# Prabhu v. Emperor (A.LR. 1944 P.C. 73) and Lumbhardar Zutshi

- **Citation:** [1955] 1 S.C.R. 1150
- **Court:** Supreme Court of India
- **Decided:** 1953-08-24
- **Case number:** Criminal Revision Nos. 109-D, 122-D and 123-D of 1953
- **Bench:** MuKHERJEA, VIVIAN. BosE, Jagannadhams
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabhu-v-emperor-a-lr-1944-p-c-73-and-lumbhardar-zutshi-317
- **Pages:** 19

## Headnote

Prevention of Corruption Act, 1947 (II of 1947), s. 5(4) .and protJiso 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.
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
Conducteq 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 resul~ which fol·
low cannot be
set aside
unless the illegality in
the investigation
c.an be sh.own to have brought about a iniscarriage 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
thi!
mandatory provisions relating to
irivestigation 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
thay be called for, wholly
or partly, and by such officer as it con·
s~ders 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.LR. 1944 P.C. 73) and Lumbhardar Zutshi
v. The King (A.1.R. 1950 P.C. 26), referred to.
. CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeals Nos. 95 to 97 and 106 of 1954.
-
•
..
' .,,
S.C.R.
SUPREME COURT REPORTS
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 N 6.
131-D of 1954 .
H. /. 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

## Text

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1954
Guhinath
v .
. Kamalabai
¥ahajiin" c .. J.
1954
December 14
1150
SUPREME COURT REPORTS
[1955]
·For the reasons given above, this appeal
fails and
jg dismissed, but in the
circumstances
of the case · we
will make no order as to costs.
Appeal dismissed.
H. N. RISHBUD AND INDER SINGH
tJ.
THE STATE OF DELHI
(And connected Appeals)
[MuKHERJEA, VIVIAN. BosE and JAGANNADHAMS JJ.]
Prevention of Corruption Act, 1947 (II of 1947), s. 5(4) .and protJiso 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.
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
Conducteq 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 resul~ which fol·
low cannot be
set aside
unless the illegality in
the investigation
c.an be sh.own to have brought about a iniscarriage 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
thi!
mandatory provisions relating to
irivestigation 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
thay be called for, wholly
or partly, and by such officer as it con·
s~ders 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.LR. 1944 P.C. 73) and Lumbhardar Zutshi
v. The King (A.1.R. 1950 P.C. 26), referred to.
. CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeals Nos. 95 to 97 and 106 of 1954.
-
•
..
' .,,
S.C.R.
SUPREME COURT REPORTS
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 N 6.
131-D of 1954 .
H. /. 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
m
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 Officc;r (Steel) in the office of the Direc~
·1954
H. N. Rishbud and
lruler Singh
v;
TheStatt of Dtlhi
1954
·H. N. Rishbud and
lnder Singh
Y.
1_The State of Delhi
·-;;
-
:JagannadhadOJ J.
1152
SUPREME COURT REPORTS
(1955)
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 XI.VI of 1952).
We
are
concerned in these appeals with Cases Nos. 12, 13 and
14 of 1953.
Appeals Nos. 95, 96 and 97 arise
respect·
ively 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 uon and steel materials m the name of certain
bogus firms . and that they
actually obtained
quota
certificates,
on
the strength
of which
some of the
members of the conspuacy took delivery of quantities.
of iron and steel from
the stock-holders
of these articles.
The charges, therefore, under which the
vanous
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 m these cases were laid
in April and June, 1949, but perm1ss10n 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 m March
and April, 1951.
The charge-sheets m all these cases
were filed by such officers in
August and November,.
1951, i.e. subsequent to
the date on which perm1Ss1on
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·
perm1ss10n to investigate
by an
officer
of a lower
rank was accorded.
It appears
from the
evidence
·taken in this behalf that such investigation was i:onc
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S.C.R.
SUPREME COURT REPORTS
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
mltlated 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
he 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
disprO'-
portionate to the known
sources
of his income
and
for which he cannot satisfactorily account,
the
Court
shall presume him to be guilty of
criminal
m1scon~
duct 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 II of the Code of Criminal
Procedure under the head "offences against the :other
laws". In the normal course,
therefore,
·an investiig54
H. N. Rishbud anti
lnder Singh
v.
The State of Delhi
:Jagannadhadas :J.
1~54
H. N. Rirhbud ·anJ
lnder Singh ·
v.
T h1 State of Delh.
J~gannadhat/as].·
1154
SUPREME COURT REPORTS.
[1955]
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
prc>-
viso 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 therefor 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 ~ct
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 fonvarded
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
. _()
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)
-
S.C.R.
SUPREME COURT REPORTS
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 upo11 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 pnor mvestigation -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
polic.e
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 ac-
. cused being put up for trial for a cognizable offence
(except when the
Magistrate takes cognizance . other-
(1) [1861] 30 L.J. Ch 379·
1954
ff. N. Rishbud and
lnder Singh
v.
"The' State. of Delhi
7agannadhadas J.
1954
H. N. Rishbud and
lnder Singh
v.
The State of Delhi
:Jagannadhadas ].
1156
SUPREME COURT REPORTS
[1955)
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 m
the Act
cognizable,
prior
investigation
by
the
appropriate
police officer was contemplated
as the
normal
preli- ·
mmary to the trial in respect of such offences under
the Act.
In order to ascertain the scope of and the
reason for requmng 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
m
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 reqmre
before
himself the attendance of any person appearmg to be
acquainted with the circumstances
of the case.
He
has also the authority to examme such person orally
either by
himself or
by a duly
authorised
deputy.
The officer examining any person m the course
of investigation may reduce his statement into writing and
such writing is available, m the trial that may follow,
for use in the manner provided in this behalf
m section 162.
Under section 155 the officer in charge
of
a police station has the power of making a search
m
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
m person.
A subordinate officer may be deputed
by him for the
..
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y
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j
S.C.R.
SUPREME COURT REPORTS
1157
purpose only for reasons to be recorded in writing if
he is unable to conduct the search in person and there
1s 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
m 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
prov1S1ons
enabling
him to depute
such
subordinate
officer
for
any of the steps in the investigation)
such
subordinate officer 1s 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 m 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
1s to take
the necessary steps therefore under section 170 of the
Code.
In either case, on the completion
of the
investigation he has to submit a report to the
Magistrate under section 173 of the
Code in the prescribed
form
furnishing
vanous
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 opir954
H. }{. Rishbw/ and
lnder Singh
v.
"The State of Delhi
Jagannadhadas ]I
1954
."--
H. N. RishbuJ auJ
Inkr Singh
.
v.
The Stai• of D•lhi
j~gannadhadas J~
1158
SUPREME COURT REPORTS
[1955}
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
investiga- .
tion 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
prov!s!on
permitting
delegation
thereof
but only a prov1s10n
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 carinot take the assistance of
deputies· to
the extent permitted
by the
Code to ari
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
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·~
J
S.C.R.
SUPREME COURT REPORTS
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 cognizable, it may be presumed that it was con -
sidered 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, 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
18-89 S.C. India/59
1954
H. N. Rishhud anti
lnder Singh
v.
The State of Delhi
Jagannadhada.s ].
1954
· H. N. Rishbud and
/ruler Singh
v.
The State of Delhi
Jagannadhadas J.
1160
SUPREME COURT REPORTS
[1955]
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 No,, 25-D and 434of1953 disposed of on 3rd May
1954.
i-
-
-
SllPREME COURT REPORTS
1161
S.C.R.
·~
(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-men-
'/ tioned ".
'The argument advanced is that section 5 ( 4) and
pro-
"1 viso 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 pro-
). viso 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 section" 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
prov1s1on
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 Proce-
• <lure.
Some of the learned Judges of the High Courts
J have called ·in aid sub-section (2) of section 561 of the
Code of Criminal Procedure by way of analogy.
It
1954
H. N. Rishbud and
lnder Singh
v.
The State of Delhi
Jagannadhadas ],
1954
H. N. Rishbud and
---
lnder Singh
v.
Tfje State of Delhi
-
..
Jagannadhadas J.
1162
SUPREME COURT REPORTS
[1955] ,...
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
m
our opinion that section 5 ( 4) and proviso
to
section
3 of the
Act and the corresponding section 5-A of Act t
LIX of
1952
are mandatory and not
directory and v ,
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
in,
vestigation 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 heading "Condi-
'
tions 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-
-
-
..
-
S.C.R.
SUPREME COURT REPORTS
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 onlv in the
-! nature of error in a proceeding antecedent to 'the trial.
To such a situation section 537 of the Code of Criminal
'i Procedure which is in the following terms is attracted:
"Subject to
the provisions hereinbefore contained,
no finding, sentence or order
passed by a
Court of
competent jurisdiction shall be reversed . or altered on
appeal ot revision on account of any
error, om1ss10n
. 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
jurisdictio11 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
.J. fact been taken and the case has proceeded to termi-
(1) A.I.R. i944 P.C. 73•
(2) A.LR .. 1950 P.C. 26.
1954
H, N. RiJhbud and
lnder Singh
v.
The State ef Delhi
Jagannadhadas J.
1954
H. N. Rishbud and
/ruler Singh
v.
The State of Delhi
JaganMdhadas J.
1164
SUPREME COURT REPORTS
[19551
nation, the invalidity of
the
does not
vitiate
the
result,
justice has been caused thereby.
~
precedent
investigation 1
unless
miscarriage
of
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 manda- ~
tory 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 neces- '•
sary 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 1
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 Y
prejudice that may have been caused thereby,
by
ap;
propriate 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-
-
...
-
-
S.C.R.
SUPREME COURT REPORTS
1165
"4.,' 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
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 req11irements 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-
•
ti on 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
1954
H. N. Rishbud and
lnder Singh
v.
The State of Delhi
Jagannadhadas J.
' 1954
H. N. Rishbud and
lnder Singh
v.
The State of Delk
Jagannadhadas J.
1166
SUPREME COURT REPORTS
[1955]
of Police, R. G. Gulabani and it appears that he applied to the
Magistrate for permission to
investigate
mto
these cases
on 26-3-1951.
His evidence
shows
that so far as the case relating
to
Criminal
Appeal
No. 97 of
1954 1s
concerned. he did not make
anv
investigation at all excepting t~ put
up the
charg~
sheet.
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
perm1ss10n
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 ma1or 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 casr; 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
111 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 Prevention of
Corruption
Act.
The investigation
proceeded, therefore,
111
the normal
course.
The evidence shows that the
investigation
111 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 investi?ation
and it
appeals ftOm his evidence that he examnied as many
t.
-
-
•
-
·s.CR.
SUPREME COURT REPORTS
1167
: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
'1
Singh on 15-11-1951.
He admits that all the investigation 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.