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TMI Blog1974 (3) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... t for it in the present case, The (sic) having been one under Section 5(1)(d) read with Section 5(2) of the Act 2. A, brief statement of the facts will lead to a better appreciation of the arguments urged The accused (appellant) was an Assistant Station Master at Ateli in May 1967. P.W. 3, a member of the Armed Forces, was going back home by train from Udaipur with his wife and child on railway concession pass, carrying with him a trunk and bedding. When the train reached Ateli Railway station in the afternoon of May 9, 1967, P.W. 3 got down with his baggage and, when he handed over his ticket to the accused, was told that he had to pay extra for his wife and child and excess luggage a sum around Rs. 45 or more. P.W. 3 pleaded that he had no money on him then and was suggested a way out by the payment of Rs. 10 at once a bribe and a bargain. Promising to bring the money the next day, P.W. 3 left the station leaving his bedding as something of a non-human 'hostage' which was to be released on the payment of the illicit sum. On reaching his village late in the night, P.W. 3, the Jawan, thought of informing the authorities about this harassment. Accordingly, he contacted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer (Senior Scale), who granted the sanction did not and, under the rules, could not appoint or dismiss the accused. It has to be mentioned right at the beginning that P.W. 2, who was working as Divisional Operating Superintendent, Western Railway, Udaipur, has sworn that by virtue of delegated powers he was competent to remove an Assistant Station Master like the accused. Although his evidence was a little ambiguous in that he first swore that he was competent to remove but not to dismiss the accused, on a later date he was recalled, and gave evidence bringing with him the relevant rules and regulations. He testified that under the rules he was competent to dismiss a Class III servant drawing a pay rising up to Rs. 250. The accused came within this category. The High Court, not content with mere oral evidence on this issue, went elaborately into the legality of the sanction and found that the Indian Railway Establishment Code (Rule 134) authorised delegation of powers, and in the schedule there is a clear delegation of the powers in favour of Divisional Officers (Senior Scale) to make initial appointments to posts in scales of pay rising up to Rs. 380 per month. P.W. 2 is a Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. Moreover, it was easy for the appellant to produce his appointment order if his additional case that only a Divisional Personnel Officer and not a Divisional Officer appointed him. Again, all that Ex. P.E. and like documents prove is that allotments of selected persons are made by the higher officer (the R.T.S.) but the actual appointment is made by the D.T.S. There is thus no force in the 'last straw' plea that the R.T.S. alone could or did appoint him. 6. Two decisions were pressed before us by Shri Frank Anthony. The first, Vinayak V. Joshi v. State, is easily distinguishable. There, a Divisional Medical Officer who was of equal status with a Divisional Personnel Officer granted sanction but he had no delegation of powers of appointment which only the latter enjoyed. Mere equality of official status with a delegate cannot clothe the other officer with delegated powers and so in that decision it was held that the Medical Officer's sanction was incompetent, there being no delegation in his favour. The other ruling of the Rajasthan High Court, Sudarshanlal Bajaj v. S.P. Agarwala A.I.R. 1966 Raj. 37, has no application whatsoever. In these circumstances, we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, did was not investigation and was de hors Section 5A. By definition, only a police officer can investigate (Section 4(1) Cr. P.C.) A magistrate cannot. In the present case, after the trap episode was completed and the offence committed, P.W. 5 laid information before the police whereupon P.W. 7 started investigation. Until then, no investigation in law did or could commence. Moreover, while laying a trap by a police officer may be a step in investigation if a case has already been registered in a police station pursuant to which the trap is set, it cannot be part of investigation where the exercise is only to find out whether an offence is going to be committed. Hira Lal 1971CriLJ290 hardly rescues the accused. There is nothing in Section 5A preventing an executive magistrate or other public officer laying a trap to catch an allegedly corrupt official. The ruling in State of Bihar v. Basawan Singh 1958CriLJ976 by implication upholds this position. In fact, in the current crisis of rampant corruption polluting the public services so the public mind demoralisingly believes the need for superior officers vigilantly organising Operation Anti-Corruption cannot be discouraged by legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial officer, unlike an executive magistrate, should hesitate to get involved in police trap experiments and expose himself to charges of unveracity. However, there is force in the censure made in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1954] S.C.R. 1096 when the police provide inducements and instruments to commit crimes and judicial personages willingly lend themselves to be enmeshed in such shady attempts, sullying the image of independence of the judiciary. But we cannot exaggerate these dicta into a total ban on public officers, even though executive magistrates, playing a socially useful role in checking public men's corruption when the situation needs it. This is best illustrated by the observations of Das, J., in State of Bihar v. Basawan Singh 1958CriLJ976 where the learned Judge emphasized that a flexible, realistic approach is the sound course. In the present case, the magistrate was not a full-blooded judicial officer but only exercised limited preventive powers after separation of the judiciary from the executive. No de novo temptation nor bribe money was offered by the police in the present case. The magistrate merely sought to do his public duty of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tected act as symbolic of a chain scheme and symptomatic of a deeper systemic malady and not as an isolated aberration of a delinquent official. A massive purge, not stray traps, can alone be the strategy. That P.W. 1 supports the accused is no surprise if we realise how dubious 'distributive justice' works in some of these public offices where money is illicitly collected. An honest Assistant Station Master in the place of the accused could not have allowed P.W. 3 to leave without reporting to the railway police. Nor is the frivolous explanation that the ten-rupee note was brought by P.W. 3 when the accused wanted only one rupee as official charge for keeping the bedding in the lost property room worth a serious look. We regret our inability to accede to the forceful submissions of Shri Frank Anthony on this aspect of the case. 10. In passing we may mention that the criticism made by learned Counsel that P.W. 1 has been illegally permitted to be treated as 'hostile' is pointless. It is a discretionary power of the trial judge and when a witness strikes him as imbued with partisan zeal cross-examination may be allowed by the party who calls him. After all, these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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