# THE STATE OF UTTAR PRADESH v. BHAGW ANT KISH ORE JOSHI

- **Citation:** [1964] 3 S.C.R. 71
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** K. Subba Rao, Raghubar Dayal, j. R. MUDHOLKAU
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-v-bhagw-ant-kish-ore-joshi-3019
- **Pages:** 17

## Headnote

Criminal Trial-Investigation by Police Officer be/011· the
rank of Deputy Si<perintendent of Police-Previou8 permission
of lrfagistrale not obtained-If proper
inveciligation-Such
omi!sion if vitiated the trial-Prevention of Corru7dion Act,
19/7 (2 of 1947), s. 5A-Code of Criminal PrOC1dure, 1898
(Act 5 of 1898), ss. 4 (1), 154, 157.
The respondent was a hooking
clerk. He committed
criminal breach of trust in respect of Rs. 49!! !O. On the receipt
of the abovementioned information
the Superintendent of
Police directed M, a Sub-Inspector of Police, to make an
enquiry. Thereafter M verifiod
the allegations contained in
lhe information and examined the relevant railway records. 0 11
1963
S.R. Tewllri
••
District Board
~tra
1969
April 17
1§63
State ef Uttar
Prlliesh
••
~ha1want KishMrt
Joshi
72
SUPREME COURT REPORTS (1964] VOL.
the basi• of the information collected, he submitted a report.
M made the first stage :of investigation without obtaining the
order of the Magistrate, !st Class.l Subsequently, M obtained
permission of a Magistrate, !st Class, to investigate into tho
case as required by s. 5A of the Prevention of Corruption Act.
Thereafter. he made further investigation and submitted a
charge sheet. The respondent was tried and convicted by the
Special Judge under s. 5 (2) of Prevention of Corruption Act.
On appeal the High Court set aside the conviction:mair,]y on
the ground that the first stage of the investigation was contrary
to s. 5A of the Prevention of Corruption Act and the accused
must be held to have been seriously prejudiced by the said
contravention of the Act.
Held (per Subba Rao and Dayal, JJ.), that the first stage
of investigation made by M, before obtaining the requisite
permission of the Magistrate, !st Class, under s. 5A of the
Act, was an "investigation" within the meaning of s. 4 ( l) of
the code of Criminal Procedure. M received
through the
report a detailed information of the offence alle1:ed to have
been committed by the accused with necessary particulars; he
proceeded to the spot of the offence, ascertained the relevant
facts by going through the railway records, and submitted a
report. These acts constituted an investigation within the
meaning of the definition of "investigation" under s. 4 (I) of
the Code of Criminal Procedure and as such there was a contravention of s. 5A of the Prevention of Corruption Act.
Subsequently M rectified the earlier defect by obtaining
the permission of the Magistrate, !st Class, to investigate into
the offence alleged to have been committed by the accused and
in effect . there was practically de nova investigation in strict
compliance with the provision of Code of Criminal Procedure.
In fact, the accused has not been prejudiced by the illegality
committed by the Police in the first stage of investigation. The
conviction of an accused cannot be set aside on the ground
, of some irregularity or illegality in the matter of investigation,
there must be sufficient nexus either established or probabilized,
between the conviction and the irregularity in the investigation.
H. N. Rishbud and lnder Singh v. State of Delhi, [1955]
I S. C.R. 1150, relied on.
In re Nanumuri Anandayya, A. I. R. 1915 Mad. 312,
In re Rangarajulu, A. I. R. 1958 Mad, 368 and The State of
Kerala v. M . .T. Samuel, I. L. R. 1960 Kerala 783, referred tQ.
-
,
•
3 S.C.R.
SUPREME COURT REPORTS
73
Per Mudholkar J .-In fact there was no defect or irregu·
larity in conducting the first stage of investigation. Investi·
gation, in substance, means collection of evidence relating to
the commission of offence for establishing the accu,ation against
the offender. It is open to a Police Officer to hold preliminary
enquiry for ascertaining the correctness of the information.
Such preliminary enquiry does not amount to collection of
evidence and so cannot be regarded as investigation.
'
H. N. Rishbwl and ln'der Singh v. State of Delhi, [1955]
I S. C.R. 1150, relied on.
CRIMINAL APPELLATE J URISDIC'rION : Criminal
Appe

## Text

3 s.c.R.
SUPREME COURT REPORTS
71
is one primarily of fact ; and it was never raised,
nor explored in the High Court on proper pleadings.
It would be takiug the Board by surprise to allow
the appellant to make out this new case at this stage.
We therefore refuse to consider the question whether
the order passed against the appellant pursuant to
the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board,
as a punishment for misconduct.
The appeal therefore fails and is dismissed.
Having regard to the circumstances, there will be no
order as to costs in this Court.
Appeal disniis <ed.
THE STATE OF UTTAR PRADESH
v.
BHAGW ANT KISH ORE JOSHI
(K. SUBBA RAO, RAGHUBAR DAYAL and
j. R. MUDHOLKAU JJ.)
Criminal Trial-Investigation by Police Officer be/011· the
rank of Deputy Si<perintendent of Police-Previou8 permission
of lrfagistrale not obtained-If proper
inveciligation-Such
omi!sion if vitiated the trial-Prevention of Corru7dion Act,
19/7 (2 of 1947), s. 5A-Code of Criminal PrOC1dure, 1898
(Act 5 of 1898), ss. 4 (1), 154, 157.
The respondent was a hooking
clerk. He committed
criminal breach of trust in respect of Rs. 49!! !O. On the receipt
of the abovementioned information
the Superintendent of
Police directed M, a Sub-Inspector of Police, to make an
enquiry. Thereafter M verifiod
the allegations contained in
lhe information and examined the relevant railway records. 0 11
1963
S.R. Tewllri
••
District Board
~tra
1969
April 17
1§63
State ef Uttar
Prlliesh
••
~ha1want KishMrt
Joshi
72
SUPREME COURT REPORTS (1964] VOL.
the basi• of the information collected, he submitted a report.
M made the first stage :of investigation without obtaining the
order of the Magistrate, !st Class.l Subsequently, M obtained
permission of a Magistrate, !st Class, to investigate into tho
case as required by s. 5A of the Prevention of Corruption Act.
Thereafter. he made further investigation and submitted a
charge sheet. The respondent was tried and convicted by the
Special Judge under s. 5 (2) of Prevention of Corruption Act.
On appeal the High Court set aside the conviction:mair,]y on
the ground that the first stage of the investigation was contrary
to s. 5A of the Prevention of Corruption Act and the accused
must be held to have been seriously prejudiced by the said
contravention of the Act.
Held (per Subba Rao and Dayal, JJ.), that the first stage
of investigation made by M, before obtaining the requisite
permission of the Magistrate, !st Class, under s. 5A of the
Act, was an "investigation" within the meaning of s. 4 ( l) of
the code of Criminal Procedure. M received
through the
report a detailed information of the offence alle1:ed to have
been committed by the accused with necessary particulars; he
proceeded to the spot of the offence, ascertained the relevant
facts by going through the railway records, and submitted a
report. These acts constituted an investigation within the
meaning of the definition of "investigation" under s. 4 (I) of
the Code of Criminal Procedure and as such there was a contravention of s. 5A of the Prevention of Corruption Act.
Subsequently M rectified the earlier defect by obtaining
the permission of the Magistrate, !st Class, to investigate into
the offence alleged to have been committed by the accused and
in effect . there was practically de nova investigation in strict
compliance with the provision of Code of Criminal Procedure.
In fact, the accused has not been prejudiced by the illegality
committed by the Police in the first stage of investigation. The
conviction of an accused cannot be set aside on the ground
, of some irregularity or illegality in the matter of investigation,
there must be sufficient nexus either established or probabilized,
between the conviction and the irregularity in the investigation.
H. N. Rishbud and lnder Singh v. State of Delhi, [1955]
I S. C.R. 1150, relied on.
In re Nanumuri Anandayya, A. I. R. 1915 Mad. 312,
In re Rangarajulu, A. I. R. 1958 Mad, 368 and The State of
Kerala v. M . .T. Samuel, I. L. R. 1960 Kerala 783, referred tQ.
-
,
•
3 S.C.R.
SUPREME COURT REPORTS
73
Per Mudholkar J .-In fact there was no defect or irregu·
larity in conducting the first stage of investigation. Investi·
gation, in substance, means collection of evidence relating to
the commission of offence for establishing the accu,ation against
the offender. It is open to a Police Officer to hold preliminary
enquiry for ascertaining the correctness of the information.
Such preliminary enquiry does not amount to collection of
evidence and so cannot be regarded as investigation.
'
H. N. Rishbwl and ln'der Singh v. State of Delhi, [1955]
I S. C.R. 1150, relied on.
CRIMINAL APPELLATE J URISDIC'rION : Criminal
Appeal No. 171of1961.
Appeal by special leave from the Judgment and
order dated January 30, 1960, of the Allahabad
High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 643 of 1960.
R. L. Mehta, G. 0. Mathur and O. P. Lal,
for the appellant.
'1'. R. Bhasin, for the respondent.
1963. April 17. The Judgment of Subba
Rao and Dayal JJ., was delivered by Subba Rao J.
Mudholkar J., delivered a separate Judgment.
SuBBA RAo J.-This appeal by special leave
is directed against the judgment of the High Court
of Judicature at
Allahabad, Lucknow, Bench
Lucknow
setting aside
that of the
Special
Judge
(West),
Lucknow,
who
convicted
the
accused-respondent
and
sentenced
him to on~
year's rigorous
imprisonment under s. 5 (2) of
the Prevention of Corruption Act (No. II of 1947),
hereinafter called the Act.
The case of the prosecution may be briefly
stated : The respondent was a booking clerk at
Saharanpur in the year 1955-56. Between October
22, 1955, and May 26, 1956, he committed criminal
190!1
Stale of UttM
Praiesh
••
Bh•:IVcnt Kish&.r•
· .-.. J1shi
suu. /! .. /.
1969
Sta.ti l,j Uttar
Pradesh
v.
a·hatW4nt Kishtr1
Joshi
Su~b• Rao J.
;<
74
SUPREME COURT REPORTS [1964] VOL.
breach of trust in respect of Rs. 49/1/0.
On the
said allegations the accused was sent up for trial
before the Special Judge for offences under s. 5 (1)
(c), read with s. 5 (2), of the Act.
Before the
Special Judge the prosecution filed a number of
documents numbering up to 124 and ·examined
20 witnesses.
The accused admitted before him
that he had realized the amounts as alleged by the
prosecution, but pleaded that he had no dishonest
intention, and that the deficit found was due to
inadvertance and oversight. The Special Judge considered the entire evidence and found that the evidence
adduced by the prosecution established that the
accused misappropriated the amounts received by him
as a public servant. It was contended before him that
the investigation of the case has been made by Sub·
Inspector Mathur, who under the law
wa~ not
entitled to investigate the case, as he was below the
rank of Deputy Superintendent and hence the trial
was vitiated. The learned Special Judge held that
the said Sub-Inspector did not conduct any investigation before he ,..obtained the requisite permission
from the appropriate authority and that even if he
did it had not been established that the accused was
prejudiced by such an enquiry. In the result he
convicted the accused and sentenced him as aforesaid.
On appeal by the accused, the High Court set aside
the conviction mainly on the ground .that the SubInspector Mathur made "Investigation" before he
obtained the permission of the Additional District
Magistrate (Judicial), Lucknow, to investigate the
case and as the said investigation was in violation of
the provisions of the Act, the accused must be held
to have been seriously prejudiced by the said con·
travention of the Act.
The High Court also
casually observed that it was inclined to take the
view that the prosecution had not eliminated the
reasonable possibility of the defence of the accused
being correct.
For the said reasons the High Court
set aside the conviction of the accused and acquittec\
-
..,..---..... , .
'
•
3 S.C.R.
SUPREME COURT REPORTS
75
him.
The State has preferred the present appeal
against the said judgment of the High Court.
The only question that was argued before us is
whether the .High Court was right in acquitting the
accused on the ground that the investigation made
by Sub·Inspector Mathur before he obtained the
permission of the Magistrate vitiated the entire trial.
Learned counsel for the State contended that
the said Sub·Inspector only made a preliminary
enquiry to ascertain the truth of the mformation
received by him and, thereafter, after obtaining the
requisite permission of the Magistrate he made an
investigation of the offence and, therefore, there was
neither illegality nor irregularity in the matter of
investigation.
In any view, the argument proceeded,
the High Court went wrong in setting aside the
conviction based on evidence without considering
and coming to a conclusion whether the said irregularity, if any, had prejudiced the accused.
On the other hand, learned counsel for the
accused-respondent, pressed on us to hold that the
investigation w ,g made in consistent disregard of the
safeguards provided by the Legislature in such a
case and therefore the Court should, without any
._ .
further proof, presume prejudice to the accused.
Before we consider the merits of the rival
contentions it would be necessary to notice briefly
the alleged irregularity committed by the prosecution in the matter of investigation.
On April 26,
1956, A.N. Khanna, the Railway Sectional Officer, Special Police Establishment,
Lucknow, sent a report to the Superintendent of
Police, Special Police Establishment, stating that
he had received iqformation through a source that
!JU
Stal1.of Uttar
Pr•J1sh
v.
Blr•1want KUh1r1
/1shi
Suib• Rao/,
1963
Slat1 Qf Uttar
Ptadesh
••
Bha:w•nt Kish•re
Joshi
Subia Raa J,
,
76
SUPREME COURT REPORTS [1964] VOL.
the accused was in the habit of misappropriating
Government money, giving 7 instances of the acts
of misappropriation• committed by him and infor·
ming him that if a proper investigation was made
many more cases of misappropriation would come to
light.
Mathur, the Sub· Inspector of Police, Special
Police Establishment, as P.W. 15 says that on the
receipt of the said report, the said Superintendent of
Police directed him to make an enquiry ; and he
further says that. on the basis of the information he
checked the railway records, found that the information was correct and submitted a report accordingly.
After he submitted the report, on October 8, 1956,
the said Sub-Inspector applied to the Additional
District Magistrate (Judicial), Luchnow, for per·
mission to investigate the case.
On October 19,
1956, the said Magistrate permitted him to investi ·
gate.
Thereafter, he made further investigation,
seized documents, took statements from witnesses and
finally submitted a charge·sheet against the accused.
The first question is whether the enquiry made
by him before he obtained the permission of the
Magistrate was "investigation" within the meaning
of the provisions of the Code of Criminal Procedure.
Section 154 of the Code prescribes the mode of record·
ing the information received orally or in writing by
an officer incharge of a police station in respect of
the commission of a cognizable offence. Section
156 thereof authorizes such an officer to investigate
any cognizable offence prescribed therein. Though
ordinarily investigation is undertaken on information
received by a police officer, the receipt of information
is not a condition precedent for investigation. Section
157 which prescribes the procedure in the matter of
such an investigation can be initiated either on
information or otherwise. It is clear from the said
provisions that an officer incharge of a police
station can start investigation either on information
or otherwise. Under s. 4 (1) of the Code of Criminal
•
. ,.
-
•
3 S.C.R.
SUPREME COURT REPORTS
77
Procedure, "Investigation" includes all the proceedings under this Code for the collection of evidence
conducted by a police-officer or by any person
(other than a Magistrate) who is authorized by a
Magistrate in this behalf." This Court in H.N.
Ri8hbud and Inder Singh v. The State of Delhi ('),
described the procedure prescribed for investigation
under Ch. XIV of the Code of Criminal Procedure
thus:
"Thus, under the Code illvestigation 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) examination of various persons (including the accused)
and the reduction of their statements into
writing, if the officer thinks fit, {b) the search
@f places of seizure of things considered
necessary for the investigation and to be
produced at the trial, and (5) Formation of
the opinion 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 filing of a
charge-sheet under section 173."
Did Mathur, the Sub-Inspector, make such an
investigation before he obtair•ed the permission of the
Magistrate under s. 5A of the Act ? Ex. P-113
shows that Khanna, the Railway Sectional Officer,
received through a source information that the
accused was in
the habit of misappropriating
Government money by not accounting for the saleproceeds of blank paper and other tickets ; it also
indicates that the i1,formation received by the said
'
officer was not vague, but contained precise parti-
:.......i'
culars of the acts of misappropriation committed by
(I) {1955) IS, C. R, 1157-58.
1963
St1t eof lltt•r
PratfeJh
••
Blr•twa.nt Xisllor1
J1shi
SuUa R•o J.
1969
Stt1l6 tJj.Uttsr
.Prt1tl1sh
. v.
Rh•zwant Kislu1r6
·
Jo1hi
Suiba R«0 J.
78
SUPREME COURT REPORTS [1964] vot.
the accused.
On April 26, 1956 he sent a report of
the information received to the SuperiFJtendent of
Police,
Special Police Establishment, Lucknow,
indicating to him that if a proper investigation was
made many more cases of misappropriation would
come to light. On the receipt of the said report,
the matter was entrusted to the said Mathur, a Sub·
Inspector of Police of the Special Police Establishment,
Lucknow.
As P. W. 20 he describes the steps he had
taken pursuant to the information given in the said
report.
He verified the allegations contained in the
information given by Khanna; saw the relevant railway records after taking the permission of the Station
Master and found· the information given to be
correct. On the basis of the information collected,
he submitted a report. But the full details of the
enquiry were not mentioned therein.
He also did
not prepare any case diary in respect of the said
enquiry. The said report is not in the record.
We
may assume that the Sub-Inspector did nothing more
than what he states he did in his evidence. Even so
t e said police officer received a detailed information of the offence alleged to have been committed
by the accused with necessary particulars, proceeded
to the spot of the offence, ascertained the relevant
facts by going through the railway records and submitted a report of the said acts. The said acls constituted an investigation within the meaning of the
definition of "investigation" under s. 4 (1) of the
Code of Criminal Procedure as explained by this
Court. The decisions cited by the learned counsel
for the State in support of his contention that there
was no L1vestigation in the present case are rather ·
wide off the mark,
In In re Nanumuri Anandayya
(' ), a division Bench of the Madras High Court held
that an informal enquiry on the b isis of a vague
telegram was not an investigation within the meaning
of s. 157 of the Code of Criminal Procedure.
In
In re Rangarajulu (2), Ramaswami J., of the Madras
(I) A.1.R, 1915 Mad. 512.
l2) A.I.R. 1958 Macl. 368, 371-372.
•,
•
I
-
a s.c.R.
StJPREM~ COtJR T REPORTS
79
High Court described the following three stages a
policeman has to pass in a conspiracy· case :
" ...... hears something of interest affecting the
public security and which puts him on the alert;
makes discreet enquiries, takes soundings and
sets up informants and is in the second stage
of
qui vive or lookout; and finally gathers
sufficient information enabling him to bite
upon something definite and that is the stage
when first information is recorded and when
investigation starts."
fhis graphic description of the stages is only a restatement of the principle that a vague information
or an irresponsible rumour would not in itself constitute information within the meaning of s. 154 of the
Code or the basis for an investigation under s. 157
thereof. In The State of Kerala v. M. J. Samuel
( 1), a full Bench of the Kerala High Court ruled that,
"it can be stated as a general principle that it is not
every piece of information however vague, indefinite
and unauthenticated it may be that should be recorded as the First Information for the sole reason that
such information was the first, in point of time, to
be received by the police regarding the commission
of an offence." The full Bench also took care to
make it clear that whether or not a statement would
constitute the First Information Report in a case is a
question of fact and would depend upon the circumstances of that case. These and such other decisions
were given in the context of the question whether an
information given was the First Information within
the meaning of s. 154 of the Code : they are not of
much relevance in considering the question whether
in a particular case a police officer has made an
investigation of a cognizable offence within the
meaning of s. 157 of the Code; that would depend
upon the nature of the information received by
the police officer, and the steps taken by him for
(I) I. L. R. 1960 Kerola 78S,
1963
Stat• of Uuor
Pratf1Jh
v.
Blia,want. Kish~r«
·
Joslri
Subta Rao J.
'
196J
Stat1 of UtttJr
f' ttitlesh
v.
lJlts1 waPCt Kishore
Joshi
SuJ~· RIO J.
SO
SUPREME COURT REPORTS [1964] VOL.
ascertaining the truth of the information and for
detecting the crime.
In this case, the information received was clear
and precise and the Sub· Inspector, on the basis of
the said information, went to the spot to investigate
into the truth of the allegations and indeed took
some of the crucial steps to detect the crime. We,
therefore, hold that the Sub-Inspector of the Police
made investigation of the offence before obtaining
the requisite permission of the Magistrate.
Section 5A of the Act reads :
"Notwithstanding anything contained in the
Code of Criminal Procedure, 1898, no police
@f!icer below the rankx
x
x
x
x
x
{c) elsewhere, of a deputy superintendent of
police,
shall investigate any offence punishable under
section 161, section 165, or section 165A of the
Indian Penal Code or under sub-section (2) of
section 5 of this Act, without the order of a
presidency magistrate or a magistrate of the
first class, as the case may be, or make any
arrest therefore without a warrant ;"
It is manifest from the section that an officer below
the rank of a Deputy Superintendent of Police cannot
investigate an offence punishable under the provisions
of the Act without the order of a Magistrate, First
Class.
The scope of the said section and the reason
underlying the iaid provision and others were considered by this Court in The State of Madhya
Pradesh
v. Mubarak Ali (1). It was stated therein thats. 5A
was inserted in the Act by Act 59 of 1952 to protect
(1) [1959] Supp. 2 9. C.R. 201.
I
•
i
--
•
-
3 s.c.R.
SUPREME COURT REPORTS
81
public servants against harassment and victimization.
This Court further observed therein that the said
statutory safeguards must be strictly complied with,
for they were conceived in public interest and were
provided as a guarantee against frivolous and vexatious prosecution. The reason for the rule was given
thus, at p. 208 :
"While in the case of an officer of assured
status and rank, the legislature was prepared
to believe him implicitly, it prescribed an
additional guarantee in the case of police officers
below that rank, namely, the previous order of
a presidency magistrate or a magistrate of the
first class, as the case may be. The magistrate's
status gives assurance to the bona fide of the
investigation."
Notwithstanding the clear and express provisions of
the statute, in the present case the Sub-Inspector
made the investigation of the offence alleged to have
been committed by a public servant without obtaining the order of a Magistrate, First Class.
We hope
and trust that investigations under the Act will be
conducted in strict compliance with the provisions of
the Act.
But in this case the police officer realised his
duty after he made some investigation of the offence
and hastened to rectify the defect.
After he verified
the railway records in the light of the information .
received by him, he registered the case.
Thereafler
on October 8, 195G. he applied to the Additional
District Magistrate (Judicial), Lucknow, for permission to investigate the offence. Therein he stated
that no Deputy Superintendent of Police was posted
for the Lucknow branch of the
Special
Police
Jllstablishment.
The Superintendent of Police in
Eorwarding that application endorsed that statement
nd further pointed out that he was busy with the
1963
Staie of UUar
Pradesh
v.
/Jhsgwant A'iJ/rort
}'5hi
~·ubha Ra1J J.
1969
·~141• of Utl•r
Prad1sh
v.
Bh•gwont KWwr1
Joshi
Subb• Rao J.
82
SUPREME GOUR t REPORTS tI964] VOL.
supervision of other important cases and administrative duties. The Magistrate on October 19, 1956,
on the basi> of the said facts gave the neces•ary
permission to the Sub-Inspector to investigate the
offence.
The Sub-Inspector thereafter made a
detailed investigation, took statements. of witnesses,
seized the relevant papers, got an investigation made,
when necessary through other branches of the Special
Police Establishment, and thereafter submitted the
charge-sheet. In short, after taking the permission of
. the Magistrate, he started practically a fresh investigation in strict compliance with the provisions
of the Code of Criminal Procedure.
Indeed, no
attempt has been made to point out any defect or
contravention of the provisions of the Code of Criminal Procedure in the matter of investigation after
the granting of the said permission.
After the
investigation, the accused was tried by the Special
Judge. The prosecution examined 20 witnesses and
filed 124 exhibits. The defence examined 3 witnesses.
The learned Special Judge, on a careful consideration of the entire evidence, came to the conclusion
that the prosecution had brought home the guilt of
the accused.
In these circumstances the question is whether
the High Court was justified in setting aside the
conviction on the ground that the first stage of the
investigation was contrary to the provisions of the
Act.
•
-
The argument of the lea r~ed counsel for the
respondent may be elaborated thus : Whenever
•
there is a consistent disregard of the provisions of the
Code of Criminal Procedure in the matter of investigation it must be held almost in all cases that it has
prejudiced the accused in the matter of trial, for
otherwise it would enable a police officer below the
rank of Deputy Superintendent of Police to make an
investigation free from the statutory safeguards
"'< . .-
ll S.C.R.
SUPREME COURT REPORTS
S3
designed to prevent the abuse of police powers, to
secure the necessary information and thereafter to
take the requisite permission nf the Magistrate and
then to shape his investigation to achieve the desired
result or to implement his scheme. No doubt this
practice, if it exists, must be condemned ; but the
question is, does the infringement of the salutary
provisions of the Act in the matter of investigation,
without more, invalidate the trial ? If we accept
the broad· proposition advanced by the learned
counsel, we would be disregarding the provisions of
s. 537 of the Code of Criminal Procedure ; we
would be ignoring an honest body of compelling
evidence on the basis of the dereliction of duty by the
police. The question is not whether in investigating
an offence the police have disregarded the provisions
· of the Act, but whether the accused h<1s been prejudiced by such disregard in the matter of his defence
at the trial. It is, therefore, necessary for the
accused to throw a reasonable doubt that the prosecution evidence is such that it must have been
manipulated or shaped by reason of the irregularity
in the matter of investigation, or that he was prevented by reason of such irregularity from putting
forward his defence or adducing evidence in support
thereof. But where the prosecution evidence has
been held to be true and where the accused had
full say in the matter, the conviction cannot obviously
be. set aside on the ground of some irregularity or
illegality in the matter of investigation : there must
be a sufficient nexus, either established or probabilized, between the conviction and the irregularity in
the investigation. In this case, as we have earlier
pointed out, not only the trial was fair and the
evidence convincing, but even the earlier defect was
rectified by having practically a de novo investigation
in strict compliance with the provisions of the Code
of Criminal Procedure. We cannot, therefore, hold
that the accused has been prejudiced by the illegality
1963
.. talt of Uttar
Pradesh
••
Bha1,want Kishore
Joshi
Subha Rao J,
1963
Stou ef U<tor
Pradesh
v.
Blrt1gwant KiJhor1
Joslii
Mu""'1/lar I.
$4
SUPREME COURT REPORTS [1964] voi.
committed by the police in the first stage of the
investigation.
The High Court set aside the conviction on the
ground that there was a breach of the mandatory safe
guards of the Act in that the first stage of the
investigation was contrary to the provfaions of the
Act.
But it did not consider the other question
whether the said breach caused prejudice to the
accused in the matter of his trial. In doing so, the
High Court ignored the provisions of s. 537 of the
Code of Criminal Procedure.
Having carefully gone
through the record, for the reasons aforesaid, we -are
satisfied that no such prejudice has been caused to
the accused.
He had a fair trial and had his full
say. We, therefore, set aside the order of the High
Court and convict the respondent under s. 5 (2) of
the Act and sentence him to one 'year's rigorous
imprisonment.
MuJJJIOLKAR J.--1 have perused the judg·
ment prepared by Subba Rao, J., and I agree with
him that the appeal should
be allowed and the
respondent who was a booking clerk at Saharanpur
at the relevant time should be convicted and sent·
enced as proposed by him.
I aho agree that a mere
irregularity in investigation would not be a ground
for setting aside the conviction of an accused person
unless the court is satisfied that the accused has been
prejudiced by it.
I, however, find it difficult _to
agree with his conclusion that there was in fact a
defect or irregularity in the investigation in this
case.
For the purpose of dealing with this point it is
nut necessary to set out all the facts which fully
appear in the judgment of my learned brother.
I
. will, therefore, set out only those facts which h11ve a
bearing upon this point.
·
3 S.C.R.
SUPREME COURT REPORTS
85
Upon rece1vmg
a report from the Railway
Sectional Officer, Special
Police Establishment,
Lucknow, stating that he had received information
through an undisclosed source that the respondent
is in the habit of misappropriatini! Government
money, the Superintendent of police, Special Police
Establishment directed Sub-Inspectnr Mathur to
verify the truth of the all•·gations made against the
respondent. Mathur thereupon went to the Saharan·
pur railway station and with the permission of the
appropriate authority went through certain railway
records and submitted a report to his superior to the
effect that the allegations made against the respondent appeared to be correct.
It was thereafter that
he obtained the permission
of the Additional
District Magistrate (judicial), Lucknow, to invcsti·
gate into the case as required by s. 5A of the Preven·
tion of Corruotion Act and then proceederl to investigate the case.
The High Court held that what SubInspector Mathur did before obtaining the permission to investigate was nothing but investigation and
that he had done something which is prohibited by
s. 5A of the Prevention of Corruption i\rt. Therefore, according to the High Court the entire investigation was vitiated and consequently the respondent's conviction and sentence could not be sustained.
, "'
What is investigation is not defined in the Code
•
of Criminal Procedure ; but in H. N. Ri"shbnd and
lnder Singh v. 'l'he State o.f Delhi (1), this (:(,mt has
described the procedure for investigation as follows :
"Thus, under the Code investigation consists
generally of the following steps : ( l) Proceeding to the spot, (2) Ascertainment of the facts
and circumstances of the case, (:l) Discovery
and arrest of the suspected offender, (4) C'.)llection of evidence relating to the commission of
the offence which may consists of (a) the
examination of various persons (including the
11) [1955] IS. Q, R, IUO,
1963
State af Utt.~r
Prad11h
v.
Bhagwant Kishne
Joshi
J111t/holkM ) .
1963
State of Utts1
Pratlesh
v.
· 8hagwtmt Kiihore
.1oshi
Mutih1tk1r, J.
86
SUPREME COURT REPORTS [196~] VOL.
accused) and the reduction of the their statements into writing, if the officer thinks fit, (b)
the search of pl aces of seizure of things considered necessary for the investigation and to be
produced at the trial, and (5) formation of the
opinion 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 filling of a
charge-sheet under section 173."
This Court, however, has not said that if a police
officer takes merely one or two of the steps indicated
by it, what he has done must necessarily be regarded
as investigation. Investigation, in substance, means
collection of evidence relating to the commission of
the offence ? The Investigating Officer is, for this
purpose, entitled to- question persons who, in his
opinion, are able to throw light on the offence
which has been committed and is likewise entitled
to question the suspect and is entitled to reduce the
statements of persons questioned by him to writing.
He is also entitled to search the place of the offence
and to search other places with the object of seizing
articles connected with the offence .. No doubt, for
this purpose he has to proceed to the spot where the
offence was. com_mitted ~nd t~ v<l;rious ~ther things.
But the roam object of mvest1gat1on bemg to bring
home the offence to the offender the essential part of
the duties of an Investigating
Officer in this
connection is, apart from arresting the offender, to
collect all material necessary for establishing the
accusation against the offender. Merely making
some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the
information does not amount to collection of
evidence and so cannot be regarded as investigation.
In the absence of any prohibition in the Code
express or implied, I am of opinion that it fo ope~
3 S.C.R.
SUPREME COURT REPORTS
87
to a Police Officer to make preliminary enquiries
before registering an offence and making a full scale
investigation into it. No doubt, s.
5A of the
Prevention of Corruption Act was enacted
for
preventing harassment to a Government servant and
with this object in view investigation, except with
the previous permission of a Magistrate, is not permitted to be made by an officer below the rank of a
Deputy Superintendent of Police. Where however,
a Police Officer makes some preliminary enquiries,
does not arrest or even question an accused or question any witnesses but merely makes a few discreet
enquiries or looks at some documents without making
any notes, it is difficult to visualise how any possible
harassment or even embarrassment would result
therefrom· to the suspect or the accused person. If
no harassment to the accused results from the action
of a Police Officer how can it be said to defeat the
purpose underlying s. 5A ? Looking at the matter
this way, I hold that what Mathur did was something very much short of investigation and, therefore, the provisions of s. 5A were not violated.
Since no irregularity was committed by him there
is no occasion to invoke the aid of the curative
provisions of the Code.
Appeal allowed.
196.3
State of Utt«
Produh
••
Bha1w11nt Kishare
Jos .. i
Mudlwlkor /.