PETITIONER:
H. N. RISHBUD AND INDER SINGH
Vs.
RESPONDENT:
THE STATE OF DELHI(And connected Appeals)
DATE OF JUDGMENT:
14/12/1954
BENCH:
JAGANNADHADAS, B.
BENCH:
JAGANNADHADAS, B.
MUKHERJEA, B.K.
BOSE, VIVIAN
CITATION:
1955 AIR 196 1955 SCR (1)1150
ACT:
Prevention of Corruption Act, 1947 (II of 1947), s. 5(4) and
proviso to s. 3-Prevention of Corruption (Second Amendment)
Act, 1952 (LIX of 1952), s. 5-A-Whether mandatory or
directory-Cognizance taken on a police report vitiated by a
breach of mandatory provisions -Legal effect thereof.
HEADNOTE:
Held, that s. 5(4) and proviso to s. 3 of the Prevention of
Corruption Act, 1947 (II of 1947) and the corresponding s.
5-A of the Prevention of Corruption (Second Amendment) Act,
1952 (LIX of 1952) are mandatory and not directory and that
an investigation conducted in violation thereof is illegal.
If cognizance is in fact taken on a police report in breach
of a mandatory provision relating to investigation, the
results which follow cannot be set aside unless the
illegality in the investigation can be shown to have brought
about a miscarriage of justice.
It is well-settled that an illegality committed in the
course of an investigation does not affect the competence
and the jurisdiction of the court for trial and where
cognizance of the case has in fact been taken and the case
has proceeded to termination the invalidity of the preceding
investigation does not vitiate the result unless miscarriage
of justice has been caused thereby
When any breach of the mandatory provisions relating to
investigation is brought to the notice of the Court at an
early stage of the trial the Court will have to consider the
nature and extent of the violation and pass appropriate
orders for such reinvestigation as may be called for, wholly
or partly, and by such officer as it considers appropriate
with reference to the requirements of s. 5-A of the
Prevention of Corruption (Second Amendment) Act, 1952.
Liverpool Borough Bank v. Turner ([1861] 30 L. J. Ch. 379),
Prabhu v. Emperor (A.I.R. 1944 P.C. 73) and Lumbhardar
Zutshi v. The King (A.I.R. 1950 P.C. 26), referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 95 to
97 and 106 of 1954.
1151
Appeal by Special Leave from the Judgment and Order dated
the 24th August 1953 of the High Court of Judicature for the
State of Punjab (Circuit Bench, Delhi) in Criminal Revision
Nos. 109-D, 122-D and 123-D of 1953 arising out of the
Judgment and Order dated the 25th May 1953 of the Court of
Special Judge,Delhi, in Corruption Case No. 14 of 1954; from
the Judgment and Order dated the 27th August 1954 of the
High Court of Judicature for the State of Punjab (Circuit
Bench, Delhi) in Criminal Miscellaneous No. 131-D of 1954.
H. J. Umrigar and Rajinder Narain, for appellant No. 1.
C. K. Daphtary, Solicitor-General of India (G. N. Joshi,
P. A. Mehta and P. G. Gokhale, with him), for the
respondent.
1954. December 14. The Judgment of the Court was delivered
by
JAGANNADHADAS J.-These are appeals by special leave against
the orders of the Punjab High Court made in exercise of
revisional jurisdiction, reversing the orders of the Special
Judge, Delhi, quashing certain criminal proceedings pending
before himself against these appellants for alleged offences
under the Penal Code and the Prevention of Corruption Act,
1947. The Special Judge quashed the proceedings on the
ground that the investigations on the basis of which the
appellants were being prosecuted were in contravention of
the provisions of sub-section (4) of section 5 of the
Prevention of Corruption Act, 1947, and hence illegal. In
Appeal No. 95 of 1954 the appellants are two persons by name
H.N. Risbud and Indar Singh. In Appeals No. 96 and 97 of
1954 H.N. Risbud above mentioned is the sole appellant.
These appeals raise a common question of law and are dealt
with together. The appellant Risbud was the Assistant
Development Officer (Steel) in the office of the
Directorate-General, Ministry of Industry and Supply,
Government of India and the appellant Indar Singh was the
Assistant Project Section Officer (Steel) in the office of
the Direc-
1152
torate-General, Ministry of Industry and Supply, Government
of India. There appear to be a number of prosecutions
pending against them before the Special Judge, Delhi,
appointed under the Criminal Law Amendment Act., 1952 (Act
XLVI of 1952). We are concerned in these appeals with Cases
Nos. 12,13 and 14 of 1953. Appeals Nos. 95, 96 and 97 arise
respectively out of them. The cases against these
appellants are that they along with some others entered into
criminal conspiracies to obtain for themselves or for others
iron and steel materials in the name of certain bogus firms
and that they actually obtained quota certificates, on the
strength of which some of the members of the conspiracy took
delivery of quantities of iron and steel from the stock-
holders of these articles. The charges, therefore, under
which the various accused, including the appellants, are
being prosecuted are under section 120-B of the Indian Penal
Code, section 420 of the Indian Penal Code and section 7 of
the Essential Supplies (Temporary Powers) Act, 1946. In
respect of such of these accused as are public servants,
there are also charges under section 5(2) of the Prevention
of Corruption Act, 1947.
Under section 5(4) of the Prevention of Corruption Act,
1947, a police officer below the rank of a Deputy
Superintendent of Police shall not investigate any offence
punishable under sub-section (2) of section 5 without the
order of a Magistrate of the First Class. The first
information reports in these cases were laid in April and
June, 1949, but permission of the Magistrate, for
investigation as against the public servants concerned, by a
police officer of a rank lower than a Deputy Superintendent
of Police, was given in March and April, 1951. The charge-
sheets in all these cases were filed by such officers in
August and November, 1951, i.e. subsequent to. the date on
which permission as above was given. But admittedly the
investigation was entirely or mostly completed in between
the dates when the first information was laid and the
permission to investigate by an officer of a lower rank was
accorded. It appears from the evidence taken in this behalf
that such investigation was con-
1153
ducted not by any Deputy Superintendent of Police but by
officers of lower rank and that after the permission was
accorded little or no further investigation was made. The
question, therefore, that has been raised is, that the
proceedings by way of trial initiated on such charge-sheets
are illegal and require to be quashed.
To appreciate the argument it is necessary to notice the
relevant sections of the Prevention of Corruption Act, 1947
(Act II of 1947) (hereinafter referred to as the Act.
Section 3 of the Act provides that offences punishable under
section 161 or 165 of the Indian Penal Code shall be deemed
to be cognizable offences. Section 4 enacts a special rule
of evidence against persons accused of offences under
section 161 or 165 of the Indian Penal Code, throwing the
burden of proof on the accused. Broadly stated, this
section provides that if it is proved against an accused
that lie has accepted or obtained gratification other than
legal remuneration, it shall be presumed against him that
this was so accepted or obtained as a motive or reward.,
such as is mentioned in section 161 of the Indian Penal
Code. Sub-sections (1) and (2) of section 5 create a new
offence of “criminal misconduct in discharge of official
duty” by a public servant punishable with imprisonment for a
term of seven years or fine or both. Sub-section (3)
thereof enacts a new rule of evidence as against a person
accused of the commission of offences under section 5(1) and
(2). That rule, broadly stated,. is that when a person so
accused, or any other person on his behalf, is in possession
of pecuniary resources or property disproportionate to the
known sources of his income and for which he cannot
satisfactorily account, the Court shall presume him to be
guilty of criminal misconduct unless he can displace that
presumption by evidence. The offence of criminal misconduct
which has been created by the Act, it will be seen, is in
itself a cognizable offence, having regard to item 2 of the
last portion of Schedule 11 of the Code of Criminal
Procedure under the bead “offences against the other laws”.
In the normal course, therefore, an investi-
1154
gation into the offence of criminal misconduct under section
5(2) of the Act and an investigation into the offence under
sections 161 and 165 of the Indian Penal Code which have
been made cognizable by section 3 of the Act would have to
be made by an officer incharge of a police station and no
order of any Magistrate in this behalf would be required.
But the proviso to section 3 as well as sub-section (4) of
section 5 of the Act specifically provide that “a police
officer below the rank of a Deputy Superintendent of Police
shall not investigate any such offence without the order of
a Magistrate of the First Class or make any arrest there for
without a warrant”. It may be mentioned that this Act was
amended by Act LIX of 1952. The above mentioned proviso to
section 3 as well as sub-section (4) of section 5 have been
thereby omitted and substituted by section 5-A, the relevant
portion of which may be taken to be as follows:
“Notwithstanding anything contained in the Code of Criminal
Procedure, no police officer below the rank of a Deputy
Superintendent of Police (elsewhere than in the presidency
towns of Calcutta, Madras and Bombay) shall investigate any
offence punishable under sections 161, 165 or 165-A of the
Indian Penal Code or under section 5(2) of this Act without
the order of a Magistrate of the First Class”.
This amendment makes no difference. In any case the
investigation in these cases having taken place prior to the
amendment, what is relevant is section 5(4) as it stood
before the amendment. It may also be mentioned that in 1952
there was enacted the Criminal Law Amendment Act, 1952 (Act
XLVI of 1952) which provided for the appointment of Special
Judges to try offences under sections 161, 165 and 165-A of
the Indian Penal Code and under sub-section (2) of section 5
of the Act such offences were made triable only by such
Special Judges. Provision was also made that all pending
cases relating to such offences shall be forwarded for trial
to the Special Judge. That is how the present cases are all
now before the Special Judge of Delhi appointed under this
Act.
On the arguments urged before us two points arise
1155
for consideration. (1) Is the provision of the Prevention of
Corruption Act, 1947, enacting that the investigation into
the offences specified therein shall not be’ conducted by
any police officer of a rank lower than a Deputy
Superintendent of Police without the specific order of a
Magistrate, directory or mandatory. (2) Is the trial
following upon an investigation in contravention of this
provision illegal.
To determine the first question it is necessary to consider
carefully both the language and scope of the section and the
policy underlying it. As has been pointed out by Lord
Campbell in Liverpool Borough Bank v. Turner(1), “there is
no universal rule to aid in determining whether mandatory
enactments shall be considered directory only or obligatory
with an implied nullification for disobedience. It is the
duty of the Court to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the
statute to be construed”. (See Craies on Statute Law, page
242, Fifth Edition). The Code of Criminal Procedure
provides not merely for judicial enquiry into or trial of
alleged offences but also for prior investigation thereof.
Section 5 of the Code shows that all offences “shall be
investigated, inquired into, tried and otherwise dealt with
in accordance with the Code” (except in so far as any
special enactment may provide otherwise). For the purposes
of investigation offences are divided into two categories
‘cognizable’ and ‘non-cognizable’. When information of the
commission of a cognizable offence is received or such
commission is suspected, the appropriate police officer has
the authority to enter on the investigation of the same
(unless it appears to him that there is no sufficient
ground). But where the information relates to a non-
cognizable offence, he shall not investigate it without the
order of a competent Magistrate. Thus it may be seen that
according to the scheme of the Code, investigation is a
normal preliminary to an accused being put up for trial for
a cognizable offence (except when the Magistrate takes
cognizance other-
(1) [1861] 30 L.J. Ch 879. 148
1156
wise than on a police report in which case he has the power
under section 202 of the Code to order investigation if he
thinks fit). Therefore, it is clear that when the
Legislature made the offences in the Act cognizable, prior
investigation by the appropriate police officer was
contemplated as the normal preliminary to the trial in
respect of such offences under the Act. In order to
ascertain the scope of and the reason for requiring such
investigation to be conducted by an officer of high rank
(except when otherwise permitted by a Magistrate), it is
useful to consider what “investigation” under the Code
comprises. Investigation usually starts on information
relating to the commission of an offence given to an officer
in charge of a police station and recorded under section 154
of the Code. If from information so received or otherwise,
the officer in charge of the police station has reason to
suspect the commission of an offence, he or some other
subordinate officer deputed by him, has to proceed to the
spot to investigate the facts and circumstances of the case
and if necessary to take measures for the discovery and
arrest of the offender. Thus investigation primarily
consists in the ascertainment of the facts and circumstances
of the case. By definition, it includes “all the
proceedings under the Code for the collection of evidence
conducted by a police officer”. For the above purposes, the
investigating officer is given the power to require before
himself the attendance of any person appearing to be
acquainted with the circumstances of the case. He has also
the authority to examine such person orally either by
himself or by a duly authorised deputy. The officer
examining any person in the course of investigation may
reduce his statement into writing and such writing is
available, in the trial that may follow, for use in the
manner provided in this behalf in section 162. Under
section 155 the officer in charge of a police station has
the power of making a search in any place for the seizure of
anything believed to be -necessary for the purpose of the
investigation. The search has to be conducted by such
officer in person. A subordinate officer may be deputed by
him for the
1157
purpose only for reasons to be recorded in writing if he is
unable to conduct the search in person and there is no other
competent officer available. The investigating officer has
also the power to arrest the person or persons suspected of
the commission of the offence under section 54 of the Code.
A police officer making an investigation is enjoined to
enter his proceedings in a diary from day-to-day. Where
such investigation cannot be completed within the period of
24 hours and the accused is in custody he is enjoined also
to send a copy of the entries in the diary to the Magistrate
concerned. It is important to notice that where the
investigation is conducted not by the officer in charge of
the police station but by a subordinate officer (by virtue
of one or other of the provisions enabling him to depute
such subordinate officer for any of the steps in the
investigation) such subordinate officer is to report the
result of the investigation to the officer in charge of the
police station. If, upon the completion of the
investigation it appears to the officer in charge of the
police station that there is no sufficient evidence or
reasonable ground, he may decide to release the suspected
accused, if in custody, on his executing a bond. If,
however, it appears to him that there is sufficient evidence
or reasonable ground, to place the accused on trial, he is
to take the necessary steps therefore under section 170 of
the Code. In either case, on the completion of the in-
vestigation he has to submit a report to the Magistrate
under section 173 of the Code in the prescribed form
furnishing various details. Thus, under the Code
investigation consists generally of the following steps:(1)
Proceeding to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and arrest of
the suspected offender, (4) Collection of evidence relating
to the commission of the offence which may consist of (a)
the examination of various persons (including the accused)
and the reduction of their statements into writing, if the
officer thinks fit, (b) the search of places of seizure of
things considered necessary for the investigation and to be
produced at the trial, and (5) Formation of the opi-
1158
nion as to whether on the material collected there is a case
to place the accused before a Magistrate for trial and if so
taking the necessary steps for the same by the filing of a
charge-sheet under section 173. The scheme of the Code also
shows that while it is permissible for an officer in charge
of a police station to depute some subordinate officer to
conduct some of these steps in the investigation, the
responsibility for every one of these steps is that of the
person in the situation of the officer in charge of the
police station, it having been clearly provided in section
168 that when a subordinate officer makes an investigation
he should report the result to the officer in charge of the
police station. It is also clear that the final step in the
investigation, viz. the formation of the opinion as to
whether or not there is a case to place the accused on trial
is to be that of the officer in charge of the police
station. There is no provision permitting delegation
thereof but only a provision entitling superior officers to
supervise or participate under section 551.
It is in the light of this scheme of the Code that the scope
of a provision like section 5(4) of the Act has to be
judged. When such a statutory provision enjoins that the
investigation shall be made by a police officer of not less
than a certain rank, unless specifically empowered by a
Magistrate in that behalf, notwithstanding anything to the
contrary in the Code of Criminal Procedure, it is clearly
implicit therein that the investigation (in the absence of
such permission) should be conducted by the officer of the
appropriate rank. This is not to say that every one of the
steps in the investigation has to be done by him in person
or that he cannot take the assistance of deputies to the
extent permitted by the Code to an officer in charge of a
police station conducting an investigation or that he is
bound to go through each of these steps in every case. When
the Legislature has enacted in emphatic terms such a
provision it is clear that it had a definite policy behind
it. To appreciate that policy it is relevant to observe
that under the Code of Criminal Procedure most of the
offences relating to public
1159
servants as such, are non-cognizable. A cursory perusal of
Schedule II of the Code of Criminal Procedure discloses that
almost all the offences which may be alleged to have been
committed by a public servant, fall within two chapters,
Chapter IX “Offences by, or relating to, public servants”,
and Chapter XI “Offences against public justice” and that
each one of them is non-cognizable. (Vide entries in
Schedule II under sections 161 to 169, 217 to 233, 225-A as
also 128 and 129). The underlying policy in making these
offences by public servants non-cognizable appears to be
that public servants who have to discharge their functions-
often enough in difficult circumstancesshould not be exposed
to the harassment of investigation against them on
information levelled, possibly, by persons affected by their
official acts, unless a Magistrate is satisfied that an
investigation is called for, and on such satisfaction
authorises the same. This is meant to ensure the diligent
discharge of their official functions by public servants,
without fear or favour. When, therefore, the Legislature
thought fit to remove the protection from the public
servants, in so far as it relates to the investigation of
the offences of corruption comprised in the Act, by making
them cognizance, it may be presumed that it was considered
necessary to provide a substituted safeguard from undue
harassment by requiring that the investigation is to be
conducted normally by a police officer of a designated high
rank. Having regard therefore to the peremptory language of
sub-section (4) of section 5 of the Act as well as to the
policy apparently underlying it is reasonably clear that the
said provision must be taken to be mandatory.
It has been suggested by the learned SolicitorGeneral in his
arguments that the consideration as to the policy would
indicate, if at all, only the necessity for the charge-
sheets in such a case having to be filed by the authorised
officer, after coming to his own conclusion as to whether or
not there is a case to place the accused on trial before the
Court, on a. perusal of the material previously collected,
and that at best this might extend also to the requirement
of arrest of the
1160
concerned public servant by an officer of the appropriate
rank. There is, however, no reason to think that the policy
comprehends within its scope only some and not all the steps
involved in the process of investigation which, according to
the scheme of the Act, have to be conducted by the
appropriate investigating officer either directly or when
permissible through deputies, but on his responsibility. It
is to be borne in mind that the Act creates two new rules of
evidence one under section 4 and the other under section
5(3), of an exceptional nature and contrary to the accepted
canons of criminal jurisprudence. It may be of considerable
importance to the accused that the evidence in this behalf
is collected under the responsibility of the authorised and
competent investigating officer or is at least such for
which such officer is prepared to take responsibility. It
is true that the result of a trial in Court depends on the
actual evidence in the case but it cannot be posited that
the higher rank and the consequent greater responsibility
and experience of a police officer has absolutely no
relation to the nature and quality of evidence collected
during investigation and to be subsequently given in Court.
A number of decisions of the various High Courts have been
cited before us bearing on the questions under
consideration. We have also perused the recent unreported
Full Bench judgment of the Punjab High Court(1). These
disclose a conflict of opinion. It is sufficient to notice
one argument based on section 156(2) of the Code on which
reliance has been placed in some of these decisions in
support of the view that section 5(4) of the Act is
directory and not mandatory. Section 156 of the Code of
Criminal Procedure is in the following terms:
“156(1). Any officer in charge of a police-station may,
without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the
local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter
XV relating to the place of inquiry or trial.
(1) Criminal Appeals Nos. 25-D and 434 of 1953 disposed of
on 3rd May,1954.
1161
(2). No proceeding of a police-officer in any such case
shall at any stage be called in question on the ground that
the case was one which such officer was not empowered under
this section to investigate.
(3). Any Magistrate empowered under section 190 may order
such an investigation as above-mentioned”.
The argument advanced is that section 5(4) and proviso to
section 3 of the Act are in substance and in effect in the
nature of an amendment of or proviso to section 156(1) of
the Code of Criminal Procedure. In this view, it was
suggested that section 156(2) which cures the irregularity
of an investigation by a person not empowered is attracted
to section 5(4) and proviso to section 3 of the 1947 Act and
section 5-A of the 1952 Act. With respect, the learned
Judges appear to have overlooked the phrase “under this sec-
tion” which is to be found in sub-section (2) of section 156
of the Code of Criminal Procedure. What that sub-section
cures is investigation by an officer not empowered under
that section, i.e. with reference to sub-sections (1) and
(3) thereof. Sub-section (1) of section 156 is a provision
empowering an officer in charge of a police station to
investigate a cognizable case without the order of a
Magistrate and delimiting his power to the investigation of
such cases within a certain local jurisdiction. It is the
violation of this provision that is cured under sub-section
(2). Obviously sub-section (2) of section 156 cannot cure
the violation of any other specific statutory provision
prohibiting investigation by an officer of a lower rank than
a Deputy Superintendent of Police unless specifically
authorised. But apart from the implication of the language
of section 156(2), it is not permissible to read the
emphatic negative language of sub-section (4) of section 5
of the Act or of the proviso to section 3 of the Act, as
being merely in the nature of an amendment of or a proviso
to sub-section (1) of section 156 of the Code of Criminal
Procedure. Some of the learned Judges of the High Courts
have called in aid sub-section (2) of section 561 of the
Code of Criminal Procedure by way of analogy. It
1162
is difficult to see how this analogy helps unless the said
sub-section is also to be assumed as directory and not
mandatory which certainly is not obvious on the wording
thereof We are, therefore, clear in our opinion that section
5(4) and proviso to section 3 of the Act and the
corresponding section 5-A of Act LIX of 1952 are mandatory
and not directory and that the investigation conducted in
violation thereof bears the stamp of illegality.
The question then requires to be considered whether and to
what extent the trial which follows such investigation is.
vitiated. Now, trial follows cognizance and cognizance is
preceded by investigation. This is undoubtedly the basic
scheme of the Code in respect of cognizable cases. But it
does not necessarily follow that an invalid investigation
nullifies the cognizance or trial based thereon. Here we
are not concerned with the effect of the breach of a
mandatory provision regulating the competence or procedure
of the Court as regards cognizance or trial. It is only
with reference to such a breach that the question as to
whether it constitutes an illegality vitiating the
proceedings or a mere irregularity arises. A defect or
illegality in investigation, however serious, has no direct
bearing on the competence or the procedure relating to
cognizance or trial. No doubt a police report which results
from an investigation is provided in section 190 of the Code
of Criminal Procedure as the material on which cognizance is
taken. But it cannot be maintained that a valid and legal
police report is the foundation of the jurisdiction of the
Court to take cognizance. Section 190 of the Code of
Criminal Procedure is one out of a group of sections under
the beading “Conditions requisite for initiation of
proceedings. The language of this section is in marked
contrast with that of the other sections of the group under
the same heading, i.e. sections 193 and 195 to 199. These
latter sections regulate the competence of the Court and bar
its jurisdiction in certain cases excepting in compliance
therewith. But section 190 does not. While no doubt, in
one sense, clauses (a), (b) and (c) of section 190(1) are
conditions requisite for taking of cogni-
1163
zance, it is not possible to say that cognizance on an
invalid police report is prohibited and is therefore a
nullity. Such an invalid report may still fall either under
clause (a) or (b) of section 190(1), (whether it is the one
or the other we need not pause to consider) and in any case
cognizance so taken is only in the nature of error in a
proceeding antecedent to the trial. To such a situation
section 537 of the Code of Criminal Procedure which is in
the following terms is attracted:
“Subject to the provisions herein before contained, no
finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered on appeal or
revision on account of any error, omission or irregularity
in the complaint, summons, warrant, charge, proclamation,
order, judgment or other proceedings before or during trial
or in any enquiry or other proceedings under this Code,
unless such error, omission or irregularity, has in fact
occasioned a failure of justice”.
If, therefore, cognizance is in fact taken, on a police
report vitiated by the breach of a mandatory provision
relating to investigation, there can be no doubt that the
result of the trial which follows it cannot be set aside
unless the illegality in the investigation can be shown to
have brought about a miscarriage of justice. That an
illegality committed in the course of investigation does not
affect the competence and the jurisdiction of the Court for
trial is well settled as appears from the cases in Prabhu v.
Emperor(1) and Lumbhardar Zutshi v. The King(2). These no
doubt relate to the illegality of arrest in the course of
investigation while we are concerned in the present cases
with the illegality with reference to the machinery for the
collection of the evidence. This distinction may have a
bearing on the question of prejudice or miscarriage of
justice, but both the cases clearly show that invalidity of
the investigation has no relation to the competence of the
Court. We are, therefore, clearly, also, of the opinion
that where the cognizance of the case has in fact been taken
and the case has proceeded to termi-
(1) A.I.R. 1944 P.C. 73. 149
(2) A.I.R. 1950 P C. 26,
1164
nation., the invalidity of the precedent investigation does
not vitiate the result, unless miscarriage of justice has
been caused thereby.
It does not follow, however, that the invalidity of the
investigation is to be completely ignored by the Court
during trial. When the breach of such a mandatory provision
is brought to the knowledge of the Court at a sufficiently
early stage, the Court, while not declining cognizance, will
have to take the necessary steps to get the illegality cured
and the defect rectified, by ordering such reinvestigation
as the circumstances of an individual case may call for.
Such a course is not altogether outside the contemplation of
the scheme of the Code as appears from section 202 under
which a Magistrate taking cognizance on a complaint can
order investigation by the police. Nor can it be said that
the adoption of such a course is outside the scope of the
inherent powers of the Special Judge, who for purposes of
procedure at the trial is virtually in the position of a
Magistrate trying a warrant case. When the attention of the
Court is called to such an illegality at a very early stage
it would not be fair to the accused not to obviate the
prejudice that may have been caused thereby, by appropriate
orders, at that stage but to leave him to the ultimate
remedy of waiting till the conclusion of the trial and of
discharging the somewhat difficult burden under section 537
of the Code of Criminal Procedure of making out that such an
error has in fact occasioned a failure of justice. It is
relevant in this context to observe that even if the trial
had proceeded to conclusion and the accused had to make out
that there was in fact a failure of justice as the result of
such an error, explanation to section 537 of the Code of
Criminal Procedure indicates that the fact of the objection
having been raised at an early stage of the proceeding is a
pertinent factor. To ignore the breach in such a situation
when brought to the notice of the Court would be virtually
to make a dead letter of the peremptory provision which has
been enacted on grounds of public policy for the benefit of
such an accused. It is true that the peremptory pro-
1165
vision itself allows an officer of a lower rank to make the
investigation if permitted by the Magistrate. But this is
not any indication by the Legislature that an investigation
by an officer of a lower rank without such permission cannot
be said to cause prejudice. When a Magistrate is approached
for granting such permission he is expected to satisfy
himself that there are good and sufficient reasons for
authorising an officer of a lower rank to conduct the
investigation. The granting of such permission is not to be
treated by a Magistrate as a mere matter of routine but it
is an exercise of his judicial discretion having regard to
the policy underlying it. In our opinion, therefore, when
such a breach is brought to the notice of the Court at an
early stage of the trial the Court have to consider the
nature and extent of the violation and pass appropriate
orders for such reinvestigation as may be called for, wholly
or partly, and by such officer as it considers appropriate
with reference to the requirements of section 5-A of the
Act. It is in the light of the above considerations that
the validity or otherwise of the objection as to the viola-
tion of section 5(4) of the Act has to be decided and the
course to be adopted in these proceedings, determined.
The learned Special Judge before whom the objection as to
the violation of section 5(4) of the Act was taken took
evidence as to the actual course of the investigation in
these cases. In the cases out of which Criminal Appeals
Nos. 96 and 97 of 1954 arise, the first information report
which in each case was filed on 29-6-1949 was in terms on
the basis of a complaint filed by the Director of
Administration and Co-ordination,, Directorate of Industry
and Supply. This disclosed information constituting
offences including that under section 5(2) of the Act. The
cases were hence registered under various sections including
section 5(2), of the Act. The investigation that was called
for on the basis of such a first information report was to
be by an officer contemplated -under section 5(4) of the
Act. The charge-sheets in these two cases were filed on 11-
8-1951 by a Sub-Inspector
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of Police, R. G. Gulabani and it appears that he applied to
the Magistrate for permission to investigate into these
cases on 26-3-1951. His evidence shows that so far as the
case relating to Criminal Appeal No. 97 of 1954 is
concerned, he did not make any investigation at all
excepting to put up the chargesheet. All the prior stages
of the investigation were conducted by a number of other
officers of the rank of Inspector of Police or Sub-Inspector
of Police and none of them had taken the requisite
permission of the Magistrate. In the case out of which
Criminal Appeal No. 96 of 1954 arises the evidence of R. G.
Gulabani shows that he took up the investigation after he
obtained permission and partly investigated it thereafter
but that the major part of the investigation was done by a
number of other officers who were all below the rank of
Deputy Superintendent of Police without having obtained from
the Magistrate the requisite sanction therefor. Both these
are cases of clear violation of the mandatory provisions of
section 5(4) of the Act. In the view we have taken of the
effect of such violation it becomes necessary for the
Special Judge to reconsider the course to be adopted in
these two cases.
As regards the case out of which Criminal Appeal No. 95 of
1954 arises it is to be noticed that the first information
report which was filed on 30-4-1949 disclosed offences only
against Messrs Patiala Oil Mills, Dev Nagar, Delhi, and
others, and not as against any public servant. The case
that was registered was accordingly in respect of offences
punishable under section 420 of the Indian Penal Code and
section 6 of the Essential Supplies (Temporary) Powers Act,
1946, and not under any offence comprised within the Pre-
Vention of Corruption Act. The investigation proceeded,
therefore, in the normal course. The evidence shows that
the investigation in this case was started on 2-5-1949 by
Inspector Harbans Singh and that on 11-7-1949 he handed over
the investigation to Inspector Balbir Singh. Since then it
was only Balbir Singh that made all the investigation and it
appears from his evidence that he examined as many
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as 25 witnesses in the case. It appears further that in the
course of this investigation it was found that, the two
appellants and another public servant were liable to be
prosecuted under section 5(2) of the Act. Application was
then made to the Magistrate by Balbir Singh for sanction
being accorded to him under section 5(4) of the Act and the
same was given on 20-3-1951. The charge-sheet was filed by
Balbir Singh on 15-11-1951. He admits that all the investi-
gation by him excepting the filing of charge-sheet was prior
to the obtaining the sanction of the Magistrate for
investigation. But since the investigation prior to the
sanction was with reference to a case registered under
section 420 of the Indian Penal Code and section 6 of the
Essential Supplies (Temporary) Powers Act, 1946, that was
perfectly valid. It is only when the material so collected
disclosed the commission of an offence under section 5(2) of
the Act by public servants, that any question of taking the
sanction of the Magistrate for the investigation arose. In
such a situation the continuance of such portion of the
investigation as remained, as against the public servants
concerned by the same officer after obtaining the permission
of the Magistrate was reasonable and legitimate. We are,
therefore, of the opinion that there has been no such defect
in the investigation in this case as to call for
interference.
In the result, therefore, Criminal Appeal No. 95 of 1954 is
dismissed. Criminal Appeals Nos.96 and 97 of 1954 are
allowed with the direction that the Special Judge will take
back the two cases out of which these appeals arose on to
his file and pass appropriate orders after reconsideration
in the light of this judgment.
Criminal Appeal No. 106 of 1954.
This is an appeal by special leave against a common order of
the High Court of Punjab relating to Cases Nos. 19 to 25 of
1953 before the Special Judge, Delhi. It raises the same
questions which have been disposed of by our judgment in
Criminal Appeals Nos. 95 to 97 of 1954. Since the appeal
is, in form, one
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against the order of the High Court refusing to grant stay
of the proceedings then pending, it is sufficient to dismiss
this appeal with the observation that it will be open to the
appellants to raise , the objections before the Special
Judge.