14 December 1954
Supreme Court


Case number: Appeal (crl.) 95 of 1954






DATE OF JUDGMENT: 14/12/1954


CITATION:  1955 AIR  196            1955 SCR  (1)1150

ACT: Prevention of Corruption Act, 1947 (II of 1947), s. 5(4) and proviso to s. 3-Prevention of Corruption (Second  Amendment) Act,  1952  (LIX  of  1952),  s.  5-A-Whether  mandatory  or directory-Cognizance taken on a police report vitiated by  a breach of mandatory provisions -Legal effect thereof.

HEADNOTE: Held, that s. 5(4) and proviso to s. 3 of the Prevention  of Corruption  Act, 1947 (II of 1947) and the corresponding  s. 5-A of the Prevention of Corruption (Second Amendment)  Act, 1952 (LIX of 1952) are mandatory and not directory and  that an investigation conducted in violation thereof is illegal. If cognizance is in fact taken on a police report in  breach of  a  mandatory provision relating  to  investigation,  the results  which  follow  cannot  be  set  aside  unless   the illegality in the investigation can be shown to have brought about a miscarriage of justice. It  is  well-settled  that an illegality  committed  in  the course  of an investigation does not affect  the  competence and  the  jurisdiction  of the court  for  trial  and  where cognizance  of the case has in fact been taken and the  case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby When  any  breach of the mandatory  provisions  relating  to investigation  is brought to the notice of the Court  at  an early stage of the trial the Court will have to consider the nature  and  extent of the violation  and  pass  appropriate orders for such reinvestigation as may be called for, wholly or  partly, and by such officer as it considers  appropriate with  reference  to  the  requirements  of  s.  5-A  of  the Prevention of Corruption (Second Amendment) Act, 1952. Liverpool Borough Bank v. Turner ([1861] 30 L. J. Ch.  379), Prabhu  v.  Emperor  (A.I.R. 1944 P.C.  73)  and  Lumbhardar Zutshi v. The King (A.I.R. 1950 P.C. 26), referred to.




97 and 106 of 1954. 1151 Appeal  by Special Leave from the Judgment and  Order  dated the 24th August 1953 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal  Revision Nos.  109-D,  122-D  and 123-D of 1953 arising  out  of  the Judgment  and Order dated the 25th May 1953 of the Court  of Special Judge,Delhi, in Corruption Case No. 14 of 1954; from the  Judgment  and Order dated the 27th August 1954  of  the High  Court of Judicature for the State of  Punjab  (Circuit Bench, Delhi) in Criminal Miscellaneous No. 131-D of 1954. H.   J. Umrigar and Rajinder Narain, for appellant No. 1. C.   K. Daphtary, Solicitor-General of India (G.  N.  Joshi, P.  A.  Mehta  and  P.  G.  Gokhale,  with  him),  for   the respondent. 1954.  December 14.  The Judgment of the Court was delivered by JAGANNADHADAS J.-These are appeals by special leave  against the  orders  of the Punjab High Court made  in  exercise  of revisional jurisdiction, reversing the orders of the Special Judge, Delhi, quashing certain criminal proceedings  pending before himself against these appellants for alleged offences under  the Penal Code and the Prevention of Corruption  Act, 1947.   The  Special Judge quashed the  proceedings  on  the ground  that  the investigations on the basis of  which  the appellants  were being prosecuted were in  contravention  of the  provisions  of  sub-section (4) of  section  5  of  the Prevention  of Corruption Act, 1947, and hence illegal.   In Appeal No. 95 of 1954 the appellants are two persons by name H.N.  Risbud and Indar Singh.  In Appeals No. 96 and  97  of 1954  H.N.  Risbud above mentioned is  the  sole  appellant. These  appeals raise a common question of law and are  dealt with  together.   The  appellant Risbud  was  the  Assistant Development   Officer   (Steel)  in  the   office   of   the Directorate-General,   Ministry  of  Industry  and   Supply, Government  of India and the appellant Indar Singh  was  the Assistant  Project Section Officer (Steel) in the office  of the Direc- 1152 torate-General, Ministry of Industry and Supply,  Government of  India.   There  appear to be a  number  of  prosecutions pending  against  them  before  the  Special  Judge,  Delhi, appointed  under the Criminal Law Amendment Act., 1952  (Act XLVI of 1952).  We are concerned in these appeals with Cases Nos. 12,13 and 14 of 1953.  Appeals Nos. 95, 96 and 97 arise respectively   out  of  them.   The  cases   against   these appellants are that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus  firms and  that they actually obtained quota certificates, on  the strength of which some of the members of the conspiracy took delivery  of  quantities of iron and steel from  the  stock- holders  of these articles.  The charges,  therefore,  under which  the  various accused, including the  appellants,  are being prosecuted are under section 120-B of the Indian Penal Code, section 420 of the Indian Penal Code and section 7  of the  Essential  Supplies (Temporary Powers) Act,  1946.   In respect  of  such of these accused as are  public  servants, there are also charges under section 5(2) of the  Prevention of Corruption Act, 1947. Under  section  5(4) of the Prevention  of  Corruption  Act, 1947,   a  police  officer  below  the  rank  of  a   Deputy Superintendent  of Police shall not investigate any  offence punishable  under sub-section (2) of section 5  without  the order  of  a  Magistrate  of the  First  Class.   The  first



information  reports in these cases were laid in  April  and June,   1949,   but  permission  of  the   Magistrate,   for investigation as against the public servants concerned, by a police officer of a rank lower than a Deputy  Superintendent of Police, was given in March and April, 1951.  The  charge- sheets  in  all these cases were filed by such  officers  in August  and November, 1951, i.e. subsequent to. the date  on which  permission  as above was given.  But  admittedly  the investigation  was entirely or mostly completed  in  between the  dates  when  the first information  was  laid  and  the permission to investigate by an officer of a lower rank  was accorded.  It appears from the evidence taken in this behalf that such investigation was con-                             1153 ducted  not  by any Deputy Superintendent of Police  but  by officers  of  lower rank and that after the  permission  was accorded  little or no further investigation was made.   The question,  therefore,  that  has been raised  is,  that  the proceedings by way of trial initiated on such  charge-sheets are  illegal  and require to be  quashed. To  appreciate  the argument it is necessary to  notice  the relevant sections of the Prevention of Corruption Act,  1947 (Act  II  of  1947) (hereinafter referred  to  as  the  Act. Section 3 of the Act provides that offences punishable under section 161 or 165 of the Indian Penal Code shall be  deemed to be cognizable offences.  Section 4 enacts a special  rule of  evidence  against  persons  accused  of  offences  under section  161 or 165 of the Indian Penal Code,  throwing  the burden  of  proof  on the  accused.   Broadly  stated,  this section  provides  that if it is proved against  an  accused that  lie has accepted or obtained gratification other  than legal  remuneration, it shall be presumed against  him  that this  was  so accepted or obtained as a motive  or  reward., such  as  is mentioned in section 161 of  the  Indian  Penal Code.   Sub-sections (1) and (2) of section 5 create  a  new offence  of  "criminal misconduct in discharge  of  official duty" by a public servant punishable with imprisonment for a term  of  seven  years or fine  or  both.   Sub-section  (3) thereof  enacts a new rule of evidence as against  a  person accused of the commission of offences under section 5(1) and (2).   That rule, broadly stated,. is that when a person  so accused, or any other person on his behalf, is in possession of  pecuniary resources or property disproportionate to  the known  sources  of  his  income  and  for  which  he  cannot satisfactorily  account, the Court shall presume him  to  be guilty  of criminal misconduct unless he can  displace  that presumption by evidence.  The offence of criminal misconduct which  has been created by the Act, it will be seen,  is  in itself a cognizable offence, having regard to item 2 of  the last  portion  of  Schedule  11  of  the  Code  of  Criminal Procedure under the bead "offences against the other  laws". In the normal course, therefore, an investi- 1154 gation into the offence of criminal misconduct under section 5(2) of the Act and an investigation into the offence  under sections  161  and 165 of the Indian Penal Code  which  have been  made cognizable by section 3 of the Act would have  to be  made by an officer incharge of a police station  and  no order  of any Magistrate in this behalf would  be  required. But  the proviso to section 3 as well as sub-section (4)  of section  5  of the Act specifically provide that  "a  police officer below the rank of a Deputy Superintendent of  Police shall not investigate any such offence without the order  of a Magistrate of the First Class or make any arrest there for without  a warrant".  It may be mentioned that this Act  was



amended by Act LIX of 1952.  The above mentioned proviso  to section 3 as well as sub-section (4) of section 5 have  been thereby omitted and substituted by section 5-A, the relevant portion of which may be taken to be as follows:  "Notwithstanding anything contained in the Code of Criminal Procedure,  no  police officer below the rank  of  a  Deputy Superintendent  of Police (elsewhere than in the  presidency towns of Calcutta, Madras and Bombay) shall investigate  any offence  punishable under sections 161, 165 or 165-A of  the Indian Penal Code or under section 5(2) of this Act  without the order of a Magistrate of the First Class". This  amendment  makes  no  difference.   In  any  case  the investigation in these cases having taken place prior to the amendment,  what  is relevant is section 5(4)  as  it  stood before the amendment.  It may also be mentioned that in 1952 there was enacted the Criminal Law Amendment Act, 1952  (Act XLVI of 1952) which provided for the appointment of  Special Judges to try offences under sections 161, 165 and 165-A  of the Indian Penal Code and under sub-section (2) of section 5 of  the  Act such offences were made triable  only  by  such Special  Judges.  Provision was also made that  all  pending cases relating to such offences shall be forwarded for trial to the Special Judge.  That is how the present cases are all now  before the Special Judge of Delhi appointed under  this Act. On the arguments urged before us two points arise                             1155 for consideration. (1) Is the provision of the Prevention of Corruption  Act, 1947, enacting that the investigation  into the  offences specified therein shall not be’  conducted  by any   police  officer  of  a  rank  lower  than   a   Deputy Superintendent  of  Police without the specific order  of  a Magistrate,  directory  or  mandatory.  (2)  Is  the   trial following  upon  an investigation in contravention  of  this provision illegal. To determine the first question it is necessary to  consider carefully both the language and scope of the section and the policy  underlying  it.   As has been pointed  out  by  Lord Campbell  in Liverpool Borough Bank v. Turner(1), "there  is no  universal rule to aid in determining  whether  mandatory enactments shall be considered directory only or  obligatory with  an implied nullification for disobedience.  It is  the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute  to be construed". (See Craies on Statute Law,  page 242,  Fifth  Edition).   The  Code  of  Criminal   Procedure provides  not merely for judicial enquiry into or  trial  of alleged  offences but also for prior investigation  thereof. Section  5  of the Code shows that all  offences  "shall  be investigated, inquired into, tried and otherwise dealt  with in  accordance  with  the Code" (except in  so  far  as  any special enactment may provide otherwise).  For the  purposes of  investigation offences are divided into  two  categories ’cognizable’ and ’non-cognizable’.  When information of  the commission  of  a  cognizable offence is  received  or  such commission is suspected, the appropriate police officer  has the  authority  to enter on the investigation  of  the  same (unless  it  appears  to him that  there  is  no  sufficient ground).   But  where  the information  relates  to  a  non- cognizable offence, he shall not investigate it without  the order  of a competent Magistrate.  Thus it may be seen  that according  to  the scheme of the Code,  investigation  is  a normal preliminary to an accused being put up for trial  for a  cognizable  offence  (except when  the  Magistrate  takes cognizance other-



(1)  [1861] 30 L.J. Ch 879. 148 1156 wise than on a police report in which case he has the  power under  section 202 of the Code to order investigation if  he thinks   fit).   Therefore,  it  is  clear  that  when   the Legislature  made the offences in the Act cognizable,  prior investigation   by  the  appropriate  police   officer   was contemplated  as  the  normal preliminary to  the  trial  in respect  of  such  offences  under the  Act.   In  order  to ascertain  the  scope of and the reason for  requiring  such investigation  to  be conducted by an officer of  high  rank (except  when  otherwise permitted by a Magistrate),  it  is useful  to  consider  what "investigation"  under  the  Code comprises.   Investigation  usually  starts  on  information relating to the commission of an offence given to an officer in charge of a police station and recorded under section 154 of the Code.  If from information so received or  otherwise, the  officer in charge of the police station has  reason  to suspect  the  commission  of an offence, he  or  some  other subordinate  officer deputed by him, has to proceed  to  the spot to investigate the facts and circumstances of the  case and  if  necessary to take measures for  the  discovery  and arrest  of  the  offender.   Thus  investigation   primarily consists in the ascertainment of the facts and circumstances of   the  case.   By  definition,  it  includes   "all   the proceedings  under the Code for the collection  of  evidence conducted by a police officer".  For the above purposes, the investigating  officer is given the power to require  before himself  the  attendance  of  any  person  appearing  to  be acquainted with the circumstances of the case.  He has  also the  authority  to  examine such  person  orally  either  by himself  or  by  a  duly  authorised  deputy.   The  officer examining  any  person in the course  of  investigation  may reduce  his  statement  into writing  and  such  writing  is available,  in  the trial that may follow, for  use  in  the manner  provided  in  this behalf  in  section  162.   Under section  155 the officer in charge of a police  station  has the power of making a search in any place for the seizure of anything  believed to be -necessary for the purpose  of  the investigation.   The  search  has to be  conducted  by  such officer in person.  A subordinate officer may be deputed  by him for the                             1157 purpose only for reasons to be recorded in writing if he  is unable to conduct the search in person and there is no other competent officer available.  The investigating officer  has also the power to arrest the person or persons suspected  of the commission of the offence under section 54 of the  Code. A  police  officer making an investigation  is  enjoined  to enter  his  proceedings in a diary from  day-to-day.   Where such investigation cannot be completed within the period  of 24  hours and the accused is in custody he is enjoined  also to send a copy of the entries in the diary to the Magistrate concerned.   It  is  important  to  notice  that  where  the investigation  is conducted not by the officer in charge  of the  police station but by a subordinate officer (by  virtue of  one  or other of the provisions enabling him  to  depute such  subordinate  officer  for  any of  the  steps  in  the investigation)  such  subordinate officer is to  report  the result of the investigation to the officer in charge of  the police   station.    If,   upon  the   completion   of   the investigation  it  appears to the officer in charge  of  the police  station  that  there is no  sufficient  evidence  or reasonable  ground, he may decide to release  the  suspected accused,  if  in  custody, on his  executing  a  bond.   If,



however, it appears to him that there is sufficient evidence or  reasonable ground, to place the accused on trial, he  is to  take the necessary steps therefore under section 170  of the  Code.   In either case, on the completion  of  the  in- vestigation  he  has to submit a report  to  the  Magistrate under  section  173  of  the Code  in  the  prescribed  form furnishing   various   details.   Thus,   under   the   Code investigation consists generally of the following  steps:(1) Proceeding to the spot, (2) Ascertainment of the  facts  and circumstances of the case, (3) Discovery     and  arrest  of the suspected offender, (4) Collection of evidence  relating to  the commission of the offence which may consist  of  (a) the  examination of various persons (including the  accused) and  the reduction of their statements into writing, if  the officer  thinks fit, (b) the search of places of seizure  of things considered necessary for the investigation and to  be produced at the trial, and (5) Formation of the opi- 1158 nion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking  the necessary steps for the same by the filing of  a charge-sheet under section 173.  The scheme of the Code also shows that while it is permissible for an officer in  charge of  a police station to depute some subordinate  officer  to conduct  some  of  these steps  in  the  investigation,  the responsibility  for every one of these steps is that of  the person  in  the situation of the officer in  charge  of  the police  station, it having been clearly provided in  section 168  that when a subordinate officer makes an  investigation he should report the result to the officer in charge of  the police station.  It is also clear that the final step in the investigation,  viz.  the  formation of the  opinion  as  to whether or not there is a case to place the accused on trial is  to  be  that  of the officer in  charge  of  the  police station.   There  is  no  provision  permitting   delegation thereof but only a provision entitling superior officers  to supervise or participate under section 551. It is in the light of this scheme of the Code that the scope of  a  provision  like section 5(4) of the  Act  has  to  be judged.   When such a statutory provision enjoins  that  the investigation shall be made by a police officer of not  less than  a  certain rank, unless specifically  empowered  by  a Magistrate  in that behalf, notwithstanding anything to  the contrary  in the Code of Criminal Procedure, it  is  clearly implicit  therein that the investigation (in the absence  of such  permission) should be conducted by the officer of  the appropriate rank.  This is not to say that every one of  the steps  in the investigation has to be done by him in  person or  that  he cannot take the assistance of deputies  to  the extent  permitted by the Code to an officer in charge  of  a police  station  conducting an investigation or that  he  is bound to go through each of these steps in every case.  When the  Legislature  has  enacted  in  emphatic  terms  such  a provision  it is clear that it had a definite policy  behind it.   To  appreciate that policy it is relevant  to  observe that  under  the  Code of Criminal  Procedure  most  of  the offences relating to public 1159 servants as such, are non-cognizable.  A cursory perusal  of Schedule II of the Code of Criminal Procedure discloses that almost  all the offences which may be alleged to  have  been committed  by  a public servant, fall within  two  chapters, Chapter  IX "Offences by, or relating to, public  servants", and  Chapter XI "Offences against public justice"  and  that each  one  of  them  is  non-cognizable.  (Vide  entries  in



Schedule II under sections 161 to 169, 217 to 233, 225-A  as also  128 and 129).  The underlying policy in  making  these offences  by  public servants non-cognizable appears  to  be that public servants who have to discharge their  functions- often enough in difficult circumstancesshould not be exposed to   the  harassment  of  investigation  against   them   on information levelled, possibly, by persons affected by their official  acts,  unless a Magistrate is  satisfied  that  an investigation  is  called  for,  and  on  such  satisfaction authorises  the same.  This is meant to ensure the  diligent discharge  of their official functions by  public  servants, without  fear or favour.  When, therefore,  the  Legislature thought  fit  to  remove  the  protection  from  the  public servants,  in so far as it relates to the  investigation  of the  offences of corruption comprised in the Act, by  making them  cognizance, it may be presumed that it was  considered necessary  to  provide a substituted  safeguard  from  undue harassment  by  requiring that the investigation  is  to  be conducted normally by a police officer of a designated  high rank.  Having regard therefore to the peremptory language of sub-section  (4) of section 5 of the Act as well as  to  the policy apparently underlying it is reasonably clear that the said provision must be taken to be mandatory. It has been suggested by the learned SolicitorGeneral in his arguments  that  the consideration as to  the  policy  would indicate,  if  at all, only the necessity  for  the  charge- sheets  in such a case having to be filed by the  authorised officer, after coming to his own conclusion as to whether or not there is a case to place the accused on trial before the Court,  on a. perusal of the material previously  collected, and  that at best this might extend also to the  requirement of arrest of the 1160 concerned  public servant by an officer of  the  appropriate rank.  There is, however, no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the  scheme  of  the  Act,  have  to  be  conducted  by  the appropriate  investigating officer either directly  or  when permissible through deputies, but on his responsibility.  It is to be borne in mind that the Act creates two new rules of evidence  one  under section 4 and the other  under  section 5(3), of an exceptional nature and contrary to the  accepted canons of criminal jurisprudence.  It may be of considerable importance  to the accused that the evidence in this  behalf is collected under the responsibility of the authorised  and competent  investigating  officer or is at  least  such  for which  such officer is prepared to take responsibility.   It is  true that the result of a trial in Court depends on  the actual  evidence in the case but it cannot be  posited  that the  higher rank and the consequent  greater  responsibility and  experience  of  a  police  officer  has  absolutely  no relation  to  the nature and quality of  evidence  collected during investigation and to be subsequently given in Court. A  number of decisions of the various High Courts have  been cited   before   us   bearing   on   the   questions   under consideration.   We have also perused the recent  unreported Full  Bench  judgment of the Punjab  High  Court(1).   These disclose a conflict of opinion.  It is sufficient to  notice one  argument based on section 156(2) of the Code  on  which reliance  has  been  placed in some of  these  decisions  in support  of  the  view  that section  5(4)  of  the  Act  is directory  and  not mandatory.  Section 156 of the  Code  of Criminal Procedure is in the following terms: "156(1).   Any  officer in charge of a  police-station  may,



without   the  order  of  a  Magistrate,   investigate   any cognizable  case which a Court having jurisdiction over  the local  area  within the limits of such  station  would  have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. (1)  Criminal Appeals Nos. 25-D and 434 of 1953 disposed  of on 3rd May,1954. 1161 (2).  No  proceeding of a police-officer in  any  such  case shall at any stage be called in question on the ground  that the case was one which such officer was not empowered  under this section to investigate. (3).  Any Magistrate empowered under section 190  may  order such an investigation as above-mentioned". The  argument advanced is that section 5(4) and  proviso  to section  3 of the Act are in substance and in effect in  the nature  of an amendment of or proviso to section  156(1)  of the  Code  of  Criminal Procedure.  In  this  view,  it  was suggested  that section 156(2) which cures the  irregularity of  an investigation by a person not empowered is  attracted to section 5(4) and proviso to section 3 of the 1947 Act and section  5-A  of the 1952 Act.  With  respect,  the  learned Judges appear to have overlooked the phrase "under this sec- tion" which is to be found in sub-section (2) of section 156 of  the Code of Criminal Procedure.  What  that  sub-section cures  is  investigation by an officer not  empowered  under that  section, i.e. with reference to sub-sections  (1)  and (3) thereof.  Sub-section (1) of section 156 is a  provision empowering  an  officer  in charge of a  police  station  to investigate  a  cognizable  case  without  the  order  of  a Magistrate and delimiting his power to the investigation  of such  cases within a certain local jurisdiction.  It is  the violation of this provision that is cured under  sub-section (2).   Obviously sub-section (2) of section 156 cannot  cure the  violation  of any other  specific  statutory  provision prohibiting investigation by an officer of a lower rank than a  Deputy  Superintendent  of  Police  unless   specifically authorised.  But apart from the implication of the  language of  section  156(2),  it  is not  permissible  to  read  the emphatic  negative language of sub-section (4) of section  5 of  the  Act or of the proviso to section 3 of the  Act,  as being  merely in the nature of an amendment of or a  proviso to  sub-section (1) of section 156 of the Code  of  Criminal Procedure.   Some of the learned Judges of the  High  Courts have  called  in aid sub-section (2) of section 561  of  the Code of Criminal Procedure by way of analogy.  It 1162 is  difficult to see how this analogy helps unless the  said sub-section  is  also  to be assumed as  directory  and  not mandatory  which  certainly is not obvious  on  the  wording thereof We are, therefore, clear in our opinion that section 5(4)   and  proviso  to  section  3  of  the  Act  and   the corresponding  section 5-A of Act LIX of 1952 are  mandatory and  not directory and that the investigation  conducted  in violation thereof bears the stamp of illegality. The  question then requires to be considered whether and  to what  extent the trial which follows such investigation  is. vitiated.   Now, trial follows cognizance and cognizance  is preceded  by investigation.  This is undoubtedly  the  basic scheme  of the Code in respect of cognizable cases.  But  it does  not necessarily follow that an  invalid  investigation nullifies  the cognizance or trial based thereon.   Here  we are  not  concerned  with  the effect of  the  breach  of  a mandatory  provision regulating the competence or  procedure of  the  Court as regards cognizance or trial.  It  is  only



with  reference  to such a breach that the  question  as  to whether   it   constitutes  an  illegality   vitiating   the proceedings  or  a mere irregularity arises.   A  defect  or illegality in investigation, however serious, has no  direct bearing  on  the  competence or the  procedure  relating  to cognizance or trial.  No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken.   But it cannot be maintained that a valid and  legal police  report is the foundation of the jurisdiction of  the Court  to  take  cognizance.  Section 190  of  the  Code  of Criminal  Procedure is one out of a group of sections  under the   beading  "Conditions  requisite  for   initiation   of proceedings.   The  language of this section  is  in  marked contrast with that of the other sections of the group  under the  same heading, i.e. sections 193 and 195 to 199.   These latter sections regulate the competence of the Court and bar its  jurisdiction in certain cases excepting  in  compliance therewith.   But section 190 does not.  While no  doubt,  in one  sense, clauses (a), (b) and (c) of section  190(1)  are conditions requisite for taking of cogni-                             1163 zance,  it  is  not possible to say that  cognizance  on  an invalid  police  report  is prohibited and  is  therefore  a nullity.  Such an invalid report may still fall either under clause (a) or (b) of section 190(1), (whether it is the  one or the other we need not pause to consider) and in any  case cognizance  so  taken is only in the nature of  error  in  a proceeding  antecedent  to the trial.  To  such  a situation section  537 of the Code of Criminal Procedure which  is  in the following terms is attracted: "Subject  to  the  provisions herein  before  contained,  no finding,  sentence or order passed by a Court  of  competent jurisdiction  shall  be  reversed or altered  on  appeal  or revision  on account of any error, omission or  irregularity in  the complaint, summons, warrant,  charge,  proclamation, order, judgment or other proceedings before or during  trial or  in  any enquiry or other proceedings  under  this  Code, unless  such  error, omission or irregularity, has  in  fact occasioned a failure of justice". If,  therefore,  cognizance is in fact taken,  on  a  police report  vitiated  by  the breach of  a  mandatory  provision relating  to investigation, there can be no doubt  that  the result  of  the trial which follows it cannot be  set  aside unless  the illegality in the investigation can be shown  to have  brought  about  a miscarriage  of  justice.   That  an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court  for trial is well settled as appears from the cases in Prabhu v. Emperor(1)  and Lumbhardar Zutshi v. The King(2).  These  no doubt  relate to the illegality of arrest in the  course  of investigation  while we are concerned in the  present  cases with the illegality with reference to the machinery for  the collection  of  the evidence.  This distinction may  have  a bearing  on  the  question of prejudice  or  miscarriage  of justice, but both the cases clearly show that invalidity  of the  investigation has no relation to the competence of  the Court.   We  are, therefore, clearly, also, of  the  opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termi- (1)  A.I.R. 1944 P.C. 73. 149 (2) A.I.R. 1950 P C. 26, 1164 nation., the invalidity of the precedent investigation  does not  vitiate the result, unless miscarriage of  justice  has



been caused thereby. It  does  not follow, however, that the  invalidity  of  the investigation  is  to  be completely ignored  by  the  Court during trial.  When the breach of such a mandatory provision is  brought to the knowledge of the Court at a  sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and  the defect rectified, by ordering such  reinvestigation as  the  circumstances of an individual case may  call  for. Such a course is not altogether outside the contemplation of the  scheme  of the Code as appears from section  202  under which  a  Magistrate taking cognizance on  a  complaint  can order investigation by the police.  Nor can it be said  that the  adoption of such a course is outside the scope  of  the inherent  powers of the Special Judge, who for  purposes  of procedure  at  the trial is virtually in the position  of  a Magistrate trying a warrant case.  When the attention of the Court is called to such an illegality at a very early  stage it  would  not  be fair to the accused not  to  obviate  the prejudice that may have been caused thereby, by  appropriate orders,  at  that  stage but to leave him  to  the  ultimate remedy  of waiting till the conclusion of the trial  and  of discharging the somewhat difficult burden under section  537 of the Code of Criminal Procedure of making out that such an error  has in fact occasioned a failure of justice.   It  is relevant  in this context to observe that even if the  trial had proceeded to conclusion and the accused had to make  out that there was in fact a failure of justice as the result of such  an  error, explanation to section 537 of the  Code  of Criminal Procedure indicates that the fact of the  objection having been raised at an early stage of the proceeding is  a pertinent factor.  To ignore the breach in such a  situation when  brought to the notice of the Court would be  virtually to make a dead letter of the peremptory provision which  has been enacted on grounds of public policy for the benefit  of such an accused.  It is true that the peremptory pro- 1165 vision itself allows an officer of a lower rank to make  the investigation  if permitted by the Magistrate.  But this  is not any indication by the Legislature that an  investigation by an officer of a lower rank without such permission cannot be said to cause prejudice.  When a Magistrate is approached for  granting  such  permission he is  expected  to  satisfy himself  that  there  are good and  sufficient  reasons  for authorising  an  officer  of a lower  rank  to  conduct  the investigation.  The granting of such permission is not to be treated  by a Magistrate as a mere matter of routine but  it is  an exercise of his judicial discretion having regard  to the  policy underlying it.  In our opinion, therefore,  when such  a breach is brought to the notice of the Court  at  an early  stage  of the trial the Court have  to  consider  the nature  and  extent of the violation  and  pass  appropriate orders for such reinvestigation as may be called for, wholly or  partly, and by such officer as it considers  appropriate with  reference  to the requirements of section 5-A  of  the Act.   It is in the light of the above  considerations  that the validity or otherwise of the objection as to the  viola- tion  of section 5(4) of the Act has to be decided  and  the course to be adopted in these proceedings, determined. The  learned Special Judge before whom the objection  as  to the  violation  of section 5(4) of the Act  was  taken  took evidence  as  to the actual course of the  investigation  in these  cases.   In the cases out of which  Criminal  Appeals Nos.  96 and 97 of 1954 arise, the first information  report which  in each case was filed on 29-6-1949 was in  terms  on



the   basis  of  a  complaint  filed  by  the  Director   of Administration  and Co-ordination,, Directorate of  Industry and   Supply.   This  disclosed   information   constituting offences including that under section 5(2) of the Act.   The cases were hence registered under various sections including section 5(2), of the Act.  The investigation that was called for  on the basis of such a first information report was  to be  by  an officer contemplated -under section 5(4)  of  the Act.  The charge-sheets in these two cases were filed on 11- 8-1951 by a Sub-Inspector 1166 of Police, R. G. Gulabani and it appears that he applied  to the  Magistrate  for permission to  investigate  into  these cases  on 26-3-1951.  His evidence shows that so far as  the case  relating  to  Criminal  Appeal  No.  97  of  1954   is concerned,  he  did  not  make  any  investigation  at   all excepting  to put up the chargesheet.  All the prior  stages of  the  investigation were conducted by a number  of  other officers of the rank of Inspector of Police or Sub-Inspector of  Police  and  none  of  them  had  taken  the   requisite permission  of  the Magistrate.  In the case  out  of  which Criminal Appeal No. 96 of 1954 arises the evidence of R.  G. Gulabani  shows that he took up the investigation  after  he obtained  permission and partly investigated  it  thereafter but  that the major part of the investigation was done by  a number  of  other officers who were all below  the  rank  of Deputy Superintendent of Police without having obtained from the Magistrate the requisite sanction therefor.  Both  these are cases of clear violation of the mandatory provisions  of section  5(4) of the Act.  In the view we have taken of  the effect  of  such  violation it  becomes  necessary  for  the Special  Judge  to reconsider the course to  be  adopted  in these two cases. As  regards the case out of which Criminal Appeal No. 95  of 1954  arises it is to be noticed that the first  information report which was filed on 30-4-1949 disclosed offences  only against  Messrs  Patiala Oil Mills, Dev  Nagar,  Delhi,  and others,  and  not as against any public servant.   The  case that  was registered was accordingly in respect of  offences punishable  under section 420 of the Indian Penal  Code  and section 6 of the Essential Supplies (Temporary) Powers  Act, 1946,  and not under any offence comprised within  the  Pre- Vention  of  Corruption Act.  The  investigation  proceeded, therefore,  in the normal course.  The evidence  shows  that the  investigation in this case was started on  2-5-1949  by Inspector Harbans Singh and that on 11-7-1949 he handed over the investigation to Inspector Balbir Singh.  Since then  it was only Balbir Singh that made all the investigation and it appears from his evidence that he examined as many 1167 as 25 witnesses in the case.  It appears further that in the course  of  this investigation it was found  that,  the  two appellants  and  another public servant were  liable  to  be prosecuted  under section 5(2) of the Act.  Application  was then  made  to the Magistrate by Balbir Singh  for  sanction being accorded to him under section 5(4) of the Act and  the same was given on 20-3-1951.  The charge-sheet was filed  by Balbir Singh on 15-11-1951.  He admits that all the investi- gation by him excepting the filing of charge-sheet was prior to  the  obtaining  the  sanction  of  the  Magistrate   for investigation.   But  since the investigation prior  to  the sanction  was  with  reference to a  case  registered  under section  420 of the Indian Penal Code and section 6  of  the Essential  Supplies (Temporary) Powers Act, 1946,  that  was perfectly valid.  It is only when the material so  collected



disclosed the commission of an offence under section 5(2) of the Act by public servants, that any question of taking  the sanction of the Magistrate for the investigation arose.   In such  a  situation the continuance of such  portion  of  the investigation  as remained, as against the  public  servants concerned by the same officer after obtaining the permission of  the Magistrate was reasonable and legitimate.   We  are, therefore, of the opinion that there has been no such defect in   the  investigation  in  this  case  as  to   call   for interference. In the result, therefore, Criminal Appeal No. 95 of 1954  is dismissed.   Criminal  Appeals  Nos.96 and 97  of  1954  are allowed with the direction that the Special Judge will  take back  the two cases out of which these appeals arose  on  to his  file and pass appropriate orders after  reconsideration in the light of this judgment. Criminal Appeal No. 106 of 1954. This is an appeal by special leave against a common order of the High Court of Punjab relating to Cases Nos. 19 to 25  of 1953  before the Special Judge, Delhi.  It raises  the  same questions  which  have been disposed of by our  judgment  in Criminal  Appeals Nos. 95 to 97 of 1954.  Since  the  appeal is, in form, one 1168 against  the order of the High Court refusing to grant  stay of the proceedings then pending, it is sufficient to dismiss this appeal with the observation that it will be open to the appellants  to  raise , the objections  before  the  Special Judge.