# D. HEALY v. STATE OF UTTAR PRADESH

- **Citation:** [1969] 2 S.C.R. 948
- **Court:** Supreme Court of India
- **Decided:** 1968-11-21
- **Case number:** Criminal Appeal No. 138 of 1966
- **Bench:** J. C. Shah, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-healy-v-state-of-uttar-pradesh-4812
- **Pages:** 11

## Headnote

A
B
Prevention of Corruption Act 1947 s. 6(c)-Prosecution of the Rail·
way employee for offences under s. 161 I.P.C. and s. 5(l)(d) read with
s. 5(2)-Sanction for prosecution at first obtained from Deputy Chief
Commercial Superintendent-Proceedings quashed at Public Prosecutor's
request-Thereafter fresh sanction for prosecution obtained from
Chief
Commercial Superintendent and fresh proceedings commenced-If quash·
ing of first proceeding amounted to acquittal and therefore conviction in·
C
valid.
Section 5A(l) (d)--0/jences investigated by officer below the rank
of Deputy Superintendent of Police by order of Additional District Magistrate-If investigation valid-S. 356 ss. 356(1) and 537 Criminal Proce·
dure Code Witnesses recording evidence in presence of one Judge who
died-Second Judge subscribing
signatures to
record
of evidenceD
Whether such non-compliance with s. 356(1) vitiated trial or mere ir·
regularity curable under s. 537.
The appellant, who was a Platform Inspector employed by the North
Eastern Railway was prosecuted for offences under s. 161 I.P.C. and
s. 5(1)(d) read with s. 5(2) of the Pre1-ention of Corruption Act, 1947
fdr accepting a bribe from another subordinate railway employee. The
prosecution was commenced after obtaining the sanction of the Deputy
Chief Commercial Superintendent but it was discovered during the trial
lhat this officer was not competent to sanction the appellant's prosecu'
lion. The trial Judge, at the request of the Public Prosecutor, quashed
the proceedings. Thereafter sanction was obtained from the Chief Com·
mercial Superintendent and in fresh proceedings for the same offences,
the appellant was convicted and the order of conviction was confirmed
in appeal by the High Court.
In appeal to this Court it was contended on behalf of the appellant :
(i) that in view of the provisioas of cl. (i) of r. 1704 of the Indi'an
Railway Establishment Code, the Deputy Chief Commercial Superinten·
dent had the power to remove the appellant from service, and was com:
petent to grant sanction under s. 6(c) of the Prevention of Corruption
Act for his prosecution; the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid
and the order passed by the Special Judge
quashing the
proceeding
amounted in law to an order of acquittal so that the appellant could not
again be tried for the same offence; (ii) that in relation to the evidence
of two witnesses for the prosecution, the provisions of s. 356 Cr. P.C.
had not been complied with in that, the evidence of these witnesses was
recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office, after the death of the
former; and (iii) that the investigation was made by an officer who. in
view of the provisions of s. 5A(I )(d) of the Prevention of Corruption
Act, 1947 had no authority to investigate the offence as he was a Police
Officer below the rank of a Deputy Superintendent of Police.
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L. D. HEALY v. U.P. STATE (Shah, J.)
949
HELD : Dismissing the appeal,
(i) The powers exercisable under r. 1704 (i) being subject to cl. (c)
o~ r. 1705 of the Indian Railway Establishment Code and also to the provisions of Art. 311 of the Constitution in the present case the
Deputy
Chief Commercial Superintendent could not remove the appellant from
service and there~ore had no power to sancdon his prosecution. The trial
Judge who had taken cognizance of the case on a sanction given by the
Deputy Chief Commercial Superintendent was
incompetent to try
the
case, and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence. [952 C-E]
(ii) There was irregularity in maintaining the recotd of the evidence
at the trial because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence, and
on that account there was non-co

## Text

948
[,. D. HEALY
v.
STATE OF UTTAR PRADESH
November 21, 1968
[J. C. SHAH AND A. N. GROVER, JJ.]
A
B
Prevention of Corruption Act 1947 s. 6(c)-Prosecution of the Rail·
way employee for offences under s. 161 I.P.C. and s. 5(l)(d) read with
s. 5(2)-Sanction for prosecution at first obtained from Deputy Chief
Commercial Superintendent-Proceedings quashed at Public Prosecutor's
request-Thereafter fresh sanction for prosecution obtained from
Chief
Commercial Superintendent and fresh proceedings commenced-If quash·
ing of first proceeding amounted to acquittal and therefore conviction in·
C
valid.
Section 5A(l) (d)--0/jences investigated by officer below the rank
of Deputy Superintendent of Police by order of Additional District Magistrate-If investigation valid-S. 356 ss. 356(1) and 537 Criminal Proce·
dure Code Witnesses recording evidence in presence of one Judge who
died-Second Judge subscribing
signatures to
record
of evidenceD
Whether such non-compliance with s. 356(1) vitiated trial or mere ir·
regularity curable under s. 537.
The appellant, who was a Platform Inspector employed by the North
Eastern Railway was prosecuted for offences under s. 161 I.P.C. and
s. 5(1)(d) read with s. 5(2) of the Pre1-ention of Corruption Act, 1947
fdr accepting a bribe from another subordinate railway employee. The
prosecution was commenced after obtaining the sanction of the Deputy
Chief Commercial Superintendent but it was discovered during the trial
lhat this officer was not competent to sanction the appellant's prosecu'
lion. The trial Judge, at the request of the Public Prosecutor, quashed
the proceedings. Thereafter sanction was obtained from the Chief Com·
mercial Superintendent and in fresh proceedings for the same offences,
the appellant was convicted and the order of conviction was confirmed
in appeal by the High Court.
In appeal to this Court it was contended on behalf of the appellant :
(i) that in view of the provisioas of cl. (i) of r. 1704 of the Indi'an
Railway Establishment Code, the Deputy Chief Commercial Superinten·
dent had the power to remove the appellant from service, and was com:
petent to grant sanction under s. 6(c) of the Prevention of Corruption
Act for his prosecution; the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid
and the order passed by the Special Judge
quashing the
proceeding
amounted in law to an order of acquittal so that the appellant could not
again be tried for the same offence; (ii) that in relation to the evidence
of two witnesses for the prosecution, the provisions of s. 356 Cr. P.C.
had not been complied with in that, the evidence of these witnesses was
recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office, after the death of the
former; and (iii) that the investigation was made by an officer who. in
view of the provisions of s. 5A(I )(d) of the Prevention of Corruption
Act, 1947 had no authority to investigate the offence as he was a Police
Officer below the rank of a Deputy Superintendent of Police.
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L. D. HEALY v. U.P. STATE (Shah, J.)
949
HELD : Dismissing the appeal,
(i) The powers exercisable under r. 1704 (i) being subject to cl. (c)
o~ r. 1705 of the Indian Railway Establishment Code and also to the provisions of Art. 311 of the Constitution in the present case the
Deputy
Chief Commercial Superintendent could not remove the appellant from
service and there~ore had no power to sancdon his prosecution. The trial
Judge who had taken cognizance of the case on a sanction given by the
Deputy Chief Commercial Superintendent was
incompetent to try
the
case, and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence. [952 C-E]
(ii) There was irregularity in maintaining the recotd of the evidence
at the trial because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence, and
on that account there was non-compliance with the provisions of s. 356(1)
Cr.P.C., but this was an irregularity curable under s. 537 Cr.P.C. and
did not vitiate the trial. [955 B. El
The object of the provisions in the Code relating to the recording of
evidence is to ensure that a correct record is maintained of what is said
in court by witnesses, and the record may be available at a later stage of
the trial and in appeal. If the c-ourt is satisfied that in a given case the
record notwithstanding any departure from
the
provisions
relating to
maintenance of the record is correct the irregularity may be ignored if
no injustice has resulted therefrom. [954 DJ
Liverpool Borough Bank v. Turner, [1861], 30 L.J. Cb. 379, referred
to.
Abdul Rahman v. King Emperor, L.R. 54 I.A. 96, distinguished.
(iii) By s. 5A(l) (d) the legislature has expressly provided that an
officer below the rank of a Deputy Superintendent of Police may conduct
the investigation with the order of a Presidency Magistrate or a Magistrate of the First Class.
In the present case such an order of the Additional District Magistrate who held the office of a First Class Magistrate
was obtained and there was compliance with the provisions of s. 5A(l)(d).
[957 HJ
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
138 of 1966.
Appeal by special leave from the judgment and order dated
March 22, 1966 of the Allahabad High Court, Lucknow Bench
in Criminal Appeal No. 82 of 1965.
S. P. Sinha and M. I. Khowaja, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Shah, J.
The appellant Healy was an employee of the North·
Eastern Railway and was posted in March 1959 as a Platform
Inspector
at Gorakhpur Railway Station.
The appellant
to~d
Ghammoo a sweeper working under him that unless he was paid
a bribe of Rs. 15 Ghammoo would be marked absent. Ghammoo
950
SUPREME COURT REPORTS
[1969) 2 S.C.R.
at first demurred but later agreed to pay the amount demanded
and to give a bottle of liquor, and thereafter made a report to the
R.S.0., Special Police Establishment at Gorakhpur about the de-
. mand Jl!ade by the appellant. Arrangements were made to set a
trap. On March 27, 1959, Ghammoo w~t to the office of the
appellant and paid Rs. 15 in currency notes which had been duly
marked by the Special Police Establishment Officers and half a
bottle of liquor.
The appellant after receiving the currency notes
assured Ghammoo that he "would not be harassed any more."
Thereafter the police officers and the wit;nesses who were watching
the appellant rushed into his office and recovered the currency
notes and the bottle of liquor from him.
The appellant was prosecuted for offences under s. 161 I.P.
Code ands. 5(1){d) read withs. 5(2) oi the Prevention of Corruption Act, 194 7, after obtaining the S<lillCtion of the Deputy
Chief Commercial Superintendent.
It was discovered during the
course of the trial that the Deputy Chief Commercial Superinten•
dent was not competent to sanction the prosecution of the appellant. The Special Judge, at the request of the public prosecutor,
by order dated May 27, 1960, quashed the proceeding.
Thereafter a fresh sanction was obtained from the Chief Commercial
Superintendent, North-Eastem Railway, Gorak:hpur and the proceeding was again started against the appellant on a charge for
offences under s. 161 LP. Code ands. 5(1) (d) read withs. 5(2)
of the Preveintion of Corruption Act, 194 7. The appellant was
convicted by the Special Judge and was sentenced to suffe~ rigorous
• ·imprisonment for two years on each count, the sentences to run
concurrently.
The order was confirmed in appeal by the High
Court of Allahabad.
The appellant has appealed to this Court
with special leave.
The evidence of Ghammoo, and J. K. Mehta and V. P. Chaturvedi--officers of the Special Police Establishment,--and two
panchas Krishna Lal and Gandhi Singh was accepted by the Special Judge and by the High Court, the Special Judge held that the
appellant had under a threat compelled Ghammoo to give him
Rs. 15 and half a bottle of liquor.
The marked currency notes
were fou~ on the person of the appellant when the police officers
rushed into his office immediately after he received the currency
notes from Ghammoo.
The story of the appellant that Ghammoo
had been instrumental in filing a false prosecution due to enmity
was discarded.
His story that the currency notes and the bottle
of liquor were brought by Ghammoo voluntarily and had been
placed on his table without any demand by him was also rejected.
There is therefore clear evidence to establish the case. for the
prosecution that the appellant received a bribe from Ghammoo
as a motive for forbearing to show in the exercise of his official
functions disfavour against Ghammoo.
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L. D. HEALY V. U.P. STATE (Shah, /.)
951
Counsel for the appellant, however, raised three conteintions.
in support of the appeal :
( 1) The trial by the Special Judge was without jurisdiction
because the appellant had been previously tried and had been
acquitted in respect of the same offence. In support of this contention counsel cointended that the sanction given by the Deputy
Chief Commercial Superintendent for prosecuting the appellant
under the Prevention of Corruption Act was a valid sanction, and
the order passed by the Special Judge on May 27, 1960, quash4tg
the proceeding at the request of the public prosecutor amounted
in law to an order o.f acquittal and the appellant could not again
be tried for the same offence.
By virtue of s. 6 ( c) of the Prevention of Corruption Act, 194 7, a Court may take cognizance of an
offence punishable under s. 161 I.P. Code or under s. 5(2) of the
Prevention of Corruption Act in the case of a public servant not
employed in connection with the affairs of the Union or the affairs
of a State, only with the previous sanction of the authority competent to remove him from office.
Cognizance was taken of the
offences for which the appellant was tried at the first trial with
the sanction of the
Deputy Chief Commercial Superintendent.
North-Eastern Railway, Gorakhpur.
On May 27, 1960, the public prosecutor applied for withdrawal of the case of the prosecution on the ground that the sanction was ineffective.
The Special
Judge gr~nted the request and ordered that the proceeding be
quashed. Thereafter a fresh sanction was obtained from the Chief
Commercial Superintendent, North-Eastern Railway, Gorakhpur.
It is contended that the Deputy Chief Commercial Superintendent
was competent to sanction the prosecution of the appellant and
the order quashing the trial operated as an order of acquittal.
The appellant was appointed by the Traffic Manager of the
0.T. Railway in 1947. After the amalgamation of that Railway
with the North-Eastern Railway the office of Traffic Manager was
abolished and the powers of that Office were thereafter exercisable
by the Chief Commercial Superintendent of the North-Eastern
Railway.
Under r. 1705 cl. ( c) of the Indian Railway Establishment Code no railway servant is liable to be removed or dismissed
by an authority lower than that by which he was appointed to the
post held by him substantively.
This rule in substance gives
efiec~ to Art. 311 ( 1) of the Constitution.
Smee the appellant was
appomted by the Traffic Manager of the 0.T. Railway, after amalgamatio~ of that Railway, the power !o remove the appellant could
be exercised by the Chief Commercial Superintendent.
Counsel
for the appellant urged that under cl. (i) of r. 1704 of the Indian
Railway Establishment Code, the authorities specified in columi!l
3 of ~h. I appended to the Rules in Ch. XVII of the State Railway
Estabhshment Code Vol. I, may impose the penalties specified in
column 4 upon the classes of railway servants show.fl in column
952
SUPREME COURT REPORTS .
[1969) 2 S.CR.
. 2 of that Schedule, and Sch. I which occurs in Appendix. ID co!lr
fers upon the Deputy Heads of Department "full powers" of removal from service. Consequently, it was said, the Deputy Chief
Commercial Superintendent had the power to remove the appellant
from service, and was competent to grant sanction uinder s. 6 of
the Prevention of Corruption Act for the prosecution of the appellant, and that the order passed by the Special Judge quashing the
proceeding on May 27, 1960, amounted to an order of acquittal.
But r. 1704 is subject to the provisioμ:is of r. 1705, and by r. 1705
it is expressly provided that a railway servant shall not be removed
or dismissed by an authority lower than that by which he was
appointed to the post held by him substantively.
The powers
exercisable under r. l 704(i) being subject to cl. (c) of r. 1705,
and also to the provisions of Art. 311 of the Constitution, the
Deputy Chief Commercial Superintendent could not remove the
appellaint from service.
It follows therefore that the Deputy Chief
Commercial Superintendent had no power to grant sanction for
prosecution of the appellant, since he was an officer inferior in
rank to the Officer who had appointed the appel,Jant as a railway
servaint.
The Court may take cognizance of an offence against
a public servant for the offences set out in s. 6 of the Prevention
of Corruption Act only after the previous sanction of the specifiecl
authority is obtained.
The Special Judge who had taken cogni·
zance of the. case on a sanction givep by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an
order of acquittal passed by a Court which had no jurisdiction does·
not bar a retrial for the same offence.
It is ulljllbcessary, therefore;
to consider whether the order quashing the proceeding amounted
to an order of acquittal.
(2) The facts necessary to appreciate the second contention
about the irregularity of the procedure followed by the Special
Judge are these: J. K. Mehta and V. P. Chaturvedi were examined
as witnesses for the prosecution before Mr. Fakhrul Hasan, Special
Judge. Their evidence was recorded in accordance with s.
356
Code of Criminal Procedure under supervision of the Special
Judge, and record of the evidence was made in Hindi and an
English memorandum of the evidence was also maintained by. the
Special Judge.
The statements of the witnesses were read over to
them and were signed by them in acknowledgment of their correctness.
But Mr. Fakhrul Hasan died before he could append his
signature thereto.
Before the successor of Mr. Fakhr.ul Hasan •.
J. K. Mehta and V. P. Chaturvedi were recalled a!Ild their evidence
which was previously recorded was read over to them.
They·
confi'llled its correctness.
The Special Judge also offered to
counsel for the appellant opportunity to cross-examine the witnesses, but the offer was declined.
No objection was raised to the
reading over· of the evidence to the witnesses. It was not suggested
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L. D. HEALY V. U.P. STATE (Shah, J.)
953
A
that the witnesses should be re-examined. The Special Judge
thereafter subscribed his sigμature to the record of the statements
of the witnesses, and to the English memoranda of evidence. There
is no suggestion of injustice-actual or possible-arising from the
failure to comply strictly with the statute : it is contended that
failure to observe the letter of the law invalidated the trial.
B
Section 356(1) of the Code of Criminal Procedure provides :
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"In all other trials before Courts of Session and
Magistrates . . . . . . the evidence of each witness shall
be taken down in writing in the language of the Court,
either by the Magistrate or Sessions Judge with his own
hand or from his dictation in open Court or m his presence and hearing and under his personal direction and
superintendence, and the evideince so taken down shall·
be signed by the Magistrate or Sessions Judge ·and shall
form part of the record."
Evidence of the witnesses was recorded in the presence and heariing and the personal direction and superintendence of Mr. Fakhrul Hasan. Mr. Pakhrul Hasan died before he could subscribe
his signature.
It is true that the Legislature has enacted that "the
evidence so taken down shall be signed by the Magistrate or Sessions Judge".
As observed by Lord Campbell in the case of the
Liverpool Borough Bank v. Turner(') :
"No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments
shall be considered directory only or obligatory, with
an implied nullification for disobedience. It is the duty
of Courts of Justice to try to get at the real intention of
the legislature by carefully attending to the whole scope
of the statute to be construed.
........ in each case you must look to the subjectmatter, consider the importance of the provision that
has been disregarded, and the relation of that
provisiqn to the general object intended to be secured
by the Act, and, upon a review of the case in
that
aspect, decide whether the matter is what is called imperative or only directory."
Section 356 deals with the mode of recording evidence.
The
object of the section is to maintain a correct record of the testimony
of the witnesses.
The section occurs in Ch. XXV of the Code,
and deals with the mode of taking aiud recording evidence in inquiries and trials.
To ensure a fair trial it is provided that the evidence shall be recorded in the presence of the accused, or where
his presence is dispensed with- in the presence of his lawyer,
(I) [1861J30 L.J. Ch. 379.
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SUPREME COURT REPORTS
(1969] 2 S.C.R.
(s. 353): in cases tried before the Court of Session, or Magistrates
other than Presidency Magistrates, the evidence shall be taken
down in writing in the language of the Court either in his own
hand by the presiding officer or under his direction in open Court,
or iJll his presence and hearing and under his personal supervision,
and shaH be signed by him, (s. 356) : the evidence shall after
it is completed be read over to each witness, in the presence of
the accused or his lawyer, and it may, if necessary, be corrected,
[s. 360 ( 1)] : if the evidence is taken down in a language different
from the language in which it is given, and the witness does not
understand the language in which it is taken down, it shall be
interpreted to him [s. 360(3)]: if the accused does not understand the language in which the evidence is give._n, it shall be
interpreted in the language understood by him : and the statement
of the accused shall be recorded in the form of questions and
answers, [s. 364( I)], whereas the evidence of witnesses shall unless otherwise directed be taken in narrative form.
Compliance
with the provisions is insisted upon in the larger interest of justice,
but every departure from the strict letter of the law will not ajf~t
the validity of the trial.. The object of the provisions being '\o
ensure that a correct record is mai1ntained of what is said in Court
by witnesses, so that it may be available at a later stage of the
frial and in appeal, if the Court is satisfied that in a given case
the record notwithstanding any departure from the provisions is
correct the irregularity may be ignored if no injustice has resulted
therefrom.
A rule relating to the appendi,ng of the signature of the Judge
on the record of the evidence does not go to the root of the triaJ.
Section 537 Code of Criminal Procedure is intended to meet
situations in which the strict letter of the law is not complied with.
The section, insofar as it is material, provides :
"Subject to the provisions hereinbefore contained,
no finding, sentence or order passed by a Court of competent jurisdiction, shall be reversed or altered under
Ch. XXVII or on appeal or revision on accountA
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( a) of any error, omission, or irregularity in the
complaint, summons, warrant, proclamation,
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order, judgment or other proceeding before or
during trial or in any inquiry or other proceeding
under this Code, or
Explanation.-Ln determining whether any error,
omission or irregularity in any proceeding under this
Code has occasioned a failure of justice, the Court shall
have regard to the fact whether the objection could and
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L. D. HEALY V. U.P. STATE (Shah, J.)
should have been raised at an earlier stage in the
proceedings."
95S
There was irregularity in maintaiining the record of the evidence
at the trial, because the evidence was recorded before one Judge
and another Judge subscribed his signature to the record of that
evidence.
There was, therefore, no strict compliance with
the
provisions of s. 356 ( 1) Code of Criminal Procedure.
But no
ground for holding that the trial is vitiated is made out merely
because instead of the Judge who heard the evidence, his successor had signed the record. In Abdul Rahman v. King-Emperor('),
at the trial of a person accused of a charge for abetment of forgery the depositio1n of witnesses were read over to them while the
case otherwise proceeded, and the evidence oi some other witnesses
was handed over to them to read to themselves. There was violation of s. 360 Code of Criminal Procedure which provided that
deposition of each wituess should be read over to him in the
presence of the accused or his pleader.
An objection was raised
as to the validity of the order of conviction on the ground that
the requiremeints of s. 360 of the Code of Criminal Procedure
were not complied with.
No inaccuracy in the deposition was
suggested, but only failure to comply with the strict requirements
of s. 360 was made the ground on which the trial was contended
to be vitiated. The Judicial Committee observed that there had
been no actual or possible failure of justice. According to the
Judicial Committee reading over of the depositions oi the witinesses
while the case was otherwise proceeding was not a violation of
s. 360 of the Code, and that giving of depositions to witnesses to
read to themselves was rightly treated by the High Court as an
irregularity curable under s. 537 of the Code of Criminal Procedure.
•
Failure to record the evidence of witnesses J. K. Mehta and
V. P. Chaturvedi again iJ11 the presence and under the superintendence of the Judge who signed may be a regrettable irregularity,
but it does not vitiate the trial.
Counsel for the appellant, however, invited our attention to
the judgment of the Privy Council in Nazir Ahmad v. The KingEmperor('), and contended that where the Legislature has prescribed a method iJ11 respect of a certain thing, it means that that
is the only method in which the thing must be done or not at all.
Counsel said that the method of recording the evidence and of
maintaining the record is prescribed by s. 356 oi the Code of
Criminal Procedure and no substitute is permissible.
In our
judgment, the principle of Nazir Ahmed's case(') has no application here.
That was a case in which the appellant who was
charged with dacoity and murder was convicted on the strength
(1) L.R. 54 l.A. 96.
(2) L.R. 63 I.A. 372.
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SUPREME COURT REPORTS
[1969] 2 S.C.R.
of a confessiqn said to have been made by him to a magistrate
of the class entitled to proceed under the provisions of s. 164 of
the C0de of Criminal Procedure relating to the recording of confessions.
The confession was not recorded according
to the
procedure prescribed by s. 164 of the Code of Criminal Procedure
and the record of the confession was not therefore available as
evidence.
The Magistrate however appeared as a witness and
gave oral evidence about the making of the ·confession.
The
Judicial Committee held that the oral evidence of the Magistrate
of the alleged confession was inadmissible.
According to the
Judidal Committee the effect of ss. 164 and 364 of the Code of
Criminal Procedure, cainstrned together, is to prescribe the mode
in 'which confessions are to be dealt with by magistrates when
made during an investigation.
The rule that where a power is
given to do a certain thing in a certain way the thing must be
done iin that way, to the exclui,:on of all other methods of
performance, or not at all, was applicable to a magistrate,.
who is a judicial officer, acting under s. 164. In· that case, in the
view of the Judicial Committee, the only manner in which a
judicial confession could be recorded is the one prescribed by
s. 164 of the Code of Criminal Procedure and if it is not so recorded no evidence of the making of that confession was admissible.
The reasons for that view were explained by the Judicial
Committee. A judicial confession in a trial is of greater sanctity
because it is recorded before an independent Judicial Officer after
taking full precautions to ensure that the accused making the confession is free from all police or other influence and after the
accused has had sufficient opportunity of considering whether he
should or should not make confession and that there is no compul-.
sion upon the accused to make a confession. The law requires
that the accused must be explained that he is not bound to make
the confession.
A confession obtained in such circumstances ha~
great probative value in considering its voluntary character.
Section 164 prescribes stringent rules as to the manner in which
the confession has to be recorded. If the rules are not complied
with, there is no guarantee that the confessi~n has been voluntarily
made. It is in the context of these provisions that the Judicial
Committee held that confession which is not recorded. in the manner prescribed by s. 164 of the Code of Criminal Procedure cannot be deposed to by a Magistrate as if it was an extra-judicial
confession.
The Judicial Committee observed that when the
Legislature has prescribed the method of recording the confessions
under s. 164 and s. 364 it would be an unnatural construction to
hold that any other procedure was permitted. than that which is
laid down with such minute particularity in the sections themselves.
They further observed :
"As a matter of good seirise, the position of accused
persons and the position of magistracy are both to be
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L. D. HEALY V. U.P. STATE (Shah, J.)
considered.
An examination of the Code shows how
carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of
examination of, accused persons, and as to how the
results are to be recorded aind what use is . to be made
of such records. Nor is this surprising in a jurisdiction
where it is not permissible for an accused person to
give evidence on oath.
So with regard to the magistracy : it is for obvious reasons most undesirable that
magistrates and judges should be in the position of
witnesses in so far as it can be avoided.
Sometimes
it cannot be avoided, as under s. 533; but where matter
can be made of record and therefore admissible as such
there are the strongest reasons of policy for supposing
that the Legislature designed that it should be made
available in that form and no other. In their Lordships'
view, it would be particularly unfortunate if magistrates
were asked at all generally to act rather as police-officers
tha.n as judicial persons, to be by reason of their position
freed from the disability that attaches to police-officers
under s. 162 of the Code; and to be at the same time
freed, notwithstanding their position as magistrates, from
any obligation to make records under s. 164."
957
No such considerations apply to the record of evidence of witnesses given in open court made in the presence and under the
personal supervision of a Judge and in the presence of the
accused, and his lawyer.
( 3) It was then urged that the investigation was made by an
officer who had no authority to investigate the offence.
After
Ghammoo made his complaint sanction of the Additional District
Magistrate (Judicial) was obtained for investigation of the case
by a police-officer below the rank of a Deputy Superintendent of
Police. Section SA(l)(d) of the Prevention of Corruption Act,
194 7, provides :
"No police officer below the rank of a Deputy
Sup~rintendent of Pol~ce shall inv~stigate any offence
pumshable under section 161, sect10n 165 or section
165A of the I.P.C. or under section 5 of this Act without order of a Presidency Magistrate or a Magistrate
of the First Class, as the case may be, or to make any
arrest therefor without a warrant. ... "
The Legislature has provided that ordinarily investigation of a
case against a public servant should be made by an officer not
below the rank of a Deputy Superintende,nt of Police in connection with the charge of bribery and related offences. But the Legis-
958
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Iature has expressly provided that an Officer below the rank of a
A
Deputy Superintendent of Police may investigate those offences
with the order of a Presidency Magistrate or a Magistrate. of the
First Class.
In the present case the order of the Additiooal
District Magistrate who held the office of a First Class Magistrate
was obtained authorising an Officer below the rank of a Deputy
Superintendent of Police to investigate the offence. No objection
B
is raised to the regularity of the proceeding before the Additional
District Magistrate, nor is there any ground that for an oblique
motive, services of an officer below the rank of a Deputy Superin·
tendent of Police were used in making the investigation against
the appellant. The third contention must also fail.
The appeal fails aind is dismissed.
c
R.K.P.S.
Appeal dismissed.
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