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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: BHAGWANT KISHORE JOSHI

DATE OF JUDGMENT: 17/04/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR  221            1964 SCR  (3)  71  CITATOR INFO :  R          1968 SC1292  (5,7)  E&R        1970 SC1396  (6,7)  R          1984 SC 718  (21)  RF         1991 SC1260  (54)  AFR        1992 SC 604  (81)

ACT: Criminal  Trial--Investigation  by Police Officer below  the rank of Deputy Superintendent of Police--Previous permission of Magistrate not  obtained--If  proper  investigation--Such omission  if vitiated the  trial--Prevention  of  Corruption Act, 1947 (2of 1947),  s.  5A--Code  of Criminal  Procedure, 1898 (Act 5 of 1898), ss. 4 (1), 154, 157.

HEADNOTE:     The  respondent  was  a booking   clerk.   He  committed criminal  breach of trust in respect of Rs. 49/1/0.  On  the receipt    of    the     above    mentioned      information Superintendent  of Police directed  M, a  Sub-Inspector   of Police,  to  make an enquiry.  Thereafter  M  verified   the allegations  contained in the information and  examined  the relevant railway records. On 72 the  basis  of  the information collected,  he  submitted  a report.    M made the first stage of  investigation  without obtaining   the  order  of  the  Magistrate,   1st   Class.1 Subsequently,  M  obtained permission of a  Magistrate,  1st Class, to investigate into the 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 mainly 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, 1st Class,  under s. 5A of the Act, was an "investigation" within the  meaning

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of s. 4 (1) of the code  of Criminal Procedure.  M  received through  the report a detailed information  of  the  offence alleged 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 (1) 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,  1st Class,  to investigate into the offence alleged to have been  committed by  the accused and in effect there was practically de  novo 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 Inder Singh v. State at Delhi, [1955] 1 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  Kerala v.M. ,1. Samuel I.L.R. 1960 Kerala 783, referred to. 73       Mudholkar   J.--In  fact  there  was  no  defect.   or irregularity in conducting the first stage of investigation. Investigation,  in substance, means collection  of  evidence relating to the commission of offence for establishing,  the accusation  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. Rishbud and Inder Singh v. State of Delhi [1955]  1 S.C.R. 1150, relied on.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION : Criminal  Appeal  No. 171 of 1961.     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.C. Mathur and C.P. Lal, for the appellant. T.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  one  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

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committed criminal 74. 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 SubInspector  Mathur,  who under the  law  was 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 contravention 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 acquitted 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  information  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 was 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

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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  report to   the   Superintendent   of   Police,   Special    Police Establishment,  stating  that he  had  received  information through a source that 76 the accused was in the habit of misappropriating  Government money,  giving 7 instances of the acts of  misappropriations committed  by  him  and  informing  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),  Lucknow, for  permission  to investigate the case.   On  October  19, 1956,  the  said Magistrate permitted  him  to  investigate. 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 recording 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 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. Rishbud and Inder Singh v. The State of  Delhi (1),  described the procedure prescribed  for  investigation under Ch. XIV of the Code of Criminal Procedure thus:               "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) 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

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             trial, and (5) Formation of the opinion as  to               whether  on the material collected there is  a                             case  to place the accused before a  M agistrate               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 obtained 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 information received by the said officer was not vague,  but contained    precise    particulars   of   the    acts    of misappropriation committed by 78 the  accused.   On April 26, 1956 he sent a  report  of  the information  received  to  the  Superintendent  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 SubInspector 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   acts 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 investigation 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. basis  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 (1) A.I.R. 1915 Mad. 312. (2) A.I.R. 1958 Mad. 368, 371-372. 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

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             is recorded and when investigation starts." This graphic description of she 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 (1) I. L. R, 1960 Kerala 783. 80 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               officer below the rank--                        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  said provision  and others were considered by this Court  in  The State of Madhya  Pradesh v. Mubarak Ali (1).  It was  stated therein that s. 5A was inserted in the Act by Act 59 of 1952 to protect (1) [1959] supp. 2 S. C. R. 201. 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

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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.  Thereafter on October  8,  1956.  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   J establishment.   The  Superintendent of Police in Eorwarding that application endorsed that statement nd further  pointed out that he was busy with the 82 supervision  of  other important  cases  and  administrative duties.  The Magistrate on October 19, 1956, on the basis of the  said  facts gave the necessary 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 learned 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

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investigation  free from the  statutory safeguards 83 designed  to prevent the abuse of police powers,  to  secure the  necessary  information  and  thereafter  to  take   the requisite permission of 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 has 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 84 committed  by  the  police  in  the  first  stage  of   ’the investigation,     The High Court st:t: 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  provisions 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. MUDHOLKAR  J.--I   have perused  the .judgment  prepared  by Subba  Rao, 3., 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 sentenced  as  proposed by him.  I also 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

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in the investigation in this case.     For  the  purpose of dealing with this point it  is  not 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 have a bearing upon this point. 85     Upon  receiving   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 misappropriating   Government money, the  Superintendent  of police,   Special  Police  Establishment    directed    Sub- Inspector   Mathur  to verify the truth of  the  allegations made  against the respondent.  Mathur thereupon went to  the Saharanpur  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  investigate  into  the  case   as required  by s. 5A of the Prevention of Corruption  Act  and then proceeded to investigate the ease.  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 Act.  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. Rishbud and lnder Singh  v. The  State  q/Delhi  (1),  Ibis  Court  has  described   the procedure for investigation as follows:               "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               consists  of  (a) the examination  of  various               persons (including the               (1) [1955] 1 S.C.R. 1150.               86               accused)  and  the  reduction  of  the   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 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

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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  committed  and to. various other things. But  the  main object  of investigation being 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 m the  Code, express or implied, I am of opinion that it is open 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. 88