ORDER
N. Dhinakar, J.
1. The petitioners in the above petitions are A1, A3, A5, A7, A8, A10 and A12 in C. C. No. 1 of 1991 on the file of the Special Judge for Edamajayar Investigations, Ernakulam.
2. The proceedings were instituted before the trial Court against petitioners for various offences punishable under various provisions of the Penal Code and the provision of Prevention of Corruption Act. It is the case of the prosecution that these petitioners along with other accused entered into a criminal conspiracy during the period 1980 to 1987 and conceived a plan to make illegal profits for themselves in executing the construction of Idamalayar dam as a part of the Idamalayar project.
3. Idamalayar dam as a part of the Idamalayar project was sanctioned by the Planning Commission and huge expenditure in its construction was incurred. Later number of leaks were discovered in the tunnel which showed the inferior quality of construction of the dam which became a matter of public concern. The State Government appointed the then sitting Judge of the Kerala High Court as the Commission of Inquiry to conduct the probe. The Commission of Inquiry found the former Secretary, Irrigation and Power and certain others liable for positives acts of abuse of power. The recommendations of the Commission of Inquiry was accepted by the State Government and a special team for investigation into the crime was set up. After investigation, finally a report under Section 173, Crl. P.C. was filed against these petitioners and other accused before the Special Judge for various offences punishable under various provisions of the Penal Code and the provision of Prevention of Corruption Act, 1947.
4. When the matter was taken up the petitioners filed separate petitions under Section 239, Crl. P. C. and sought their discharge from the case. It is now submitted that the petitioner in Crl. M.C. No. 1294 of 1995 though filed a petition before the Special Judge in Crl. ML P. No. 64 of 1994, later withdraw it but chose to advance arguments seeking his discharge from the case under Section 239, Crl. P. C. The petitions filed by the other petitioners were not withdrawn and ultimately the learned Special Judge by his common order dated 18th July, 1995 dismissed the prayer of the petitioners seeking discharge from the case and framed charges. As against the said order of dismissal and framing of the charges against them the petitioners have now filed the above cases.
5. A third party has filed a petition in Crl. M. P. No. 2370 of 1995 seeking to implead himself as an intervener in Crl. M. C. No. 1550 of 1995.
6. As the petitioners are the accused in the same C. C. before the Special Judge I propose to pass the following common order in all the above cases.
7. Crl. M. C. No. 1294 of 1995 is filed by the 1st accused in the said case. As stated above, he filed a petition under Section 239, Crl. P. C. before the Special Judge in Crl. M. P. No. 64 of 1994 and sought his discharge from the case. Though later, he withdrew the petition, he chose to advance his arguments on the grounds raised earlier in the said petition and sought his discharge from the case. Trial Court rejected the plea of the petitioner and hence this Crl. M. C. No. 1294 of 1995, praying to quash the orders of the Special Judge passed under Section 239, Crl. P. C.
8. Two contentions were raised by the petitioner before this Court and they are: (1) The Special Judge ought not to have passed a considered order when he decided to frame a charge against him and (2) the Special Judge, for framing charges against him, ought not to have looked into the statements of the witnesses recorded by the investigating agency during investigation. Counsel for the petitioner, in fact, stated before the Court that the petitioner is prepared to face the trial and prove his innocence before the trial Court. I will first take up the first contention of the petitioner, viz. that the trial Court was not justified in passing a considered order when it chose to frame charges against him. It is not in dispute that the petitioner sought discharge from the trial Court by virtue of Section 239, Crl. P. C. which reads as follows :
'239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.'
The learned counsel, placing reliance upon Section 240, Cr. P. C, contended that only if there is a ground for presuming that the accused has committed an offence, triable by it, the Court shall frame in writing a charge against the accused. According to the counsel, though Section 239, Crl. P. C. contemplates an order recording the reasons of the Court for discharging the accused, Section 240 docs not contemplate any such passing of a detailed order while choosing to frame the charge. As the trial Judge has chosen to pass an order, refusing to discharge and framed charges against the petitioner, the counsel contends, the order is bad in law. I am not able to agree with the contention of the counsel for the petitioner. It is not in dispute, that the petitioner originally filed a petition under Section 239, Crl. P. C. and sought his discharge and later, though withdrew it, chose to advance his arguments for a discharge from the case. It is to be said, that when a petition is filed and the arguments were advanced for a discharge, the trial Court has to necessarily consider the contentions of the accused and then decide whether there are grounds to frame a charge and such a decision can only be made seen by an order, recording his reasons for so doing. It is not disputed that this petitioner and others in the above cases have filed petitions under Section 239, Crl. P. C. and they were not petitions under Section 240, Crl. P. C. The prayer before the trial Court of this petitioner as well as the other petitioners was one under Section 239, Crl. P. C. and not under Section 240, Crl. P. C. Though Section 240 does not specifically contemplate the passing of a considered order, Section 239 contemplates such an order. Chapter XIX of Crl. P. C. deals with procedure in respect of Trial of Warrant-Cases either instituted on a police report or instituted otherwise than on a police report. The last part of the above said chapter deals with the conclusion of the trial. Section 239, Crl. P.C. enjoins upon the trial Court to consider the police report and the documents sent with it under Section 173, Crl. P. C. The trial Court, if thinks necessary and after giving the prosecution and the accused an opportunity of being heard, considers the charge against the accused to be groundless, it shall discharge the accused and record its reason for so doing. Section 240, Crl. P. C. contemplates that, if, upon such consideration, viz. the consideration contemplated under Section 239 Crl. P. C., that it is of the opinion that the accused has committed an offence or offences punishable under the chapter, it shall then frame in writing a charge against the accused. A combined reading of Sections 239 and 240, Cri. P. C. makes it abundantly clear, that before a charge is framed, a trial Court is expected to consider the materials placed before it to decide whether charges could be framed against the accused. When the petitioners have filed petitions which were admittedly under Section 239, Crl. P. C. and chose to advance arguments seeking their discharge, the trial Court was left with no other alternative except to pass an order considering the contentions raised by the respective accused. In fact, the trial Court in its order also gave reasons for passing the considered order. The trial Judge has stated in his Order as follows :-
'It is true that the Court is not bound to record reason when it decides to frame charge against accused. Recording of reason is contemplated only when the Court decides to discharge the accused. But since some of the accused have filed petitions for discharge and since both sides have elaborately argued about the statements of certain witnesses and some documents produced by the prosecution, I think, it is proper to consider these aspects and give some reasons also.'
The petitioner having chosen to advance his arguments under Section 239 Crl. P. C, cannot now, at this stage say, after inviting an order from the Court on his contentions, that the order passed by the Special Judge is without jurisdiction. The learned counsel placed reliance upon a judgment of a learned single Judge of this Court in State v. M.K. Raghu, 1989 Cri LJ NOC 205 (Kerala). The above said judgment does not in any way support the contention of the petitioner. The learned single Judge in the above case has only held that the trial Court while exercising jurisdiction under Section 239 must exercise it judicially and a roving enquiry into the merits and demerits in details to decide whether a particular charge will ultimately stand scrutiny or not cannot be had. Evaluation of the evidence at that stage will not arise as the materials placed then will not have the status of evidence. I am at a loss to understand as to how this above referred judgment, supports the plea of the petitioner, that no order need be passed when a petition is filed for a discharge under Section 239, Crl. P. C. In view of my above discussion made, I reject the above said contention of the petitioner and I hold that the Special Court was justified in passing an order on the contentions raised by the petitioner as well as by the other accused in these cases.
9. The second contention is that the trial Judge committed an error in perusing of the statements of the witnesses recorded by the investigating agency during investigation. According to the petitioner's counsel, the trial Court, to decide whether charges have to be framed or not, has only to look into the documents which will be marked and exhibited as exhibits and not the statements of the witnesses recorded under Section 161, Crl. P. C. For the said contention the learned counsel once again placed reliance upon Sections 239 and 240 Crl. P. C. According to the learned counsel, the words used in Section 239 'upon considering the police report and the documents sent with it under Section 173', do not take within its wings the statements recorded under Section 161, Crl. P. C. In short, the counsel for the petitioner wants this Court to give a very narrow definition to the word 'document'. Though the Criminal Procedure Code does not define the word 'document' Section 29 of the Indian Penal Code defines it as follows :
'29. 'Document'.-The word 'document' denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.' It could be clearly seen from Sections 239 and 240, Crl. P. C. that before a charge is framed, the trial Court is expected to consider the police report and the documents sent with it under Section 173, Cri. P. C. If the charge against the accused is found to be groundless, the trial Court shall discharge the accused under Section 239, Cri. P. C. Under Section 240 if, upon such consideration, viz. the consideration of the police report and the documents sent with it under Section 173, if there are materials then the trial Court shall frame a charge in writing against the accused. Now the question is whether the statements recorded under Section 161, Cri. P.C. can be termed as documents as contemplated under Section 291, Cri. P. C.? Section 2(r) Cri. P. C. defines police report as follows:
'2(r). 'police report' means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173;'
Sub-section (2) of Section 173 mandates the police officer to forward a report to the Magistrate empowered to take cognizance of the offence on a public report in the form prescribed by the Slate Government stating the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and, if so, by whom, whether the accused has been arrested, whether he has been released on his bond, and if so, whether with or without sureties, and whether he has been forwarded in custody under Section 170. Sub-section (5) of Section 173 slates that when such a report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. A combined reading of Section 29, I.P.C., Sections 2(r), 173 and 239 of Cri. P. C. and Section 240, Cri. P. C. make it abundantly clear that the 'documents' referred in Section 239, Cri. P. C. are documents which are to be not only exhibited as exhibits during trial but also the statements of the witnesses recorded under Section 161, Cri. P. C. Under Section 239, Crl. P. C. the Magistrate shall consider the police report and the documents, which means he has to consider the report forwarded by the police officer under subsection (2) of Section 173 as well as the documents sent along with it under Section 173. A reading of Section 2(r) and Section 173, Cri. P. C. will show that police report is different from the documents. The word 'document' as defined under Section 29, I.P.C. denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. The learned counsel, contended that, the statements of the witnesses recorded during investigation cannot be used at the time of trial and under the circumstances such statements recorded by the investigating agency under Section 161 could not be looked into while deciding the question as to whether the accused is entitled for discharge or a charge has to be framed. In my view the argument of the petitioner's counsel cannot have any legs to stand. Though the statements recorded from the witnesses cannot be exhibited as documents and such statements recorded during investigation cannot be made use of in an enquiry or trial except as provided under Section 162, Cri. P. C., such statement can be made use of under Section 145 of the Evidence Act for the purpose of cross-examination of a witness as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. From the reading of Section 145 it is clear that the statements of witnesses recorded under Section 161, though cannot be made use of, in view of Section 162 Cri. P.C., they can still be used against a witness under Section 145 Evidence Act, to contradict him as his prior statement. If the contention of the petitioner's counsel is accepted then the trial Court will not have the opportunity of deciding the matter under Section 239, Cri. P.C. and any discharge passed by the trial Court or a charge framed by it will be without consideration of the relevant particulars which are germane to a decision at that stage.
10. The learned counsel placed reliance upon a judgment of the Calcutta High Court in Sk. Noor Mohammad v. The State, : AIR1959Cal276 . He argued that while framing a charge the trial Court cannot allow himself to be carried away by the statements made by the witnesses. The facts in the above judgment of the Calcutta High Court will not apply to the facts of this case. In the above said case the learned Magistrate allowed himself to be influenced by the case diary while framing the charges. The learned Magistrate in the said case not only perused the documents sent along with the police report but also the case diary filed by the investigating agency. Under the circumstances, the Calcutta High Court took the view that the Magistrate was not justified in looking into the case diary at that stage for deciding the question under Section 239, Crl. P. C. (Old Section 251-A Crl. P. C). Similarly the Full Bench decision of this Court in State v. Ammini, (1987) 1 Ker LT 928: (1988 Cri LJ 107) will not help the case of the petitioner. In the above said case, when the trial Judge made use of the statements of the witnesses as evidence during trial, the Full Bench took the view that it was illegal. In the said case the statements were made use of by the trial Judge as evidence during the trial and not at the stage of Section 239, Crl. P. C.
11. On the discussion made above, I am of the view, that the two contentions made by the petitioner in Crl. M. C. 1294 of 1995 are to be rejected and accordingly they are rejected. Crl. M. C. No. 1294 of 1995 is dismissed.
12. Now I will take up the case of the third accused. He has filed Crl. R. P. No. 750 of 1995, seeking to quash the charges framed by the trial Judge. The petitioner, the 3rd accused, is stated to be a partner and a close friend of the 1st accused. He is described as a member of the consultative council selected by the 1st accused. The counsel for the petitioner did not make any serious attempt to question the materials available against him, but has chosen to adopt the arguments advanced by the counsel appearing for the 1st accused. As I have already discussed the case of the 1st accused and rejected as stated earlier. This criminal revision filed by the 3rd accused also deserves to be dismissed and accordingly this is dismissed.
13. Before I venture to discuss the petition filed by A5 I will take up Crl. M.C. No. 1412 of 1995 filed by the 7th accused. The petitioner was the Chairman of the Kerala State Electricity Board and retired from service on 31 -12-1982. According to the prosecution, he was a party to the conspiracy in awarding the contract to the contractor (who is now dead). The contract was awarded to the contractor on a tender 189% above the P.A.C. According to the prosecution, the petitioner and others have conspired to award the contract to the deceased contractor on exorbitant rates and the offer was made by a letter dated 16-12-1982. According to the prosecution, as the statement of C.W. 9 shows that this petitioner was interested in the contractor. The statement of C.W. 9 shows the relationship of A3 with A1 and that the 3rd accused was interested in allotting the work to the contractor (A4 since dead). The case of the prosecution is that even though there was another tender it was rejected for insufficient reasons and the works were allotted to the deceased contractor on a higher rate.
14. Counsel for the petitioner contended that as he retired from service on 31-12-1982 he cannot be made liable for the subsequent acts of the other conspirators. I am not able to agree with the said contention. It is now a well settled principle that a conspirator can join the conspiracy at any stage and similarly leave it at any stage and still will be liable for the acts of the other conspirators. It is not in dispute that when the contract was awarded, the petitioner was one of the parties to the decision taken by the conspirators. In Stree Atyachar v. Prashad v. Dilip Nathumal, (1989) 1 Ker LT Short Notes Case No. 55, the apex Court of this country while interpreting the word 'ground' occurring in Section 239, Crl. P. C. (Old Section 227 Crl. P. C.) held that in the context it is not a ground for conviction, but a ground for putting the accused on trial. The Supreme Court further held that there need not, be an elaborate enquiry in sifting and weighing the material. It is also not necessary to delve deep into various aspects and all that the Court has to consider is whether the evidence material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into. As in my view there are prima facie materials warranting a trial against the petitioner I see no reason to entertain the petition of this petitioner and accordingly Crl. M. C. No. 1412 of 1995 filed by this petitioner is dismissed.
15. Now I will take up the petitions filed by A10 and A12 in the case. Crl. R. P. 583 of 1995 is filed by A10 against the orders of the Magistrate passed under Section 239 and Crl. M.C. 1494 of 1995 is a petition to quash the discharge framed against him. Similarly Crl. M. C. 1310 of 1995 is filed by A12 to set aside the orders of the Magistrate and Crl. M. C. 1499 of 1995 is a petition to quash the charges framed against him. Accused 10 was a Law Secretary and a part-time member of the Kerala State Electricity Board and A12 was the engineer. The counsel for the petitioners made, only a feeble attempt to argue that there are no, materials to connect the petitioners with the crime. He did not seriously pursue the case as the contentions raised by him were only questions of fact.
16. The other contention of the petitioners merits some consideration. Counsel for the petitioners submitted that the charges framed against the petitioners are under the Indian Penal Code as well as under the Prevention of Corruption Act, 1947 (Act 2 of 1947). The petitioners contended that as Act 2/1947 stands repealed by Act No. 49 of 1988 the trial Court ought not to have framed charges under the repealed Act. The counsel for the petitioners did not dispute the fact that the alleged offences committed by the petitioners were acts committed during the existence of Act 2/1947. Between the alleged commission of the offences and the finding of the charges, Act 2/1947 was repealed by Act 49/1988. According to the petitioners, the charges framed under the old Prevention of Corruption Act (Act 2/1947). cannot stand as the said Act now stands repealed. This argument, in my view, is misconceived. A combined effect of the provisions as engrafted in Sections 30 and 31 and the preamble of the new Act (Act 49/1988) makes it clear that the intention was to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. This clearly shows that the legislature was alive to the fact that the provisions under Chapter IX of the Penal Code, 1860, Prevention of Corruption Act, 1947 (Act 2 of 1947) and the Criminal Law Amendment Act, 1952, are required to be enacted into one Act with modifications so as to make the provisions more effective in combating corruption among public servants and it was to effectuate that intention that the Act (Act 49/1988) was put on the statute book. It goes without saying that the launching of prosecution under the old Act alone is legally permissible even subsequent to its repeal, in respect of offences which were committed during the period when the old Act was in force as there was no period of limitation prescribed therefor. When the old Act was originally enacted, offences relating to criminal misconduct and corruption were not made cognizable offences and such a policy was obviously as a result of the laudable intention, not to unnecessarily subject the public servants to harassment from any quarter whatever be hurling of frivolous accusations, thereby making them suffer agony, anguish and humiliation of all sorts. However, in the process of combating corruption under the provisions of that Act, experience gained thereof, impelled the Legislature to make such offences cognizable, of course with certain inbuilt provision giving necessary protection to the public servant.
17. The question to be decided now is as to whether acts done constituting cognizable offences during the currency of a repealed enactment i.e. Act 2/1947, are prosecutable subsequent to the repeal by Act 49/1988. It is not as if the old Act had been repealed once and for all, in the sense of there being no replacement by a new enactment. The sordid fact is that in order to curb the social menance of over-pervading corruption in all walks of life, the old Act had been repealed and in its place a new Act had come into existence which contains rather suitable modifications and stringent provisions with a view to cleanse the public life, free from evils of corruption. In doing so. sufficient care, caution and circumspection had been taken by incorporating certain saving provision in the new Act, as to what is to happen with regard to certain acts done or purported to be done during the currency of the old Act, subsequent to repeal. The saving provision, enables the institution of prosecution for such acts under certain contingencies. There is no denial of the fact that the old Act had been repealed and in its place a new Act had come into force on and from the date of such repeal, viz. 9-9-1988. Another fact which is not in dispute is that the criminal acts alleged against the petitioners were relatable to the period during which the old Act was in force. The Parliament in enacting the new Act took cognizance of the constitutional provision in Article 20 of the Constitution of India and incorporated a repeal and saving provision in Section 30 of the new Act which reads as follows :
'30. Repeal and saving.- (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law (Amendment) Act, 1952 (46 of 1952), are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.'
Omission of certain sections of Act 45 of 1860 had been provided for in Section 31 of the Act and it reads as follows:'31. Omission of certain sections of Act 45 of 1860.- Sections 161 to 165-A (both inclusive) of the Indian Penal Code shall be omitted, and Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act.'
The preamble to the new Act is couched in the following terms:
'An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith.'
The combined effect to the provisions engrafted in Sections 30 and 31 and the preamble of the new Act makes it clear that the intention was to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. At this juncture a useful reference can be made to Section 6 of the General Clauses Act, 1897, which reads as follows:
'6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'
18. In State of Punjab v. Mohar Singh, AIR 1955 SC 84 : (1955 Cri LJ 254) Section 6 of the General Clauses Act was dealt with and the Supreme Court, referring to the consequences flowing as a result of the repeal of an enactment, strikingly said thus:
'Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. The Court cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of saving clause is by itself not material. The provisions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid down in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed.'
19. In Baliah v. Rangachan, : [1969]72ITR787(SC) , one of the questions that fell for consideration was whether by reason of the appeal of the Income-tax Act, 1922 by the 1961 Act, the prosecutions in respect of prior proceedings under the 1922 Act were not saved, and whether prosecution under Section 52 of the 1922 Act was not sustainable. Their Lordships of the Supreme Court while dealing with this question expressed (at Pp. 704 and 705 of AIR):
'Section 297(1) of the 1961 Act expressly repeals the 1922 Act. Clause (2) of Section 297 provides that the matters expressly referred to in Clauses (a) to (m) are saved notwithstanding the repeal of the 1922 Act. It was contended on behalf of the appellant that under Clauses. (a) to (m) of Section 297 of the 1961 Act the prosecution in respect of proceedings pending at the commencement of the 1961 Act was not expressly saved and therefore it must be presumed that Parliament had not intended to save prosecution in respect of proceedings pending at the commencement of the 1961 Act. In our opinion, there is no jurisdiction for this argument. Section 6 of the General Clauses Act reads as follows:
xx xx xxThe principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room, for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests on intention to destroy them. Section 6 of the General Clauses Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. In other words, the provisions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is a simultaneous re-enactment unless a contrary intention can be gathered from the new statute. Having examined the provisions of Clause (2) of Section 297 of the 1961 Act we are of the opinion that it is not the intention of Parliament to take away the right of instituting prosecution in respect of proceedings which are pending at the commencement of the Act. It is true that there is no express sub-clause in Section 297(2) of the 1961 Act which provides for the continuation of such proceedings but our concluded opinion is that Parliament did not intend Section 297(2) of the 1961 Act to be completely exhaustive and in regard to such matters as are not expressly saved by Section 297(2) of the 1961 Act the provisions of Section' 6(e) of the General Clauses Act will apply. It follows therefore in the present case that under Section 6 of the General Clauses Act a legal proceeding in respect of an offence committed under the 1922 Act may be instituted even after the repeal of the 1922 Act by the 1961 Act and punishment may be imposed as if the repealing Act had not been passed.'
20. In Tiwari Kanhaiyalal v. I.T. Commr., Delhi : [1975]100ITR5(SC) , the question falling for consideration was whether institution of the prosecution under the Income-tax Act against the appellant for the alleged commission of offences by him under either the 1961 or the 1922 Act was bad in law as being violative of Section 28(4) of the 1922 Act or Article 20(1). The Supreme Court, on an elaborate consideration, answered the question thus : (Paras 4 to 7)
'4. Section 297(1) of the 1961 Act repealed the 1922 Act. Certain savings were provided in sub-section (2) some of which even without those express provisions could have been covered by Section 6 of the General Clauses Act, 1897. But for the sake of precision and certainly those provisions were made. Some of the Clauses (a) to (m) in Sub-section (2) of Section 297 are such that a different intention appears from them and they override or supplement the provisions contained in Section 6 of the General Clauses Act. Section 297(2) provides:
'Notwithstanding the repeal of the Indian Income-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act)-
xx xx xx(f) any proceeding for the imposition of a penalty in respect of any assessment completed before the 1st of April, 1962, may be initiated and any such penalty may be imposed as if this Act had not been passed;
(g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier year, which is completed on or after the 1st day of April 1962, may be initiated and any such penalty may be imposed under this Act.'
All the 12 assessments although they related to the years earlier than the year ending on the 31st day of March, 1962 were completed after coming into force of the 1961 Act. Hence a proceeding for the imposition of penalty in respect of any one of those years had to be and was initiated under the 1961 Act in accordance with clause (g), Clause (f) did not come into play and no penalty was imposed under Section 28 of the 1922 Act. That being so, as rightly pointed out by the High Court, Section 28(4) was not a bar to the launching of the prosecution as no such provision is to be found either in Section 271 or in any other section of the 1961 Act. Section 28(4) says No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this section. The said provision is not available to the appellant to bar the institution of the prosecution for an offence against either of the two Acts when a penalty has been imposed not under Section 28(1) of the 1922 Act but under Section 271(1) of the 1961 Act.
Grover, J. delivering the judgment on behalf of the Constitution Bench of this Court in the case of Jain Bros. v. Union of India : [1970]77ITR107(SC) has pointed out at p. 263 of SCR: (at pp. 784-85 of AIR)
'It is obvious that for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the satisfaction of the income-tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty. Whatever the stage at which the satisfaction is reached the scheme of Sections 274(1) and 275 of the Act of 1961 is that the order imposing penalty must be made after the completion of the assessment. The crucial date, therefore, for purposes of penalty is the date of such completion.' xx xx xxEven Clause (1) of Article 20 of the Constitution does not help the appellant. It is not a post facto legislation which is being pressed into service against him. As pointed out by a Constitution Bench of this Court in Rao Shiv Bhahadur Singh v. State of Vindhya Pradesh 1953 SCR 1188 at p. 1198: (1953 Cri LJ 1480 at p. 1484).
This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well-known case of Phillips v. Eyre (1870) 6 QB 1 at pp. 23 and 25 also by the Supreme Court of U.S.A. in Calder v. Bull (1780) 3 Dalles 386: 1 Law Ed 648 at p. 649. In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust.
Article 20 (1) also prohibits the subjecting of any person to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. On the facts alleged against the appellant, if found to be true, at the time he made the false statements in the declarations he did commit an offence under Section 52 of the 1922 Act. Sub-section (4) of Section 28 did not obliterate the factum of the commission of the offence and did not transmute the offence into an innocent act because of the imposition of penalty underSection 28. Such imposition merely barred the prosecution for the trial and conviction of the commission of the offence. The penalty having been imposed under Section 271 of the 1961 Act the launching of the prosecution became permissible and was not hit by Article 20(1) of the Constitution. We are inclined to think that the offence, if any, committed by the appellant was under Section 52 of the 1922 Act as the allegedly false statements in declarations were made at a time when the said Act was in force. No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the appellant under Section 277 of that Act.
The punishment provided in this section greater than the one engrafted in Section 52 of the 1922 Act. To that extent only the appellant would be entitled to press into service the second part of Clause (I) of Article 20 of the Constitution which says that no person shall:
'be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.' It is advisable to discuss and dispose of the new point which arose during the hearing of these appeals. Sub-section (1) of Section 297 of the 1961 Act repealed the 1922 Act including Section 52. In subsection (2) no saving seems to have been provided for the launching of the prosecution under the repealed Section 52 of the 1922 Act. It does not seem correct to lake recourse to clause (h) of Section 297(2) to make the offences come under Section 277 of the 1961 Act as was endeavoured to be done by the respondent in the first 12 complaint petitions. But then from no clause under sub-section (2) a different intention appears in this regard from what has been said in Section 6 of the General Clauses Act. On the facts alleged the criminal liability incurred under section 52 of the 1922 Act remains unaffected under Clause (c) of Section 6 of the General Clauses Act.'
21. In C.P. Nayyar v. State (Delhi Admn.) : 1979CriLJ589 the question that arose was what was the effect of the repeal of the provision under Section 5(3) of the Old Act. and the Supreme Court answered thus: (Para 6)
'...In view of the provisions of the General Clauses Act the operation of all the provisions of the Prevention of Corruption Act would continue in so far as the offences that were committed when Section 5(3) was in force. The offences that were committed after the date of the repeal will not come under the provisions of Section 6(b) of the General Clauses Act. Section 6(c) also preserves all legal proceedings and consequences of such proceedings as if the repealing Act has not been passed. In this view it is clear that whether Act 16 of 1967 had been brought into force on 20th June, 1967 or not the rule of evidence as incorporated in Section 5 (3) would be available regarding offences, that were committed during the period before the repeal of Section 5(3).'
22. In R.S. Nayak v. A.R. Antulay : 1984CriLJ613 the Supreme Court sounded a note of caution that the rule of construction to be adopted in the interpretation of the statements must tend to advance the underlying object of the statutes. The expression in this regard cannot be better said than what the Supreme Court said in paragraph 18:
'The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the Court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self-defeating. The Court is entitled to ascertain the intention of the Legislature to remove the ambiguity by construing the provision of the Statute as a whole keeping in view what was mischief when the Statute was enacted and to remove which the legislature enacted the Statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting the rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the Court to adopt that construction which would advance the object underlying the act namely, to make effective provision for the prevention of bribery and corruption and at! any rate not defeat it.'
23. On the basis of the above legal principles and on a conspectus of the construction of the provisions contained in Section 30 of the new Act coupled with the provisions as contained in Section 6 of the General Clauses Act, 1897, and taking into consideration the object for which those provisions had been enacted, and on the face of the consequences flowing from the repeal of an enactment under different situations, as highlighted by the various decisions referred to above, it goes without saying that the framing of the charges under the old Act alone is legally permissible even subsequent to its repeal, as respects offences which were committed during the period when the old Act was in force. In view of the above discussion, I am of the view that the petitions Crl. R.P. 583 of 1995, Crl. M.C. 1494 of 1995, Crl. M.C. 1310 of 1995 and Crl. M.C. 1499 of 1995 are to be dismissed and accordingly they are dismissed.
24. Let me now take up the petitions filed by A5 and A8. Crl. M.C. 1539 of 1995 is filed by the 5th accused to quash the charges framed against him and Crl. M.C. 1320 of 1995 is to set aside the order of the Magistrate. Crl.R.P. 674 of 1995 is filed by the 8th accused against the order of the Magistrate and Crl. M.C. 1550 of 1995 is to quash the charges framed against him. As a common point of law was raised by the counsel appearing for both the petitioners I propose to deal with the above cases jointly.
25. Before I venture to discuss the common question of law raised by the respective counsel, I will first advert to some of the arguments advanced on questions of fact raised by the 8th accused. It is said that the 8th accused was the Financial Adviser and Chief Accounts Officer and was also a member of the Board. Counsel appearing for the 8th accused drew my attention to several documents, which are to be relied on by the prosecution during trial, and contended that no offence is made out against the petitioner. All these contentions were only based on questions of fact and the counsel was only asking this Court to appreciate the materials at this stage and give a finding thereon. In my view, such questions of fact can only be left to the trial Court to be decided after the trial. It is the case of the prosecution that though the 8th accused originally objected to the giving of the contract to the deceased contractor, he later did not raise any objection and in fact was a party to the decision to delete the provision of the R.C.C. lining which resulted in a huge loss to the Electricity Board. According to the prosecution, he was also a party to the decision of the Board taken on 28-9-1983 which sanctioned mobilisation advance to the contractor. According to the prosecution, the mobilisation advance granted to the contractor was against usual practice. The contention of the 8th accused that he never met any of the other conspirators except during the Board meeting is only a question of fact. It is to be remembered that conspiracy is always hatched in secrecy. The essence of the conspiracy being bare agreement between the conspirators, the same has to be proved in the manner allowed by law. While accepting the materials that may be let in to prove the case of conspiracy the reality of the situation has to be taken into account. Conspiracy as a whole is brought about in secrecy and the proof of the same, by adoption of evidence direct, is really an impossible feat in most of the cases, though in the rarest of rare occasion, the possibility of obtaining such evidence is there. As such the conspiracy may be proved in most of the cases, by process of inference or induction from relevant facts and circumstances. In the case on hand, it cannot be said that the materials disclosed do not at all prima facie point out the existence of certain relevant facts and circumstances, creating a suspicion of the existence of a conspiracy for committing various offences punishable under the IPC as well as under the Prevention of Corruption Act. As stated by the Supreme Court, in the case referred to by me above, while dealing with the case of the 1st accused, the Court need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into. The contention of the petitioner that he was not shown as the accused in the first information report, even though the said report was registered after Justice K. Sukumaran Commission of Inquiry submitted his report, has to be rejected as the Commission's job was only to find out whether any irregularities were committed in executing the work. Only an investigating agency after an elaborate investigation can unearth materials connecting the various accused with the alleged commission of offences. It is to be remembered that in fact the 5th accused, Gopalakrishna Pillai, who was shown as 6th accused in the first information report registered by the investigating officer was examined as a witness in the Commission of Inquiry. Only later, after investigation, his part in the conspiracy came into a limelight and he was brought in as an accused in the case. The first information report was registered. initially, against persons whose involvement was prima facie indicated by the Justice K. Sukumaran Commission of Inquiry and later, on investigation the investigating agency came to the conclusion that others were also members to the said conspiracy. The other contention of the petitioner that sometime during the period of conspiracy he was at Canada and hence he is not a member of the conspiracy cannot also be accepted. It is not necessary for a conspirator to be present during the entire period of conspiracy and if it is shown that he contributed his part for the furtherance of the conspiracy, it is sufficient to hold, that charges have to be framed against him. Even if there is a suspicion the charges have to be framed. As the learned single Judge of this Court held in State v. M.K. Raghu 1989 Cri LJ NOC 205 (Kerala) evaluation of the evidence will be only at the stage of trial. The expression 'legal evidence' is not appropriate at that stage when the magistrate has only to make up his mind to frame charge or discharge the accused. The materials placed then will not have the status of evidence. The prosecution merely represents that the persons whose statements were recorded and considered may be expected to depose to the facts. A roving enquiry into the merits and demerits in details to decide whether a particular charge will ultimately stand scrutiny or not cannot be had. In view of the discussion made above the said contentions raised by the 8th accused on the questions of fact are rejected by me.
26. A common contention was raised by the 8th accused as well as by the 5th accused. The 5th accused is an officer of the Indian Administrative Service and he was the Special Secretary to Irrigation and was also a member of the Kerala State Electricity Board. He was also a member of the Board as Secretary, Irrigation and Power. As stated earlier, the 8th accused was the Principal Adviser and Chief Accounts Officer and he was also a member of the Kerala State Electricity Board. The respective counsels of the petitioners contended, that the prosecution as against A5 and A8, for offences punishable under Section 161 and for offences punishable under Prevention of Corruption Act is bad in law as there is no legal sanction as contemplated under Section 6 of the Prevention of Corruption Act (Act 2/1947). The prosecution conceded that no sanction was obtained under Section 6 of the Prevention of Corruption Act. though a sanction was obtained under Section 197 Cri. P.C. and produced before the trial Court. The prosecution contended that as there is a sanction under Section 197 Crl. P.C. there is no further need to obtain a sanction under Section 6 of the Prevention of Corruption Act. I am unable to agree with the arguments advanced by the prosecution on this score. It is not in dispute that A5 is removable from office by the Government of India and A8 is removable from his office by the State of Kerala. A Full Bench of the Supreme Court in S.A. Venkataratnan v. The State : 1958CriLJ254 considered the distinction between Section 197 Cril. P.C. and Section 6 of the Prevention of Corruption Act (Act 2/ 1947). The apex court took the view that in construing the provisions of a statute it is essential for a Court, in the first instance, to give effect to the natural meaning of the words used therein, if those words are clear enough. It is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the legislature by construing the provisions of the statute as a whole and taking into consideration other matters and the circumstances which led to the enactment of the statute. The Supreme Court further held that Section 6 must be construed with reference to the words used therein independent of any construction which may have been placed by the decisions on the words used in Section 197, Crl. P.C. The Supreme Court took the view that if a general power to take cognizance of an offence is vested in a Court, any prohibition to the exercise of that power, by any provision of law, must be confined to the terms of the prohibition. In enacting a law prohibiting the taking of cognizance of an offence by a Court, unless certain conditions were complied with, the legislature does not purport to condone the offence. It is primarily concerned to . see that prosecution for offences in cases covered by the prohibition shall not commence without complying with the conditions contained therein, such as a previous sanction of a competent authority in the case of a public servant, and in other cases with the consent of the authority or the party interested in the prosecution or aggrieved by the offence. In view of the decision of the Supreme Court, in giving effect to the ordinary meaning of the words used in Section 6, the conclusion is inevitable that at the time a Court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply.
27. In R.R. Chari v. State of Uttar Pradesh : [1963]1SCR121 the Supreme Court after considering Section 197 Crl. P.C. and Section 6 of the Prevention of Corruption Act held that scheme of Section 6 is different from that of Section 197, Cr. P.C. The Supreme Court held as follows: (para 19).
'It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, a saction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants from frivolous prosecution.'
The Supreme Court further held as follows : (para 21).
'It would be noticed that the scheme of this section is different from that of Section 197 of the Code of Criminal Procedure. The requirement of the first part of Section 197(1) which constitutes a sort of preamble to the provisions of Section 197(1) (a) and (b) respectively, has been introduced by Section 6 severally in Clauses (a) and (b). In other words, under Clauses (a) and (b) of Section 197(1) the authority competent to grant the sanction is determined only by reference to one test and that is the test provided by 'the affairs in connection with which the public servant is employed'; if the said affairs are the affairs of the Federation, the Governor-General grants the sanction; if the said affairs are the affairs of a Province, the Governor grants the sanction. That is the position under Section 197(1) as it then stood. The position under Section 6 of the Prevention of Corruption Act is substantially different. Clauses (a) and (b) of this section deal with persons permanently employed in connection with the affairs of the Federation or in connection with the affairs of the Province respectively, and in regard to them, the appropriate authorities are the Central Government and the Provincial Government. The case of a public servant whose services are loaned by one Government to the other does not fall either under Clause (a) or under Clause (b), but it falls under Clause (c). Having regard to the scheme of the three clauses of Section 6, it in difficult to construe the word 'employed' in Clauses (a) and (b) as meaning 'employed for the time being.' The said words, in the context, must mean 'permanently employed'. It is not disputed that if the services of a public servant permanently employed by a Provincial Government are loaned to the Central Govt., the authority to remove such public servant from office would not be the borrowing Government but the loaning Government which is the Provincial Government, and so, there can be no doubt that the employment referred to in Clauses. (a) and (b) must mean the employment of a permanent character and would not include the ad hoc or temporary employment of an officer whose services have been loaned by one Government to the other. Therefore, the appellant's case for the purpose of sanction under Section 6 will fall under Clause (c) and that inevitably means that it is only the Provincial Government of Assam which could have given a valid sanction under Section 6. At the relevant time, Section 6 had come into operation, and Section 6 expressly bars the cognizance of offences under Section 161 unless a valid sanction had been obtained as required by it. Therefore, in the absence of a valid sanction, the charge against the appellant under Section 161 and Section 165 could not have been tried and that renders the proceedings against the appellant in respect of those two charges without jurisdiction.'
In view of the principles laid down by the Supreme Cowl in the above two decisions referred to above, I am of the view that the charges framed against these two petitioners, viz., A5 G. Gopalakrishna Pi Mai and A8, V. Sukumaran Nair for, the offences punishable under Section 161. IPC and under Section 5(2) read with Section 5(1)(c) and (d). of the Prevention of Corruption Act alone have to be, quashed for want of valid sanction under Section 6 of the Prevention of Corruption Act. Though the charges for the offences under Section 161 and for the offences under the Prevention of Corruption Act, have to be quashed on account of the lack of sanction, as required under Section 6 of the Prevention of Corruption Act. I am of the view that the prosecution can proceed as against A5 and A8 in respect of the other offences with which they are charged, as there is a valid sanction under Section 197, Crl. P.C. for the other offences.
28. Before parting with this case I wish to mention that though the Public Prosecutor slated that they have addressed the Union of India seeking sanction to prosecute the 5th accused, he was not able to produce any material and was not even able to give the date as to when the Union of India was addressed in the matter. It looks that certain powers which are interested in torpedoing the successful prosecution of the 5th accused are at work. It will not be out of place to refer to a fact that on 24-8-1992 a petition was filed under Section 321, Crl. P.C. by the special prosecutor before the trial court for withdrawal of the prosecution against A5 and when it was dismissed a revision was filed by the State of Kerala against the said order before the High Court. The High Court set aside that order of the trial court, refusing to allow the withdrawal of the prosecution, and when the matter went up to the Supreme Court the apex court set aside the orders of the Kerala High Court by a decision reported in V.S. Achuthanandan v. R. Balakrishna Pillai : AIR1995SC436 and remanded the matter back to the trial court. Even at this stage the prosecution is not able to give the exact date as to when they sought sanction from the Central Government and the doubtful bona fides of the prosecution is writ large in prosecuting this accused. A doubt is created in the mind of the court, about the seriousness of the prosecution, in prosecuting A5 in spite of the dictates of the Supreme Court. 1 can only express my anguish and agony at the attitude of the prosecution. Though an officer was present in court with the files to instruct the Public Prosecutor, the prosecution was not able to produce before me, the copy of the letter written to the Union of India, seeking sanction under Section 6 of the Prevention of Corruption Act to prosecute the 5th accused. Nor the prosecution was willing to give the date on which the said letter was addressed to the Union of India.
29. In any event, as there is no valid sanction as contemplated under Section 6 of the Prevention of Corruption Act, I hold that the charges framed against A5 and A8 under Section 161. IPC and under Section 5(2) read with Section 5(1) (c) and (d) of the Prevention of Corruption Act, 1947 have to be quashed. I also hold that there is no bar for prosecuting A5 and A8 for the other offences for which a valid sanction was obtained under Section 197, Crl. P.C. In my view, the absence of a sanction under Section 6 of the Prevention of Corruption Act will not prevent the prosecution from prosecuting A5 and A8 for the other offences with which they now stand charged, as a valid sanction had been given under Section 197. Crl. P.C. It is to be noted that in R.R. Chari v. State of Uttar Pradesh, : [1963]1SCR121 . the case which was already referred to by me. the Supreme Court though set aside the proceedings against the accused under Sections 161 and 165 of the IPC took the view that a prosecution can be continued in respect of the other offences for which no sanction is required under Section 6 of the Prevention of Corruption Act. The Supreme Court, in the above said judgment took the view that the offences which are outside the scope of Section 6 of the Prevention of Corruption Act and for which sanction is found accorded under Section 197. Crl. P.C. a prosecution will be legally permissible.
30. In the result I dismiss Crl.M.C. 1294 of 1995, Crl. R.P. 750 of 1995, Crl. M.C. 1412 of 1995, Crl. R.P. 583 of 1995, Crl. M.C. 1494 of 1995, Crl. M.C. 1310 of 1995 and Crl. M.C. 1499 of 1995, Crl. M.C. 1539 of 1995, and Crl. M.C. 1320 of 1995 filed by the 5th accused Gopalakrishna Pillai and Crl. R.P. 674 of 1995 and Crl. M.C. 1550 of 1995 filed by the 8th accused V. Sukumaran Nair are partly allowed, in that, the 5th and 8th accused though need not face a prosecution for the offences under Section 161, IPC and under Section 5 (2) read with Section 5(1) (c) and (d) of the Prevention of Corruption Act, 1947. they have to face the prosecution for the other offences. As I dismiss the above petitions in limine. I see no reason to entertain Crl. M.P. 2370 of 1995 filed by the 3rd party intervener seeking to implead himself as a party in Crl. M.C. 1550 of 1995. This Crl. M.P. is also dismissed.