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PETITIONER: MUNI LAL

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT30/03/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N.

CITATION:  1971 AIR 1525            1971 SCR  276  1971 SCC  (2)  48  CITATOR INFO :  RF         1992 SC 604  (125)

ACT: Prevention  of Corruption Act (2 of 1947), s. 5A-If  officer conducting  investigation  should take every  step  himself- Objection not taken during trial- Effect of irregularity  or illegality-If conviction illegal.

HEADNOTE: The  appellant was charged with the offenses under  s.  5(2) read  with s. 5(1) (d) of the Prevention of Corruption  Act, 1947  and s. 161, I.P.C. The investigation was conducted  by the   Dy.   Superintendent  of  Police  but  some   of   the statements,  reports and memoranda were written, not by  the Dy.   Superintendent  of Police, but by  the  Sub-Inspector. The  appellant did not raise any objection before or  during the  trial that an illegality or irregularity was  committed during  investigation.   At the stage of  argument,  it  was conte nded  that  there  was a violation of  s.  5(A).   The appellant was convicted and the conviction was confirmed  by the High Court.  In appeal to this Court, on the  questions: (1) whether there was violation of s. 5(A) of the Prevention of  Corruption Act, and (2) whether such violation  rendered the trial and conviction of the appellant illegal, HELD:(1)   The  Dy.   Superintendent  of  Police   gave evidence  that the entire investigation was done by him  and that  the  statements and reports which were  in  the  hand- writing  of the Sub-Inspector were written by the latter  on his  dictation and under his supervision.  The  evidence  in the  case also established that the Dy.   Superintendent  of Police  was in complete charge of the  investigation  giving necessary  directions and, never withdrew from the  case  at any stage.  Though s. 5A is mandatory that the investigation should  be conducted by the officer of the appropriate  rank it  is  not  necessary that every one of the  steps  in  the investigation  should  be done by him in person or  that  he could not take the assistance of his deputies or that he was bound  to  go  through  each  one  of  the  steps   himself. Therefore,  there was no irregularity or illegality  in  the conduct of the investigation. [280 F-G; 282A-B, F-H; 283B] (2)Where  no objection was raised before  trial  commenced regarding  any illegality or irregularity  committed  during

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investigation  and where the cognizance of case in fact  had been  taken  and the case had proceeded to  termination  the invalidity of the preceding investigation would not  vitiate the  result  unless miscarriage of justice has  been  caused thereby  and the accused has been prejudiced. [281A-B,  C-D, G] H.N. Rishbud and Inder Singh v. State of Delhi, [1955]  1 S.C.R. 1150 and Munna Lal v. State of Uttar Pradesh,  [1964] 3 S.C.R. 88, followed. State  of  Madhya  Pradesh v. Mubarak Ali,  [1959]  Supp.  2 S.C.R. 201, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Criminal Appeal 23 of 1968. 277 Appeal  by special leave from the judgment and  order  dated September  18,  1967  of the Delhi High  Court  in  Criminal Appeal No. 26-D of 1966. E.   C. Agarwal, for the appellant. G.   N. Dikshit and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Vaidialingam, J.-This appeal, by special, leave, is directed against  the judgment and order dated September 18, 1967  of the  Delhi  High  Court confirming  the  conviction  of  the appellant for offenses under Sections 5(2) read with Section (5)  (1)  (d)  of the Prevention  of  Corruption  Act,  1947 (hereinafter  to be referred as the Act) and Section 161  of the  Indian Penal Code. The High Court also  confirmed  the sentence  of one year’s rigorous imprisonment.  In  addition to this the Special Judge had imposed a fine of Rs. 500; but the  High Court reduced the fine to Rs. 100.  This was the only modification effected by the High Court with regard  to the sentence. The  case for the prosecution was as follows  The  appellant was  employed in August, 1965 as Head Constable attached  to Hauz Qazi Police Station, Delhi.  One Som Nath used to  park his  rehri  in the chowk of Hauz Qazi and sell  Kulchey  and Chholey.  Som Nath had been plying this trade for about 8 or 10  years  without  payment  of the  necessary  tax  to  the Municipal  Corporation and without taking any licence.   The appellant  used to harass and threaten Som Nath that  unless he paid bribe to him, he will be prosecuted.  In  particular on  August 25, 1965 the appellant demanded from Som Nath  as bribe  a sum of Rs. 20 per month for not harassing  him  for carrying on his business without the necessary licence.  Som Nath expressed his inability to pay such a heavy amount  and ultimately the appellant agreed to receive Rs. 10 per month. He  promised  to make the first payment on August  26,  1965 between 2 and 3 P. M. At about 11 A. M. on August 26,  1965, Som Nath approached Sri Hamaik Singh, Deputy  Superintendent of  Police, attached to the Anti, Corruption Department  and reported  about the demand made by the appellant and to  his having  ultimately agreed to pay a sum of Rs. 10  between  2 and  3  P. M. on that day., This complaint  was  reduced  to writing by Harnaik Singh, who has given evidence as P. W. 6. P.  W.  6,  summoned two employees from the  office  of  the Deputy Collector, Tees Hazari, Sri Navneet Lal (P.  W.2) and Hari Kisban (P.  W. 3) and in their presence took from P. W. I  the currency note of Rs. 10 and after noting  the  number handed it over to P. W. I with the instruction to, give  the same to the appellant on demand.  P. W. I was also  informed that the police party 278

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will  be hiding nearby and that he should give a  particular signal after paying the amount to the appellant. The  police party headed by P. W. 6 together with  the  com- plainant  and P. Ws. 2 and 3 proceeded near the rehri of  P. W. I. While P. W. I went to the rehri, the police party  and P. Ws. 2 and 3 remained behind in hiding.  At about 2. 45 P. M.  the appellant came to the rehri of P. W. I and told  him "give, my thing to me".  P. W. I placed the currency note on the  palm  of the appellant saying that he was  ’Making  the payment with considerable difficulty.  On signal given by P. W. 1, the Deputy Superintendent of Police along with  others immediately  went to the rehri of P. W. I and on being  told by  P.  W. 1 that he had paid Rs. 10/to the  appellant,  the latter was asked to produce the same.  P. W. 6 made a search of  the appellant and recovered the currency note Ex.  P.  I from  his  pocket.   The number of  the  currency  note  was checked with the number already recorded and it tallied.  P. Ws. 2 and 3 also witnessed the search and seizure made by P. W.  6.  Accordingly  the appellant was  prosecuted  for  the offenses mentioned above. The prosecution relied mainly on the evidence of P. W. I Som Nath  and the two persons who had witnessed the  search  and seisure  P.  Ws. 2 and 3 and the  Deputy  Superintendent  of Police, P.     W.  6.  Certain  other  witnesses  were  also examined. The appellant denied that he had either demanded or received any bribe from P. W. I He pleaded that the alleged  recovery of  the  currency  note  from him  is  false  and  that  the witnesses  had  been tutored to give false evidence  at  the instance  of Ved Prakash, Sub-Inspector of Police,  who  was his  enemy.  According to the appellant, he had declined  to accede to the request of Ved Prakash to give false  evidence against two Sub-Inspectors of Police, Phool Singh and  Jeeva Singh,  whom  he  wanted to be implicated in  a  case.   The appellant also examined two witnesses.  D. W. 1 who was also having  a  rehri  in the same chowk,  had  stated  that  the appellant  had not received any bribe from P. W. I and  that he  also informed P. W. 6 about the same.  D. W. 2  was  the Secretary  of the Rehri Labour Union and he has  deposed  to the  fact  that none of the members of the  Union  had  ever complained  against  the appellant and that the  latter  had nothing  to do with the prosecution of people under  Section 34 of the Police Act. The,  learned Special Judge accepted the evidence of P.  Ws. 1, 2, 3 and 6, and rejected the evidence of D. Ws. 1, and 2. The  view of the learned Special Judge was that D. W. I  was giving false, evidence on account of business friendship and that  D.  W.  2  had said  nothing  about  the  incident  in question.  In this view the 279 Special  Judge  found the appellant guilty of  the  offenses with  which he was charged and sentenced him to undergo  one year’s rigorous imprisonment and to pay a fine of Rs. 500. On  appeal  to  the High Court, the  appellant  pressed  the objection  that  the investigation of the case was  done  in violation  of  the  provisions of Section  5A  of  the  Act. According  to the appellant, instead of P. W.  6  conducting the  investigation,  it was done by  the  Sub-Inspector  Ved Prakash and, therefore, no conviction could be based on such investigation,  which  had been made contrary to  law.   The appellant also pleaded that the evidence of P. W. 1 is  that of an interested witness and that P. Ws. 2 and 3 were  tools in  the hands of the police and as such no reliance  can  be placed on the testimony of these three witnesses.  His  plea was  that the evidence of D. Ws.  1 and 2 should  have  been

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accepted. The  High Court has expressed the view that there is a  cer- tain amount of irregularity in the investigation of the case inasmuch  as  the  statements, reports and  memos  were  all written by Ved Prakash and not by the Deputy  Superintendent of Police, P. W. 6. But as there is only an irregularity and as  the trial has not been vitiated, it cannot be said  that the  trial  and  other  proceedings  conducted  against  the appellant have to be set aside.  The High Court agreed  with the Special Judge that the evidence of P. Ws. 1, 2, 3 and  6 clearly establishes the case of the prosecution and as  such the  appellant  has been rightly found to be guilty  of  the offenses  with which he was charged.  While confirming  the conviction   and  the  sentence  of  one   year’s   rigorous imprisonment,  the High Court, however, reduced the fine  to Rs. 100. Mr. E. C. Agarwala, learned counsel for the appellant raised two  contentions  :  (1) the trial  and  conviction  of  the appellant are illegal inasmuch as the investigation in  this case  has been conducted in violation of the  provisions  of Section  5A  of the Act, and (2)  the  prosecution  evidence should  not  have been accepted as the whole case  has  been engineered  by the enemy of the appellant Ved  Prakash,  who has not appeared before the court.  The second contention of Mr.  Agarwala  can be straightaway disposed  of.   Both  the Special  Judge  as well as the High Court have  accepted  as true the evidence of P. Ws. 1, 2, and 3 supported as it  was by  the evidence of the Deputy Superintendent of Police,  P. W.  6.  The  Evidence  of D. W.  I  has  been  categorically rejected as false.  D. W. 2 does not say anything about  the incident and as such his evidence is of no assistance to the appellant.   No doubt the appellant has stated when  he  was examined  under Section 342 Cr.  P.-C. that the  prosecution witnesses Nos. 1, 2 and 3 are under the influence and threat of  the  police  and that they have  been  prompted  by  Ved Prakash  due to enmity to give false evidence  against  him. This 280 plea  has  not been accepted by any of the courts.   We  are satisfied  that the evidence adduced by the prosecution  has been properly accepted by the courts. This  leaves  us the consideration of the  first  contention that the investigation has not been conducted in  accordance with Section 5A of the Act.  We must frankly admit that  the observation  made  by the High Court that there has  been  a certain  amount of irregularity in the investigation of  the case  has given scope for this argument.  According  to  the learned  counsel for the appellant the entire  investigation in this case has been done not by the Deputy  Superintendent of  Police P. W. 6, but by the Sub-Inspector of  Police  Ved Prakash,  who has also not appeared before the  court.   The contention  of the learned counsel in this regard  is  based upon the fact that some of the statements, reports and memos have been written not by P. W. 6 but by Ved Prakash.  Mr. G. N.   Dixit,   learned  counsel  appearing  for   the   Delhi Administration,  has  drawn  our attention  to  the  various reports, statements and memos exhibited in the case to  show that the investigation has been done not by Ved Prakash, but by P. W. 6 and it is not violative of Section 5A of the Act. He has also placed considerable reliance on the evidence  of P. W. 6 in this regard to show that the entire investigation was done by him. There  is no controversy that the case before us  could  not have  been investigated under Section 5A of the Act  by  any police officer below the rank of a Deputy Superintendent  of

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Police.  The only question is whether the investigation  has been  done by Ved Prakash as alleged by the appellant or  by P. W. 6 as stated on behalf of the respondent The  contention on behalf of the appellant is that  some  of the statements recorded appear to be in the hand writing  of Ved  Prakash and, therefore, the inference is that it is  he who  has  conducted  the investigation.   It  is  true  that Section   5A   is  mandatory  and  not  directory   and   an investigation  conducted  in violation thereof  is  illegal. But  as held by this Court in H. N. Rishbud and Inder  Singh vs.   The State of Delhi (1) if cognizance in fact has  been taken  on a police report in breach of the mandatory  provi- sions  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 has been further emphasised  in the said decision that an illegality committed in the course of  a n  investigation does not affect  the  competence  and jurisdiction of the Court for trial.  The same  propositions have  been  reiterated  in Munna Lal  vs.   State  of  Uttar Pradesh (2) (1) [1955] 1 S. C. R. 1150.    (2.) [1964] 3 S. C. R. 88. 281 From the above propositions it follows that where cognizance of  the  case  has  in fact been  taken  and  the  case  has proceeded  to termination, the invalidity of  the  preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has  been prejudiced.  Assuming in favour of the appellant, that there was an irregularity in the investigation and that Section 5A of the Act was not complied with in substance, the trial  by the Special Judge cannot be held to be illegal unless it  is shown that miscarriage of justice has been caused on account of  illegal investigation.  The learned counsel for the  ap- pellant  has been unable to show us how there has  been  any miscarriage of justice in this case and how the accused  has been prejudiced by any irregular investigation.   Admittedly the  appellant did not raise any objection before the  trial commenced regarding any illegality or irregularity committed during  the stage of investigation.  On the other hand,  the trial  was allowed to proceed and it came to an  end.   That contention  was raised only at the stage of  arguments.   In this  connection  we may also refer to the decision  in  The State  of  Madhya  Pradesh  v.  Mubarak  Ali(1),  There  the objection  was  taken  before the  trial  began  before  the Special Judge, that the investigation has been carried on in breach  of Section 5A of the Act.  The matter was  taken  to the  High Court and it directed that it in order to  rectify the  defects and cure the illegality in  the  investigation, the  Special Judge should have ordered the Deputy  Superin- tendent  of  Police to carry on  the  investigation  himself while the case remained pending in the court of the  Special Judge.  That order of the High Court was challenged and this Court  confirmed it and declined to interfere on the  ground that  as the objection has been taken at the earliest  stage before  the  trial began, the direction given  by  the  High Court   was   justified  as  that  will  ensure   a   proper investigation  being made and completed for the  prosecution of  the accused therein.  Therefore the ratio of  the.  said decision cannot apply and the present case will be  governed by  the decision in The State of Madhya Pradesh  v.  Mubarak Ali(1). (1).  But we make it clear that the above discussion has been made by us on the assumption that there has been an irregularity  committed  in the investigation  in  the  case before  us’ But as we will presently show in the  discussion

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to follow there is no such irregularity or illegality in the investigation as contended on behalf of the appellant. We  are  satisfied that the investigation in this  case  has been conducted not by Ved Prakash, Sub-Inspector of  Police, but   by  the  competent  authority,  namely,   the   Deputy Superintendent of 1. [1959] Supp. 2 S. C. R. 201 2. [1955] 1 S.C. R. 1150. 282 Police.   P.  W.  6. It is no doubt true that  some  of  the statements recorded during the investigation conducted by P. W.  6 are in the hand writing of Ved Prakash.  But P.  W,  6 has  categorically  stated in his evidence that  the  entire investigation  was  done by him and that any  statements  or reports  which are in the hand writing of Ved  Prakash  were written by  the  latter on his  dictation  and  under  his supervision.  That P. W. 6 is the officer who conducted  the investigation is also borne out by the, various  documentary evidence  produced in. the case.  Ex.  PA has been given  by P. W. 1 to P. W. 6 and it bears the signature of the latter. The  endorsement Ex.  P. A 1 also bears the signature of  P. W.  6. It is clearly stated therein that on receipt  of  the complaint  Ex.  PA from P. W. I., the Deputy  Superintendent of  Police sent for P. Ws. 2 and 3, two employees  from  the office of the Deputy Commissioner to appraise them about the nature  of  the complaint given by P. W. I and  also  making them witnesses for receiving the ten rupee currency note  as well as handing over the same      to P. W. 1 to be given as bribe to the appellant.  The detailed instructions are given by P. W. 6 in the endorsement and to the said two witnesses. There is  a   further   endorsement  that   he   as   Deputy Superintendent  of  Police  has  arranged  a  raiding  party consisting of himself and the persons mentioned therein  and that  they are leaving for conducting the raid  along  with the  complainant.  There is also a further  endorsement  Ex. PA/2  by  P.  W.  6 giving in  detail  the  actual  incident relating  to  the search and seizure of ten  rupee  currency note from the appellant.  All these are done by P. W. 6  and after  the seizure and search, P. W. 6 sends  the  necessary report  to the concerned police station for registering  the case.   The actual seizure memo is also prepared and  signed by  P. W. 6. The various articles seized from the  appellant are  also written out in the memo prepared and signed by  P. W. 6. Therefore, all the above facts clearly establish  that the   investigation  was  conducted  by  P.  W.  6,   Deputy Superintendent  of Police, as required by law and there  has been no violation of Section 5A of the Act.    The High Court found irregularity in the investigation on the  basis,  as  pointed  out  earlier,  that  some  of  the statements are. in. the hand writing of Ved Prakash.  We are of the view that this was a wrong approach made by the  High Court.   It is clear from the evidence that P. W. 6  was  in complete charge and control of’ the investigation and he has never  withdrawn  from the same at any stage.   He  was  the officer who was controlling and giving necessary  directions in  the  course  of investigation.   Though  it  is  clearly implicit  in  section 5A that the  investigation  should  be conducted by the officer of the appropriate rank, we do  not think it is absolutely necessary 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 his deputies or that he  is bound to go through each and 283 everyone  of the steps in the investigation in  every  case. The above proposition also has been laid down by this  Court

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in H. N. Rishbud and Inder Singh vs. The State of Bihar (1) are referring to the above aspect to emphasise that the mere fact  that some of the statements have been  written-by  Ved Prakash  to  the  dictation of P. W. 6  will  not  make  the investigation  as one not conducted by P. W.  6.  Therefore, under  the circumstances, we are not inclined to agree  with the  view  of  the  High  Court  that  there  has  been  any irregularity   or   illegality  in  the   conduct   of   the investigation. We however agree with the conclusions arrived at by the High Court holding the appellant guilty of the offence as well as the sentence imposed on him.  In  the  result  the appeal fails and  is  dismissed.   The appellant will surrender his bail. V.P.S. (1) [1955] 1 S. C. R. 1150. 284