# UNION OF INDIA v. MAJ. I. C. LALA ETC. ETC

- **Citation:** [1973] 3 S.C.R. 818
- **Court:** Supreme Court of India
- **Decided:** 1973-03-29
- **Bench:** A. Alagiriswami, I. D. Dl!A, C. A. Vaid!Alingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-maj-i-c-lala-etc-etc-5954
- **Pages:** 12

## Headnote

Indian Penal Code (Act 45 of 1860), Ss. I2()B, 420 and 511, Preven·
tion of Corruption Ac; (2 of 1947), s. 5(1)(d), 5(2) and 5A, Criminal
law Amendment Act, 1952 Ss. 6 and 7(3) Code of Criminal Procedure
Act 5 of 1898), Ss. 196A, 235 and 239-0fjence committed at more than
one place-Order of which magistrate necessary--Cognizable and noncognizab/e offences-Crit'erion-Jurisdiction to try non-Government
sel'~
vant with Governnient servants.
Practice-Duty of court to decide on genuineness of sanctfion.
Two army officers and a businessman were put up for trial before the
Special Judge under the Criminal Law Amendment Act, 1952.
They
\\·ere all charged with offences of conspiracy under s. J 20B, I.P.C. read
with s. 5(2) of the Prevention of Corruption Act and s. 420 I.P.C. The
businessman was charged under s. 42() and ss. 420 and 511, l.P.C. The
two army officers were also charged with the offences under s. 420 I.P.C.
read withs. 5(1J(d) of the Prevention of Corruption Act. After some
\\'itnesses were examined· by the prosecution, on a petition by the three
accused, the High Court quashed the charges and the proceedings on the
grounds. ( 1) that the officer who investigated the case was not competent
to do so; (2) that the offences were non-eognizable and hence the Special
Judge could not take cognizance of them without sanction under s. 196A.
Cr.P.C.; and (3) in view of the enormous length of time that elapsed
between the date the registration of the case and the examination of the
\\'itness~s (about 4! years), to proceed further with the case would be an
abuse of the process of Court causing harassment to the accused.
Allowing the appeal to this Court,
HELD; (I) (a) Under s. 5A of the Prevention of Corruption Act,
before it was amended in 1964, no officer below the rank of Deputy Supe~
rintendent of Police could investigate into .offences
punishable
under
Ss .. 161, 165, 165A l.P.C., or under s. 5 of the Prevention of Corruption
Act, without the orders of a Presidency Magistrate or the Magistrate First
Class.
Where an offence is committed in more than one place the order
of every Magistrate within \Vhose jurisdiction the offence or part of the
offence was committed was not necessary to enable the investigation to be
carried on.
All that is necessary is that the
~fagistrate who makes the
order under s. 5A should have territorial jurisdiction over the place where
any part of the offence took p1ace.
In the present case; the offence of
conspiracy was aileged to h.ave been committed both at Tejpur as well as
at Gauhati and the Inspector concerned had obtained the order Of the First
Class Magistrate, Tejpur.
[821H; 822A-C]
Chinnappa v. State of Mysore, A.LR. 1960 Mysore 242, Chatterjea v.
Delhi Special Police Establish111ent I.L.R. 1969 Assarn and Nagaland 275
and Union of India v. B. N. Ananthdpadn1anabbiah, A.LR.
1971
S.C.
1836, referred to.
(b) The High Court expressed doubt whether the order of the Magis·
trate of Tejpur was a genuine one.
If he had any such doubt it was the
Juty of the Judge to have gone into the matter thoroughly and satisfied
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UNION v. I. c. LALA (Alagiriswami, J.)
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himself whether the order· was genuine or not, and given a categorical
finding on the matter. There should have been no room allowed for any
doubt, or 5uspicion of any underhand
dealing or unfair conduct, in · a
matter of this kind. [823A-Cj
(2) Under Schedule II of the Criminal Procedure Code offences under
Ss. 161 to 165, I.P.C. and offences punishable with imprisonment for life
or impri"onment o'f 7 years and up\vards are shown as cognizable offences.
Under s. 5(2) of the Prevention of Corruption Act the sentence may extend to 7 years.
Therefore, an offence under s. 5 of the Prevention of
Corruption Act is a cognizable offence.
The words 'notwhhstanding any·
thing .contained in the Code of Criminal Procedure", in· the section merely
carve out a limited exemption from the provisions of Criminal Procedure
C

## Text

UNION OF INDIA
v.
MAJ. I. C. LALA ETC. ETC.
March 29, 1973
[A. ALAGIRISWAMI, I. D. Dl!A AND C. A. VAID!ALINGAM, JJ;}
Indian Penal Code (Act 45 of 1860), Ss. I2()B, 420 and 511, Preven·
tion of Corruption Ac; (2 of 1947), s. 5(1)(d), 5(2) and 5A, Criminal
law Amendment Act, 1952 Ss. 6 and 7(3) Code of Criminal Procedure
Act 5 of 1898), Ss. 196A, 235 and 239-0fjence committed at more than
one place-Order of which magistrate necessary--Cognizable and noncognizab/e offences-Crit'erion-Jurisdiction to try non-Government
sel'~
vant with Governnient servants.
Practice-Duty of court to decide on genuineness of sanctfion.
Two army officers and a businessman were put up for trial before the
Special Judge under the Criminal Law Amendment Act, 1952.
They
\\·ere all charged with offences of conspiracy under s. J 20B, I.P.C. read
with s. 5(2) of the Prevention of Corruption Act and s. 420 I.P.C. The
businessman was charged under s. 42() and ss. 420 and 511, l.P.C. The
two army officers were also charged with the offences under s. 420 I.P.C.
read withs. 5(1J(d) of the Prevention of Corruption Act. After some
\\'itnesses were examined· by the prosecution, on a petition by the three
accused, the High Court quashed the charges and the proceedings on the
grounds. ( 1) that the officer who investigated the case was not competent
to do so; (2) that the offences were non-eognizable and hence the Special
Judge could not take cognizance of them without sanction under s. 196A.
Cr.P.C.; and (3) in view of the enormous length of time that elapsed
between the date the registration of the case and the examination of the
\\'itness~s (about 4! years), to proceed further with the case would be an
abuse of the process of Court causing harassment to the accused.
Allowing the appeal to this Court,
HELD; (I) (a) Under s. 5A of the Prevention of Corruption Act,
before it was amended in 1964, no officer below the rank of Deputy Supe~
rintendent of Police could investigate into .offences
punishable
under
Ss .. 161, 165, 165A l.P.C., or under s. 5 of the Prevention of Corruption
Act, without the orders of a Presidency Magistrate or the Magistrate First
Class.
Where an offence is committed in more than one place the order
of every Magistrate within \Vhose jurisdiction the offence or part of the
offence was committed was not necessary to enable the investigation to be
carried on.
All that is necessary is that the
~fagistrate who makes the
order under s. 5A should have territorial jurisdiction over the place where
any part of the offence took p1ace.
In the present case; the offence of
conspiracy was aileged to h.ave been committed both at Tejpur as well as
at Gauhati and the Inspector concerned had obtained the order Of the First
Class Magistrate, Tejpur.
[821H; 822A-C]
Chinnappa v. State of Mysore, A.LR. 1960 Mysore 242, Chatterjea v.
Delhi Special Police Establish111ent I.L.R. 1969 Assarn and Nagaland 275
and Union of India v. B. N. Ananthdpadn1anabbiah, A.LR.
1971
S.C.
1836, referred to.
(b) The High Court expressed doubt whether the order of the Magis·
trate of Tejpur was a genuine one.
If he had any such doubt it was the
Juty of the Judge to have gone into the matter thoroughly and satisfied
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UNION v. I. c. LALA (Alagiriswami, J.)
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himself whether the order· was genuine or not, and given a categorical
finding on the matter. There should have been no room allowed for any
doubt, or 5uspicion of any underhand
dealing or unfair conduct, in · a
matter of this kind. [823A-Cj
(2) Under Schedule II of the Criminal Procedure Code offences under
Ss. 161 to 165, I.P.C. and offences punishable with imprisonment for life
or impri"onment o'f 7 years and up\vards are shown as cognizable offences.
Under s. 5(2) of the Prevention of Corruption Act the sentence may extend to 7 years.
Therefore, an offence under s. 5 of the Prevention of
Corruption Act is a cognizable offence.
The words 'notwhhstanding any·
thing .contained in the Code of Criminal Procedure", in· the section merely
carve out a limited exemption from the provisions of Criminal Procedure
Code in so far as they limit the- class of_ persons who are competent to
investigate, and to arrest without a warrant. The mere fact that under
·the Act certai,n restrictions are placed as to the officers who are competent
to investigate into the offences mentioned in s. SA would not make those 1
offences any the less cognizable. Therefore, the offences under s_ 161,
165 and 165A of the l.P.C. and s. 5, Prevention of Corruption Act, are
·cognizable offence!;i and there is no question of_ their being cognizab~ i'_[
'investigated· by- a Deputy ·Superintendent of Police and non-cognizable
\\·hen investigated by an· Inspector of Police; nor can there be any question
of these offences being cognizable if --investigated under s. 156, Cr.P.C.
but not when investigated under s_ SA, Prevention of Corruption Act . It
is illogical to say that offences would be cognizable in certain circumstances and nori-cognizable in certain other circumstances. Therefore, the
need for a sanction under s. 196A, Cr.P.C. does not arise.
[824A-H;
815A-D; 827]
Uni.on of India v. B. N. AnanthapadmGnabhiah, A.I.R . .1960 Mysore
242, Uni@n of India v. Mahesh Chandra, A.I.R. 1957 Madhya Bharat
E
43 and Public Prosecutor v. Sheikh Shariff, A.LR. 1965 A.P. 372, referred
to.
'
Taj Khan v. The Stare, A.I.R .. 1956 Rajasthan 37, Ram Bijhuma/ v.
The State, A.LR. 1958 Bombay 125 and Gulabsingh v. State, A.I.R. 1962
Bombay 263, approved.
· . · ·
. •
. G. K. Apte. v. U~io~ of: India, A.I:R. 1970. Assam & Nagal~~d ·43,
F
disapproved.
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(3) The need to order re-investigation or to begin the trial° again after
the sanction u:ider s_ 196A is _·obtained, and the consequent inordinate
<lelay and harassment of the officers concerned; do not arise at all. Hence,
there is no questi~n of quashing the charges on that ground. [827G-H] ·
(4) Under s. 6 and 7(3) of the Criminal Law Amendment Act, 1952,
and Ss. 235 and 239, Cr.P.C. ·the businessman (private individual) ·and
the two army officers, (public servants) could be tried together. [829ACC]
The State of Andhra Pradesh v. Kandimalla Suhbaiah & Anr. [19621
1 S.C.R. 194, followed.
.
·
.
.
CRIMINAL APPELLATE JuRISDSCTION: Criminal Appeals.Nos.
161 to 163 of 1970.
__
· .
.
. Appeals by certificate from the judgment and order dated
May 23, 1969 of the Assam and Nagaland High Conrt at Ganhati
in Cr. Rev. Nos. 36, 39 and 46 of 1968.
·
1!20
SUPREME COURT REPORTS
(1973] 3 S.C.?..
D. Mookherjee, A vtar Singh, G. Das, S. P. Nayar and R. N.
Sachthey, for the appellant.
Nuruddin Ahmad and N. N. Keswani, for the respondent.
Harbans Singh, for the respondents.
A
V. M. Tarkunde, A. L. Arora and D. D. Sharma, for the resB
pondent.
The Judgment of the Coul"l was delivered by
ALAGIRISWAMI, J.-Two o,f the appellants, Major Lala and
Lt. Col. Khanna are Army officers and the appellant in the 3rJ
.appeal, Gupta, is a businessman of Gauhati.
All of them were
put up for trial b.,fore 1he Special Judge appointed under
tl:~
Criminal Law Amendment Act 1952.
One charge which WJ-'
common to all the three of them was that between June 1962
and January 1963 all of them agreed to commit or cause to be
committed offences under section 5(2) of the Prevention of Corruption Act, and of chealing punishable under section 420 of the
Indian Penal Code, and 1hese offences having been committed in
pursuance of a conspiracy were punishable under section 120B
o.f the Indian Penal Code read with section 5 (2) of the Prevention
of Corruption Act and section 420 I.P.C. Mr. Gupta. the businessman was charged under section 420 I.P.C. as well as section 511
read with section 420 I.PcC The two Army officers were al'o
charged with offences under section 420 read with section 5 (I) ( d)
Qf the Prevention of Corruptioll Act.
The case was filed before !he Special Judge on 28-6-1963
and the charge was framed on 13-2-65. After about 18 out of
the 52 witnesses cited by the prosecution had been examined the
three respondents filed pe1itions under section 56JA read with
section 439 of Code of Criminal Procedure before the High Court
of Assam & Nagaland on 28-3-68, 1-4-68 and 10-4-68 respectively
lor quashing the charges. A learned Single Judge allowed these
petitions on 23-5-1969 and q11ashed the charges and the proceedings
before !he learned Spedal Judge. He did this on three
,grounds :
(I) that the officer who investigated the case was not
competent to do so;
(2) that the offences that were ¢ing tried were ,noncognizable and the Special Judge could not have
taken cognizance of them without sanction under
section 196A of the Code of Criminal Procedure, and
( 3 ) tha1 in view of the enormous length of time bet-
'Yeen 2-2-63, the date on which the case was
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UNION v. I. c. LALA (Alagiriswami, I.)
821
registered and 1-4-68, upto which date some witness had been examined, the last witness having been examined on 15-1-67, it entailed undue harassment to the accused persons and the ..
proceedings have to be quashed to prevent fur:
ther harassment, abuse of the process of the court
and vexation to the accused persons.
These three appeals have, therefore, been filed by the Union of
India by certificate grantd by the High Court.
We shall first oi all deal with the question whether the officer
who investigated into these cases was not properly authorized to
do so. The officer was an Inspector of the Delhi Special Police
Establishment. Under section 5A of the Prevention of Corruption
A~t, btefore it was amended in 1964, no officer below the rank of
the Deputy fpperintendent of Police could investigate into offences
punishable under sections 161, 165 and 165A of the Indian Penal
Code or under section 5 of the Prevention of Corruption Act
without the order of a Presidency Magistrate or a Magistrate of
the First Class.
In this case the Inspector concerned had obtained
the order of the First Class Magistrate of Tezpur.
The argument
before the High Court, which was accepted by the learned Judge,
was that as the offences of conspiracy were alleged to have Geen
committed both at Tezpur as well as at Gauhati, the investigation
based on the order of the Tezpur Magistrate alone was not a
proper one. In other words, the.. argument was thut unless
the Inspector had been authorized to investigate not only by
the First Class Magistrate of Tezpur but also by the First Class
Magistrate of Gauhati district, he could not have done so.
The
learned Judge referred to and relied upon the decision in Chinnappa v. State of Mysore('). It was decided in that case that any
First Class Magistrate appoirrte\I in a district can issue orders under
section 5A of the Prevention of Corruption Act for investigation
of a case. From this the learned Single Judge drew the conclusion
that in respect of an offence said to have been committed at
Gauhati as well as at Tezpur the order oi the Tezpur Magistrate
was noti enough. He also relied upon the decision of the High
Court of Assam and Nagaland in Chatterjee v.
Delhi Special
Police Establishment( 2 ), This decision has been upheld by this
Court in Union of India v. B. N. Ananthapadmanabhiah(8 ). But
that was a case of a Delhi Magistrate sanctioning an investigation
of offences committed in Assam and it was held that such an order
was not valid.
That decision is no authority for the propositiorr
that where an offence is committed in more than one place the
order of every Magistrate within whose jurisdiction the offence
or part of the offence was committed was necessary in order to·
(1) A. I. R. 1960 Mysore 242.
(2) J. L. R. 1969 Assam & Nagaland 275.
()) A. I. R. 1971 S. C. 1836.
822
SUPREME COURT REl'OR TS
[1973] 3 s.c.R.
enable the investigation to be carried on. All that is necessary is
that the Magistrate who makes the order under section 5A should
~ave territorial ,iurisdiction over the place where any part of the
ingredients of the offence took place.
That criterion is amply
satisfied in this case. On principle also such a contention seems
to be devoid of any. substance. The offence o.f conspiracy or fo:·
that matter any ather offence might consist of a series of 11cts and
incidents spread over the whole country. Very often one conspirator or one of the offenders might not have even met the other conspirator or offender.
To accept this contention would be to hold
that the Police should go to every Magistrate within whose jurisdiction some part of the conspiracy or one of the ingredients of
the offence has taken place. We have no hesitiition in rejecting it.
He also seemed to have had some doubt as to wtiether the
order of the Magistrate of Tezpur produced before him was a
genuine one. To say the least, the attitude of the learned Judge
is most surprising. To put it in his own words :
"It does not appear that any order of a Magistrate
form part of the record. But at the time of hearing,
such an order was placed before me on behalf of the Prosecution. The application on which the order is said
to have been passed by the Magistrate appears to have
l*en addressed to the Court of the Magistrate first class
at Te2'Pur, wherein it was stated that for preoccupation of
the Deputy Superintendent of Police, th~ investigation
was sought to be made by an Inspector of Police. The
petition is unnumbered undated. What appears curious is
that although the application was made before a Magistrate of the first class, the order passed is supported by a
seal of the District Magistrate, Darrang. The order of
the Magistrate runs as follows :-
"Paper and F.I.R. seen. Shri H. B. D. Baijal,
Inspector is permitted to investigate the case."
There is an illegible signature with date 4-2-63 and
below the signature the official designation has not .been
stated. It appears that no order-sheet of the Magistrate
has been produced in this regard and in above circumstances, it cannot be unequivocally said that this document was obtained in due course of business in compliance with section SA of the Prevention of Corruption
Act. Even assuming that the order is free from doubt,
learned counsel appearing for the petitioners has urged
before me that since the venue of the offences has been
clearly stated in the charge, the pennission given by the
Magistrate for investigation of the offences at Gauhati
is not valid."
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UNION v. I. c. LALA (Alagiriswami, J.)
823
If he had any doubts about the genuineness of the order of sanction
it was his duty to have gone into 'the matter thoroughly and satisfied
himself whether the order was genuine or not. It was his duty
to have given a categorical' finding regarding the matter.
There
should have been no room allowed for any doubt or suspicion of
any ·underhand dealing and unfair conduct in a matter ol this
kind. It was even alleged on behalf of the respondents that an
order was produced for the first time before the learned Judge
and it was taken back by the prosecution. If that was so it proves
a woeful lack of care on the part of the learned Judge. He should
have retained th~ order on file and called for the necessary records
and information in order to find out whether the order was a
genuine one or not. We have 1*[ore us the order_ of the Superintendent of the Special Police Establishment dated 2-2-63 entrusting
the inve~tigation to Inspector Baijal and directing him to obtain
the necessary permission from a competent Magistrate for doing
so. We have also been shown the papers relating to the prosecution, papers given •to the accused under section 173 of the Code
of Criminal Procedure.
Item 71 of those papers relates to the
order of san~tion dated 4-2-1963 given by the Magistrate of Tezpur
authorizing the Inspector of the S.P.E. to investigate. Thus, there
is no doubt at all that Inspecor Bai.ial had been authorized to in·
vestigale into this case. It only shows rather superficial way the
learned Judge chose to deal with this matter.
The next question is whether offences under section 161, 165
and 165A of the Indian Penal Code and section 5(2) ol the Prevention of Corruption Act are cognizable or non-cognizable
offences.
This becomes important for the purpose of deciding
whether a sanction under section 196A is necessary. The sanction
necessary under section 6 of the Prevention of Corruption Act
and section 197 of ·the Code of Criminal Procedure has been
accorded by the Government of India. What was contended by
the respondents before the High Court and was accepted by that
Court was that these offences being non-cognizable offences a
sanction under section 196A(2) is necessary and that prosecution
without such sanction is bad. Cognizable offence is
defined in
~ection 4(1)(f) of the Code of Criminal Procedure as an offence
for which a police officer, within or without the presidency towns,
may in accordance with the second schedule, or under any law
for the time bieing in force, arrest without warrant. The argument
which appealed to the learned Judge of the Higli Court was that
as under section SA of the Prevention of Corruption Act no officer
below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offences
punishable under section 161, 165 or 165A I.P.C. and section 5
of the Prevention ol Corruption Act, they were not offences for
which any police officer can arrest without warrant, and therefore,
824
SUPREME COURT REPORTS
[1973] 3 S.C.R.
they are not cognizable offences. The same argument was repeated
before this Court by Mr. Tarkunde, emphasising that "a police
officer" means "any police officer" and as any police officer cannot,
under section SA of the Prevention of CorruJl'lion Act, arrest
wilhout warrant but only offipers of and above ~he rank of Dy.
Superintendent, the offences mentioned in that section are noncognizabj.e offences. If we pursue the same line of argument and
look at the definition of non-cognizable offence in section 4( 1 )(n)
which defines non-cognizable offence as an offence for which a
police officer, within or withoU't a Presidency-town, may not arrest
without warrant, H might mean that as these are cases where a
police officer of the rank of Dy. Superintendent and above can
arrest without warrant these are not non-cognizable offences either.
How can there be a case which is neither cognizable nor-cognizable ? It was sought to be argued tha! these offences would be
cognizable offences when they are investigated by the
Deputy
Superintendents of Police and suprior officers and non-cognizable
when they are investigated blY officers below the rank of Deputy
Superintendents.
We fail to see how an offence would be cognizable in certain circumstances and non-cognizable in certain other
circumstances. The logical consequences of accej>ting this argument would be that if the offences are investigated by Deputy
Superintendents of Police and superior officers no sanction under
section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy
Superintendents o.f Police.
One supposes the argument also implies that the fact that an officer below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of
section SA would not make any difference to this situation. We
do not consider that this is a reasonable interpretation to place.
Under Schedule II of the Code of Criminal Procedure offences
under sections 161 to 165 of the Indian Penal Code are shown as
cognizable offences. At the end of that Schedule offences punishable with death, imprisonment for lite or imprisonment for 7 years
and upwards are also sh6wn as cognizable offences. Under section
5 (2) of the Prevention of Corruption Act the sentence may extend
to seven years. Therefore, an offence under section 5 of the Prevention of Corruption Act is according to the provision in Schedule
1I to the Code o( Criminal Procedure a cognizable offence.
Therefore,· the mere fact that under the Prevention of Corruption
Act certain restrictions are placed as to the officers who are competent to investigate into offences mentioned in section 5A would
not make those offences any the less cognizable offences.
The
words "notwithstanding anything corrtained in the Code of Crimi·
nal Procedure" found at the beginning of section SA( 1) merely
carve out a limited exemption from the provisjons of the Code of
Crir.1inal Procedure in so far as they limit the class of persons who
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UNION v. I. c. LALA (Alagiriswami, /.)
825
are competent to investigate into offences mentioned in the section
and to arrest without a warrant. It does not mean that the whole
of. the Code of Criminal Procedure, including Schedule Inhereof,
is made inapplicable. Under section 5 of the Code of Criminal
Procedure all offences under the Indian Penal Code shall or> investigated, inquired into, tried, and otherwise dealt with according
to the provisions therein contained. Also, all offence> und;ir any
other law (which would include the Prevention of Corruption
Act) shall be investigated, inquired into, tried, and otherwise dealt
with according to the same provisions but subject to any enactment for the time hieing in force regulating the manner or place
Cl[ inwstigating, inquiring into, trying or otherwise dealing with
such offences.
Section 5A of the Prevention of Corruption Act
should be related to this provision in section 5 (2) of the Code of
Criminal Procedure, which limits the application of the provisions
Of that Code to be subject to any enactment for the time being in
force regulating the manner or place of investigating, inquiring
into, trying or otherwise dealing with such offences.
TI1e only
change which section 5A of the Prevention of Corruption Act
makes is with reisard to officers competent to investigate and arrest
without warrant, in all other respects the Code of Criminal Procedure applies and, therefore, there is no doubt that all offences
mentioned in section 5A of the Prevention of Corruption Act are
cognizable offences.
The Assam High Court seem~ to have taken a line of its own
in this matter. In G. K. Apte v.
Union of India('1)
curiously
enough the Bench, of which the learned Judge who dealt with
this case was a member, took the view that though an offence
under section 161 is a cogni:z:able offence, if investigations were
made under section 156 of the Code of Criminal Procedure. there
would be no need for a sanction under section 196A of the Code
of Criminal Procedure, and there can be a conviction under section
161 of the Indian Penal Code, but if the investigation is mad~
under section 5A of the Prevention of Corruption Act it will b~
an investigation into a non-cognizable offence and there should be
a sanction under section 196A for the trial following such investigation. For this conclusion the decision of this Court in H. N.
Rishbud & Inder Singh v. The State of Delhi(') was relied upon.
We can see nothing in that case to support this conclusion.
Nor
are we able to see how if the investigation into an offence of misconduct punishable under section 5 (2) is done by a police officer
of high rank the offence is cognizable and if inves'tigated by an
officer of a lower rank it is non-cognizable.
That cannot be a
proper criterion for deciding whether an offence is cognizable or
non-cognizable.
Unless there are clear and compelling reason>
(I) A.I. R.1970 Assm & Nagaland 43.
5-L 797Sup.C. I. /73
(Cl A. I. R. 1965 S. C. 196.
826
SUPREME COURT REPORTS
[1973] 3 S.C.R.
to hold otherwise the division of offences given in the Code of
Criminal Procedure as cognizable and non-cognizabje should be
given effeot to.
When the same Code makes sanction und~r s.
196A necessary for trial of non-cognizable offences it clearly contemplates non-cognizable offences as defined in the Code.
Ther~
is no justification for relying upon extraneous considerations mid
far-fe_tched reasoning in order to get over !he effect of these pro-
• •
l·
vmons.
We may now refer to certain decisions oJ' various High Courts
on this point. In Taj Khan v. The State(') it was held :
"The fact that the power to investigate or to arrest
without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the
purpose of safeguarding public servants from harassment at !he hands of subordinate police officers) under
the proviso to S. 3 of the said Act cannot lead to the
conclusion that such offence ·is non-cognizable."
In Ram Rijhumal v. The State(') it was held :
"The provisions of S. 3, Prevention of Corruption
Act can only have one meaning, and the meaning is that
an offence under S. 16SA of the Penal Code has to be
deemed to be a cognizable. offence for the purpose of
'the Code of Criminal Procedure. It is only (1ecause the
Legislature enacted S. S-A of the Prevention of Corruption Act that, so far as the Presidency town of Bombay
was concerned, no police officer below the rank of a
Superintendent of Police could in the case cif an offence
under S. l 6S· A of the Penal Code, investigate it without
the order of a Presidency Magistrate.
There is nothing
in the language of S. S-A which would suggest that an
offence under S. 16S-A oJ' the Penal Code is not to be
treated as a cognizable offence."
In Gulabsingh v. State(') it was held that:
"Offencjl under S. 161, I.P.C. is a
cognizable
offence.
Its nature is not affected by either S. 3 or S.
SA of the Prevention of Corruption Act. The requirement that in a cognizable offence, a police officer should
be able to arrest without warrant, is without any limitation and section SA cannot be split up to mean that an
offence can be cognizablle in reference to one officer and
nO! in reference to another."
( 1) A. I .R. 1956 Rajasthan 37.
(3) A. I .R. 1962 Bombay 263.
(2) A. I .R. t958 Bombay 125.
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UNION v. I. c. LALA (Alagiriswami, J.)
827
The learned Judges specifically dissented from the decision in
Union of India v. Mahesh Chandra(1). In Public Prosecutor v.
Shaik Sheriff(') it was held that "these offences cannCYt be treated
as non-cognizable offences when investigated by an officer below
the rank of Del?uty Superintendent of Police simply on the ground
that such investigation cannot be done without the order of a Presidency Magistrate or a Magistrate of th~ First Class. In the same
way, offences under section 5 of the Act cannot be treated as
non-cognizable even when investigated by a low rank
officer.
Thus, the provision .in S. SA is of the nature of a special provision
which applies to offences specified therein which are cognizable
offences including 1hose under section S under all circumstances."
They also referred to the deciSion in Union of India v. Mahesh
Chandra (supra) to the effect that an offence under S. 161 l.P.C.
and under sub. s. 2 of S. S, Prevention of Corruption Act is cognizable so far as officers of the rank of a Deputy Superintendent o4'
Police and above are concerried, but so far as the officers .below
the rarik of Deputy Superintendent of Police are concerned the
said ,11Iences are non-cognizable in so far as they cannot investiga1e them without the permission of a Magistrate of the
Fil ;t
Class, and held that :
"the learned Judges only intended to emphasise the
provision in S.S-A and chose to refer to it as a noncognizable aspect of the offences comprise.ct in the Act
and to describe that aspect also as non-cognizable for
the limited purpose of the provision in S. S-A."
Thus, the preponderance of opinion. of the various High CouPts
is in favour of the view we are taking.
We are, therefore, clearly of opinion that the offences under
sections 161, 16S and 16SA of the Indian Penal Code and section
5 of 1he Prevention of Corruption Act are cognizable offences and
there is no question of their being cognizable if investigated by a
Deputy Superintendent of Police and non-cognizable when investigated by an Inspector of Police. Nor can there be any question
of those offences being cognizable if they are investioated under
section 1S6 of the Cr. P.C. but not when investigated in accordance with the provisions of section SA of the Prevention of Corruption Act.
The question, therefore, of the need for a sanction
under section 196A does not arise.
Consequently, the need to
order re-investigation or to begin the trial again after the sanction
under section 196A is obtained, and the consequent inordinate
delav and harassment of the officers
concerned,
reasons that
weiihed with the learned Single Judge for quashing the charges,
does not arise. It may incidentally be mentioned that the respondents took nearly three years before they moved the High
(1) A. I. R. 1957 Madhya Bharat 43.
(2) A. I. R. 1965 A. P. 372.
828
SUPREME COURT REPORTS
[1973] 3 S.C,R.
Court for quashing the charges and are, thus, to a considerable
extent responsible for the delay.
On hlehalf of Mr. Gupta it was argued that he cannot be tried
along with the two Anny officers. Under section 6 of the Criminal
Law Amendment Act 1952 the Special Judge may try any conspiracy to commit or any attempt to commit or any abetment of
any of the offences punishable under section 161, 165 or 165A
of the Indian Penal Code or sub-section ( 2) of section 5 of the
Prevention of Corruption Act, and under sub-section ( 3) of section
7 of the same Act a special judge, when trying any case, may
also try a.ny offence other than an offence specified in section 6
with which the accused may, under the Code of Criminal Proce·
dure, 1898, be charged at the same trial. Under section 235 of
the Code of Criminal Procedure if in one series of acts so connected
together as to fonn the same transaction, more offences than one
are committed by the same person, he may be charged with, and
tried at one trial for, every such offence, and under section 239
persons accused of the same offence committed in the course of. the
same transaction, as well as persons accused of an offence and
persons accused of abetment, or of an attempt to commit such
offence may be charged and tried together. In The State of
Andhra Pradesh v. Kandimalla Subbaih & Anr.(1), this Court
observed :
"No doub.t, the offence mentioned in charge No. 1
is alleged to have been committed not by just one person
but by all the accused and the question is whether aJI
these persons can be jointly tried in resoect of all these
offences.
To this kind of charge s. 239 would apply.
This section provides that the following persons may be
charged and tried together. namely :
( 1 ) persons accused of the same offence committed
in the course of the same transaction;
(2) persons accused of an' offence and persons accus·
ed of abetment or an attempt to commit such
an offence;
(3) persons accused of different offences committed
in the course of the same transaction.
Clearly, therefore, all the accused persons could be
tried together in respect of all · the offences now comprised in charge No. 1."
In that case the first accused was a public servant and the other
accused were private individuals to whom the first accuoed was
alleged to have sold transport permit books intended to be issued
(I) [1962] I S. C. R. 194.
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Ul<ION v. I. c. LALA (Alagiriswami, I.)
829
to Central Excise Officers for granting permits to perSQns applying
bona fidie for licences to transpoit to1*tcco.
This Coun also
pointed out that "sub-s. (3) of s. 7 provides that when trying any
case, a special judge may also try any offences other than an
offence specified in s. 6 with which the accused may under the
Code of Criminal Procedure, 1898 be charged at the same trial,
and clearly, therefore, accused no. 1 could be triec;I by the Special
Judge for offences under s. 12()B read with ss. 466, 467 and 420
I.P.C., and similarly the other accused who are said to have
abetted these offences could also be tried by the Special Judge."
There is, therefore, no objection to Mr. Gupta being tried along
with the two Army officers.
Though in the revision petitions filed before the _High Court
the question as to whether on the evi<!ence produced before the
Special Judge the offences with which the respondents had been
charged coulq be said to have been prima facie established, was
raised, the learned Single Judge has not dealt with that question
apparently because it was not argued before him.
We do not,
therefore, propose to say anything about the merits of the case.
It is not necessary to refer to the decision in Madan Lal v.
state of Punjab(1 ) and Bhanwar Singh v. Rajasthan(2 ) which are
relied upon on behalf of the appellants in the view that we have
taken that all the offences with which the accused are charged
are cogn.izable offences, and therefore, the
question whether
charges which requ.ire sanction under s. 196A could be tried
alongwith charges which- did not require such sanction and the
entire charges are vitiated for want of sanction, as held by the
learned Single Judge, does not arise.
The appeals are allowed and the order of the learned Single
Judge is set aside.
The Special Judge will now proceed to deal
with the cases aiid dispose of them as expeditiously as possible as
the matter has been pending for a long time.
V.P.S.
Appeals allvwed.
(I) [1967] 3 S. C. R. 439.
(2) [1968] 2 S. C. R 528.