonization is undertaken in violation of those provisions it becomes punishable under Section 27 of that Adhiniyam and punishable with imprisonment upto three years or with fine or both.
2. These offences have been made cognizable by the Statute.
3. Collector Khandwa on 9-2-1989 brought it to the notice of the Commissioner, Indore Division that these accused were indulging in illegal colonization punishable under this Adhiniyam, The Commissioner vide his order dated 24-7-1989, directed that investigation into offence be made. Thereupon the police of Police Station Lalbagh, Burhanpur recorded First Information Report of this case on 13-4-1990 and proceeded with investigation and filed the charge-sheet under Section 173 Cr.P.C., before the Court of Judicial Magistrate First Class and the case was committed to the Court of Sessions and was made over to Additional Sessions Judge, Burhanpur.
4. When the matter came before the Additional Sessions Judge, the accused approached this Court for quashing the investigation as well as the trial on ground that the direction of the Commissioner to investigate the matter was illegal and not given on a report submitted by a Police Officer, as required under proviso to Section 39 of the Adhiniyam.
5. Section 39 may be extracted herein under :
'39. Cognizance of offences.-- All offences under this Act shall be cognizable :
Provided that the Police Officer shall not investigate an offence under this Act except on a direction of the prescribed authority not below the rank of the Commissioner of Division on a report submitted by him to such authority.'
6. The short argument of the counsel for the petitioner is that the Commissioner of the Division in this case was certainly authorized to direct investigation, but, pre-condition for that was that there should have been before him 'a report submitted by a Police Officer who had jurisdiction'. The stress of the counsel on the words 'except on a direction of the prescribed authority not below the rank of Commissioner on a report submitted by him to such authority'. The argument is that the words 'submitted by him' pertains to Police Officer in this case. The report appears to have been made by the Collector. There is no material to suggest that any report by Police Officer was made. It is argued that the Commissioner could not exercise his powers to direct investigation in the absence of a report submitted by Police Officer.
7. To buttress this argument learned counsel for the petitioner relies upon the judgment of a Single Bench of this Court in the case of State of M.P. v. Rajendra Singh Rathore, cited at 1997 (1) MPLJ 561. In that case also the accused was charged with offence of illegal colonization punishable under the provision of the aforesaid Adhiniyam. The Commissioner had granted sanction for investigation on the letter written to him by the Collector. The Bench said that since in this case the Police Officer who investigated into the matter did not submit a report to the prescribed authority or Commissioner before entering into investigation, in the absence of such report the Commissioner was not competent to direct investigation. His jurisdiction comes into play only if the Police Officer competent to investigate makes a report to him regarding the offence. So this Court upheld the discharge order passed by the trial Court. The trial Court had passed a discharge order because the investigation was not authorized by the Commissioner on report of the Police Officer, but, on the report of the Collector.
7. Learned counsel for the State has hardly much to say against the interpretation put on proviso to Section 39 of this Adhiniyam in the aforesaid judgment. Of course learned counsel says that the jurisdiction of the Commissioner to grant fresh sanction in accordance with the prescribed procedure or law is not affected thereby. There can be no dispute about it subject to any other applicable law. However, the wording of Section 39 proviso of the aforesaid Adhiniyam makes it clear that the prescribed authority, whether Commissioner or authority above him, is required to direct investigation 'on receiving a report by police'. The investigation generally starts after the First Information Report. The practical effect of this provision could be that once a First Information Report is lodged, the Police Officer having jurisdiction to investigate should submit report to the prescribed authority and the prescribed authority after looking into the aspects of the matter, has jurisdiction to direct investigation. But, it does not say that the prescribed authority can direct investigation on coming to know the commission of offence from other source than a report of Police Officer. So the direction for investigation could not be made and resultantly, the investigation itself could not be made, or was illegal. The charge-sheet under Section 173 Cr.P.C., based on such investigation is, therefore, liable to the quashed. The same is quashed accordingly. Of course this does not preclude the Commissioner or prescribed authority from directing investigation afresh in accordance with law or the police to investigate in accordance with law.
8. The petition is accordingly accepted.