09 March 1970
Supreme Court


Case number: Appeal (crl.) 233 of 1966






DATE OF JUDGMENT: 09/03/1970


CITATION:  1971 AIR  520            1970 SCR  (3) 931  1970 SCC  (1) 595  CITATOR INFO :  RF         1979 SC1895  (1)  D          1984 SC 718  (21)  RF         1991 SC1260  (53)  AFR        1992 SC 604  (80)

ACT: Code  of  Criminal Procedure (Act 5 of  1898),  Chapter  XI- Investigation   by  Vigilance  Department-Duty   to   follow procedure in Code-Prevention of Corruption Act (2 of  1947), s. 5(1) (b)-Scope of.

HEADNOTE: On March 1, 1964, the Chief Minister of the State received a petition  containing allegations of corruption  against  the appellant (a Superintending Engineer) and the Chief Minister asked the Director of Vigilance and Anti-Corruption to  make enquiries.  On March 10, 1964, the Director submitted a note containing serious aspersions on the appellant and the Chief Minister  ordered  further investigation.  The  Director  of Vigilance  registered an inquiry on 15th April, 1964, and  a Deputy Superintendent of Police of the Vigilance  Department was asked to make the inquiry.  The Deputy Superintendent of Police made a thorough and searching inquiry.  He examined a large  number  of persons including 18 public  servants  and even  enquired into and took down statements of persons  who were  supposed to have provided the appellant with  articles of  food worth trifling sums of money, a long  time  before. He  recorded  self incriminating statements of a  number  of persons and secured their signatures thereto.  With  respect to two officers, who were the subordinates of the appellant, he  even gave certificates of immunity from any action  that might  be taken against them for the part played by them  in aiding  the appellant.  On June 27, 1964, he lodged a  first information  report, with respect to offences under ss.  161 and 165 I.P.C., and s. 5(1)(a) and (d) of the Prevention  of Corruption  Act,  1947.  He investigated into  the  offences there-after,  and filed the charge sheet before the  Special Judge. The  appellant  made an application for discharge  under  s. 251-A, Cr.P.C., on the grounds of discrimination between him and  other  officers  who  were  given  pardon  and,   gross



irregularities  in  the investigation.   The  Special  Judge held,  that  though  there was no  basis  for  charging  the appellant under s. 165, I.P.C., or under s. 5(2), read  with s.  5(1)(b). of the Prevention of Corruption Act,  a  charge could  be  framed  against him under s. 5(2)  read  with  s. 5(1)(d).  The appellant thereafter moved the High Court, The High Court held : (1) that the investigation started  on 15th April 1964 when the Director of Vigilance registered an inquiry (2) that the taking of signed and self-incriminating statements  from various witnesses was in violation  of  ss. 161  to  164 Cr.P.C.; (3) that the Special  Judge  erred  in directing the framing of the charge without excluding  those statements  from  consideration; and (4)  that  the  Special Judge  should take up the matter once again after  excluding from consideration those statements. In appeal to this Court, HELD : (1) Though technically investigation did not commence on  15th April 1964 but started only after the formal  first information  report  was lodged on,.  June 27,  1964,  there were serious irregularities during the 93 2 inquiry  and  investigation which caused  prejudice  to  the appellant.   The  directions given by the High  Court  were, however,  sufficient in the circumstances of the case.  [945 D] The  Directorate of Vigilance and Anti-Corruption  became  a police  station for the purposes of the  Criminal  Procedure Code only by a notification dated 25th May 1964.  Therefore, the inquiry before that date was not an investigation  under Ch.  XIV  of  the Code, but there was  no  warrant  for  the Vigilance  Department, which was in the charge of  a  senior police  officer, to disregard the provisions of ss. 162  and 163  of  the  Code.  Under s.161(3) of  the  Code  a  police officer  is empowered to reduce into writing  any  statement made  to  him in the course of investigation and  s.  162(1) lays  down that such a statement is not to be signed by  the maker  thereof.   Section  163(1) lays  an  embargo  on  the investigating  authority  using any  inducement,  threat  or promise to the maker.  The reason for these provisions is to secure a fair investigation into the facts and circumstances of the case and to see that an of calous police officer  may not misuse his position by getting a statement signed by the maker  in order to pin him down to it.  Also, immunity  from prosecution  and  the  grant of a pardon  were  not  in  the discretion of police authorities. 1940 A-H; 941 A-B, D, F] In  the present case. the officers who were  given  immunity must have made the self-incriminating statements because  an oral  assurance of immunity was given before they  made  the statements,  that is, the statements were given as a  result of an inducement.  There can be no excuse for the  Vigilance Department  for  proceeding  in the  manner  adopted  merely because the first information ’,report had not been  lodged. As  soon as it became clear to them on March 10, 1964,  that the  appellant appeared to be guilty of serious  misconduct, it was their duty to lodge such a report and,proceed further in  the  investigation according to Ch.  XIV  of  the  Code. Their  omission to do so cannot but prejudice the  appellant and the State ought not to be allowed to take shelter behind the  plea  that  although the, steps taken  in  the  enquiry before  the  first  information  was  lodged  were.  grossly irregular  and  unfair, the appellant  could  not  complain, because. there was no infraction of the rules after  lodging the first information report. [942 D-G; 943 C-H] (2)  If  it be a fact that it was the appellant, who as  the head  of  the  department,  was  actively  responsible   for



directing the commission of offences by his subordinates  in a  particular manner, he cannot be allowed to take the  plea that  the subordinates should also be joined  as  co-accused with him. [944D] (3)  Under s. 5 (1) (b), a public servant would be guilty of the offence of criminal misconduct if he habitually  accepts any  valuable  thing for inadequate consideration  not  only from  outsiders  who  are  likely to  be  concerned  in  any proceeding or business, transacted or about to be transacted by  the public officer but also from any subordinate or  any other person who is connected with the official functions of the public servant.  Therefore, in this case, a charge could also be framed under s.  5(1)(b),  if  there  was  material. [945 A-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals 233 to 235 of 1966, and 9 to 11 of 1967. Appeals from the judgment and order dated April 13, 1966  of the  Madras  High Court in Writ Petitions Nos. 390  of  1965 etc. 933 M.C.  Chagla,  Amjad Nainar and R. Gopalakrishnan,  for  the appellant  (in  Cr.   As.   Nos. 233 to  235  of  1966)  and respondent No. 1 (in Cr.  As.  Nos. 9 to 11 of 1967). S.  Govind  Swaminathan, Advocate-General for the  State  of Tamil     Nadu, A. V. Rangam, K. S. Ramaswami Thevar, N.  S. Sivan,    for the respondents (in Cr.  As.  Nos. 233 to  235 of  1966) and the appellants (in Cr.  As.  Nos. 9 to  11  of 1967). The Judgment of the Court was delivered by Mitter,  J.  These  six appeals arise  out  of  certificates granted by the High Court of Madras arising out of two  Writ Petitions  and a petition under ss. 435 and 439 of the  Code of Criminal Procedure filed in that court by P.  Sirajuddin, the  appellant  in  the first set of  appeals.   It  is  not necessary  to  give  an outline of these  Petitions  as  the salient  features  thereof  appear  sufficiently  from   the judgment  of  the High Court and the  substance  thereof  is dealt with hereafter. The  facts  are  as follows.  The appellant  was  the  Chief Engineer, Highways and Rural Works, Madras having risen from the status of a District Board Engineer in which capacity he joined service in the year 1935.  He attained the age of  55 years  on March 14, 1964 on which date he was asked to  hand over  charge  of his office to one  Shiv  Shankar  Mudaliar, Superintending Engineer, Madras.  He expected to be retained in  service  up  to the age of 58, a privilege  said  to  be normally  accorded to persons physically and  otherwise  fit for public service.  It appears that on March 1, 1964 a copy of  a  petition concerning him and dated February  28,  1964 addressed  to the Minister, Public Works by  one  Rangaswami Nadar  was received by the Chief Minister of the State.   It is  said  that  apart therefrom allegations  about  want  of rectitude   of  the  appellant  had  already   reached   the Government.   The  Chief  Minister  asked  the  Director  of Vigilance   and   Anti-Corruption   to   make   confidential enquiries.   On  March 10, 1964 Government received  a  note from  the said officer which cast serious aspersions on  the appellant’s reputation and mentioned quite -a few  instances of  his  lack  of probity.  The  endorsement  of  the  Chief Minister on the note read:               Secretary, P.W.D. I had this (petition already



             mentioned)  from  the Director  of  Vigilance.               This  may be immediately looked into.  I  have               asked the Director to pursue the investigation               further." Thereupon the Chief Secretary orally ordered a  full-fledged enquiry  in  the  matter and the  Deputy  Superintendent  of Police,   Vigilance   and   Anti-Corruption   one   G.   _K. Ranganathan, was asked to make a personal enquiry and report under the supervision of 93 4 R.   N. Krishnaswamy.  The Director of Vigilance  registered an enquiry numbering 8/HD/64 on 15th April, 1964.  That  the enquiry was taken up with great keenness appears from a note of Ranganathan to the effect he would require the assistance of two Inspectors to assist him.  There can be no doubt that the  enquiry launched by the Vigilance and  Anti--Corruption Department  was a very thorough and searching one.   A  very large  number of persons were examined by the Vigilance  and Anti-Corruption  officers including 18 public  servants  who spoke  to  matters  touching  the  allegations  against  the appellant.  Statements in writing signed by the makers  were taken  from no less than nine public servants regarding  the above  and two of them,--namely, S. Sivasubrahmanyam and  S. Chidambaram  were given certificates assuring them  immunity from  prosecution for the part played by them. in  rendering aid to the appellant in the commission of his  malpractices. These  two  persons occupied the position  of  an  Assistant Engineer and a Junior Engineer and were subordinates of  the appellant.  On June 27, 1964 a first information report  was lodged in the Directorate of Vigilance and  Anti-Corruption, Madras and the case recorded as 3/AC/64.  The offences to be investigated  into  were under sections 161 and 165  of  the Indian Penal Code and s. 5 (1) (a) and (d) of the Prevention of  Corruption Act.  The complaint was made by  Ranganathan, Deputy   Superintendent  of  Police,  Vigilance  and   Anti- Corruption  Department to the Additional  Superintendent  of Police in the same department.  It is pertinent to note that the  Directorate of Vigilance and Anti-Corruption which  had been  set up under a Government order dated 8th  April  1964 was  declared to be a ’police station’ under clause  (s)  of sub-section  (1)  of  section  4 of  the  Code  of  Criminal Procedure  by  a  notification dated May  25.  1964  and  by another notification of the same date the Governor of Madras conferred  upon  the  Director and  the  Superintendents  of Police of the said Directorate all the ordinary powers of  a Magistrate  of  the  First Class under section  5-A  of  the Prevention of Corruption Act within the limits of the  whole of  .he  State of Madras except the  Presidency  Town.   The complaint by Ranganathan to the Additional Superintendent of Police,  Vigilance  and  Anti-Corruption,  gave  details  of various  malpractices with which the appellant was  charged. He was inter alia said to have obtained various articles  of furniture with the help of Sivasubrahmanyam and  Chidambaram mentioned above by paying only a small fraction of the  cost -and  asking them to adjust the balance by manipulations  of the  muster rolls claims.  He was also said to have got  his residence  whitewashed  in a similar manner.   It  was  also alleged  against him that he had constructed a  bungalow  by diverting  building materials allotted for the  construction of  ’the  Cauveri bridge at Tiruchinapalli.   The  complaint wound up with a paragraph to the effect that a criminal case would  be registered against him as a regular  investigation alone would facilitate the collection 9 3 5 of additional evidence by way of recovery of valuable things



which  he  had  obtained from his  subordinates  by  various illegal  means and in addition more  incriminating  evidence was  likely  to be ,forthcoming  during  the  investigation. Sanction   to  prosecute  the  appellant  was  obtained   on September 27, 1964 and a charge sheet was filed against  the -appellant  in  the court of the Special  Judge,  Madras  on October  5, 1964 numbered as C.C. No. 10 of 1964.   No  less than 47 witnesses had been examined during the investigation following the first information report and at least nine  of them  had been previously examined at what was termed  as  a "preliminary or detailed enquiry". No  less  than 19 malpractices were-alleged against  him  in different  paragraphs of the charge sheet and the  appellant was charged with having obtained for himself or for  members of his family various valuable things from his  subordinates by corrupt and illegal means and by abusing his position  as a  public servant.  The. charges were for  offences  already mentioned. In the enquiry the appellant was supplied with copies of re- cords  on which the prosecution proposed to  rely  including the  statements recorded by the investigating officer  which according ’IO the appellant showed prima facie that a number of  public  servants  who  had  given  the  statements  were themselves  responsible for commission of  various  offences including  falsification of accounts and forgery  of  public records. Before the Special Judge the appellant moved an  application for  discharge  under  s.  251-A of  the  Code  of  Criminal Procedure  on the ground that the charges against  him  were groundless.   In that application he also complained  :  (a) that the instances alleged against him related mostly to his personal  matters unconnected with his  official  functions; (b)  that  none of the items referred to in the  charge  had been  handed over to or delivered to him for the purpose  of securing  an advantage in order to attract s.  5(1)(d)  read with  s. 5(2) of the Prevention of Corruption Act,  and  (c) that on the admitted statements of the public servants  they were liable to be charged with various offences -and he  had been greatly prejudiced by discriminatory treatment. While  holding  that  there was no basis  of  charging  thee appellant under s. 165 I.P.C. or under s. 5(2) read with  s. 5(1)(b) of the Prevention of Corruption Act, the Judge  held that a charge could be framed against him under s. 5(2) read with   s.  5(1)(d)  of  the  Act.   He  observed  that   the "investigating   officers  evidently  felt  that  ,if   they arraigned the subordinate officers along with the  appellant the case may fail for lack of evidence." 9 3 6 Against  that order dated January 16, 1965 the  Public  Pro- secutor  Preferred Cr.  R.C. 294 of 1965 and  the  appellant preferred  Cr.M.P. 934 of 1965 under s. 561-A of  the  Code, for  quashing  the proceedings and discharging  him  as  the charge  was  groundless.   The  appellant  filed.  two  writ petitions  before the High Court, namely, one for a writ  of mandamus  directing the forbearing from prosecution of  C.C. No.  10  of 1964 and a second for a writ  of  certicrari  to quash the order of the Special Judge mentioned above.  There was  a petition under ss. 435/439 of the Criminal  Procedure Code for revision of the order of the Special Judge and  one under s.  561-A of the Code for quashing his said order. The  High  Court dealt with all the Writ Petitions  and  the different allied matters together.  Broadly speaking, it was urged before the High Court: 1.There   had  been  such  a  violent  departure  from   the provisions  of the Code in the matter of  investigation  and



cognizance of offences as to amount to denial of justice and to call for interference by the issue of prerogative writs. 2.  The investigation and prosecution were wholly mala  fide and had been set afoot by his immediate junior officer , one Sivasankar Mudaliar, Superintending Engineer, Madras who was related to the Chief Minister of the State. 3.  The appellant’s case was being discriminated from  those of  others  who  though  equally  guilty  according  to  the prosecution  case were not only not being proceeded  against but were promised -absolution from all evil consequences  of their misdeeds because of their aid to-the prosecution. In his petition for the issue of a writ of mandamus ’by  the High  ,-Court  the  appellant stated that  it  was  only  by perusing copies of the statements furnished to him under  s. 173(4) Cr.  P.C. that he -found that 18 public servants  had stated  having given him valuables without any  or  adequate consideration and that it was at his instance that they  had committed  offences  of criminal conspiracy under  S.  120-B I.P.C.  and  criminal breach of trust of  Government  moneys under  S. 409 I.P.C. besides falsification of accounts  etc. His  positive  case was that the Director of  Vigilance  and Anti-Corruption  had obtained signed statements  which  were confessional  and self-incriminatory from persons  who  were going  to be called .as witnesses by giving them  assurances of  immunity.   These  assurances  were  not  only  directed towards  immunising  them from prosecutions  but  ;Also  any departmental action likely to affect adversely the makers of the  statements.   The  case of  discrimination  -was  based mainly  on  the  above averments that  the  Directorate  had single  him  out-leaving-others  who  were  equally  guilty. According 93 7 to  the  appellant this also showed mala  fides  and  malice directed towards him. Another  main argument which’ was canvassed before the  High Court related to the applicability of ss. 162 and 163 of the Criminal  Procedure  Code and the effect  of  the  violation thereof, if any.  For the appellant, it was argued that  the taking of signed statements from persons who were eventually going  to be examined in the criminal proceedings by  giving them assurances of immunity and thereafter relying on  their subsequent unsigned statements those under S. 161(3) of  the Code  for the purpose of S. 173 amounted to a fraud  on  the procedure established by law.  It was contended that as  the statements recorded under s. 161 were the material on  which the  Special  Judge had to consider whether the  charge  was groundless  under  S.  251-A of  the  Code,  the  illegality "corroding   the   foundation  vitiated  the   enquiry   and necessitated the discharge of the appellant." The High Court examined the case made out in the  affidavits of the appellant and the counter affidavits on behalf of the State.   It expressed great dissatisfaction at the  variance in the attitude of the State in the different affidavits  in that  whereas  in the first counter affidavit there  was  no contradiction of the appellant’s averment that assurances of immunity  had  been  given to all the  18  persons  examined before the lodging of the first information report, the plea put  forward  in  a  subsequent  affidavit  was  that   such assurance  had been given only to two persons,  namely,  the two  subordinates  of the appellant and  only  after  signed statements  had been given by them.  The Court  was  however not  satisfied  that  a direction was  called  for  for  the prosecution  of the subordinate officers also.  Further  the High  Court  was  not impressed with  the  plea  of  hostile discrimination against the appellant observing that although



the  "policy of not securing judicial pardon to  accomplices by bringing them as approvers but retaining them at the sole discretion  of  the prosecution might be open  to  question" "that  cannot  by itself invalidate the arraignment  of  the persons  actually  put  up for trial"  specially  where  the person  charged  was in a position to  wield  influence  and power  over those asked by him to aid him in  commission  of misconduct. Although  not  of  the  view  that  the  record  before   it established  a case of mala fide or  hostile  discrimination against  the appellant which called for the quashing of  the proceedings,   the  High  Court  took  the  view  that   the investigation  of  the case under Chapter XIV  of  the  Code should  be  held  to have commenced  when  Ranganathan,  the Deputy Superintendent of Police, started the enquiry on 15th April  1964  on the reasoning that though  "an  enquiry  may start  with  shadowy beginnings and vague  rumours,  once  a police  officer  forms  a definite opinion  that  there  are grounds for investigating a L1OSup.CI(NP)70-15 938 crime,  an  investigation  under  the  Code  has   started". According to the High Court-               (a)   "substantial  information  and  evidence               had  been gathered before the so-called  first               information report was registered".               (b)   the police officer who had conducted the               enquiry  prior to 27th June 1964 was a  person               competent to enter upon investigation; -               (c)   admittedly  there  had been  an  earlier               probe  by the, Vigilance Department  prior  to               10th  March 1964 on the basis whereof  he  was               not re-employed;               (d)   there  was definite information  to  the               Government contained in the report dated  13th               March  1964 relating to corrupt activities  of               the appellant; and               (e)   the   "delay   on  the   part   of   the               investigating officer in registering the first               information report may be an irregularity, but               certainly  the statements recorded  subsequent               to the receipt of definite information of  the               commission of an offence in gathering evidence               of the offence would nonetheless be statements               recorded  during investigation and hit  by  s.               162 of the Criminal Procedure Code." With  regard to the disregard of the provisions of  ss.  162 and 163 of the Code, the High Court observed that the result of  taking  his signature to a statement would be to  tie  a witness  down to the statement or at least to give  him  the impression  that  he would not be free to make  a  different statement at the trial but the statement of a witness at the trial would not become inadmissible by reason of his  having signed  a  statement  before going  into  the  witness  box. Reference was made to several decisions bearing on s. 162 of the Code and in particular to Zahiruddin v. King  Emperor(1) that  the evidence of a witness who had previously signed  a statement in writing did not become inadmissible or  vitiate the  whole  proceeding although the value  of  the  evidence would be seriously impaired thereby. The  court  seems to have been of the view that it  was  the duty of the Magistrate or the presiding Judge on discovering that a witness had while giving evidence, made material  use of  a statement given by him to the police to disregard  the evidence of that witness as inadmissible.  The High  Court’s



definite  conclusion  was that there had been  a  deliberate violation of the provisions of the Code (1)  74 I.A. 65, 74.                             939 and a departure from a recognised and lawful procedure,  for investigation. With  regard to the propriety of  taking  self-incriminatory statements even when there had been no assurance of immunity from  prosecution,  the  High Court  observed  that  as  the learned  Advocate General for the State had stated that  the record   of  manipulations  in  the  muster  rolls  by   the subordinate officers of the appellant had to be  disregarded as  not  proper material for consideration as  the  "Special Judge had not considered these vitiating features in  regard to  the  documents  placed before  him  while  ordering  the framing of charges against the appellant" it was unnecessary to examine the question at length. The  High Court found partly in favour of the appellant  and held  that  the  order of the Special  Judge  directing  the framing  of  a charge on consideration  of  the  statements- before him under S. 173(4) of the Code without reference  to the  illegalities  in the investigation should  be  quashed. The High Court further directed the Special Judge to take up the  matter once again and consider the case excluding  from consideration  all statements recorded under ss. 161(3)  and 164   which  were  found  vitiated  in  the  light  of   the observations  made  by it.  A direction was  also  given  to exclude   portions  of  the  statements  which  were   self- incriminatory  and  confessional in character of  the  maker even if the same did not otherwise violate the provisions of ss. 162 and 163 of the Code.  In our view the procedure adopted against the appellant be- fore  the laying of the first information report though  not in  terms  forbidden  by  law,  was  so  unprecedented   and outrageous as to shock one’s sense of justice and  fairplay. No  doubt when allegations about dishonesty-of a  person  of the appellant’s rank were brought to the notice of the Chief Minister  it  was  his duty to direct an  enquiry  into  the matter.   The Chief Minister in our view pursued  the  right course.  The High Court was not impressed by the  allegation of  the appellant that the Chief Minister was moved to  take an  initiative at the instance of a person who was going  to benefit by the retirement of the appellant and who was  said to  be  a relation of the Chief Minister.   The  High  Court rightly  held that the relationship between the said  person and the Chief Minister, if any, was so distant that it could not  possibly  have influenced him and we are  of  the  same view.   Before a public servant, whatever be his status,  is publicly  charged with acts, of dishonesty which  amount  to serious  misdemeanour or misconduct of the type  alleged  in this  case  and a first information is lodged  against  him, there  must  be some suitable preliminary enquiry  into  the allegations by a responsible officer.  The lodging of such a report  against  a  person,  specially  one  who  like   the appellant occupied the top position in a department, even if baseless, would do incalculable 940 harm  not  only  to the officer in  particular  but  to  the department  he belonged to, in general.  If the,  Government had set up a Vigilance and Anti-Corruption Department as was done  in  the State of Madras and the  said  department  was entrusted  with enquiries of this kind, no exception can  be taken  to an enquiry by officers of this department but  any such  enquiry must proceed in a fair and reasonable  manner. the  enquiring officer must not act under  any  preconceived



idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference  that he was bent upon securing the conviction  of the  said person by adopting measures which are of  doubtful validity  or sanction.  The means adopted no less  than  the end to be achieved must be impeccable.  In ordinary  depart- mental proceedings against a Government servant charged with delinquency,  the  normal  practice before the  issue  of  a charge  sheet  is  for some one in authority  to  take  down statements of persons involved in the matter and to  examine documents which have a bearing on the issue involved.  It is only  thereafter  that a charged sheet is  submitted  and  a full-scale  enquiry is launched.  When the enquiry is to  be held  for  the  purpose  of  finding  out  whether  criminal proceedings are to be resorted to the scope thereof must  be limited to the examination of persons who have knowledge  of the affairs of the delinquent officer and documents  bearing on  the same to -find out whether there is prima facie  evi- dence of guilt of the officer.  Thereafter the ordinary  law of  the  land must take its course and  further  inquiry  be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report. The  Code  of Criminal Procedure is  an  enactment  designed inter   alia  to  ensure  a  fair  investigation   ’of   the allegations   against   a  person  charged   with   criminal misconduct.  Chapter XIV of the Code gives special powers to the  police to investigate into cases whether cognizable  or non-cognizable in the manner provided therein.  Section  160 empowers a police officer making an investigation to require the  attendance before himself of any person who appears  to be  acquainted with the circumstances of the case.   Section 161  (1 ) gives him the right to examine orally  any  person supposed  to be acquainted with the facts and  circumstances of  the case.  Although bound to answer question put to  him sub-s.  (2) of the section exempts a person  from  answering any question which would have a tendency to expose him to  a penal  charge  or to a penalty for forfeiture.   Under  sub- s.(3) the police officer is empowered to reduce into writing any statement made to him in the course of such examination. Section  162(1) expressly lays down that such  -a  statement made  in  the  course of an investigation  if  reduced  into writing is not to be signed by the maker thereof and no part of such statement except as expressly provided is to be used 941 for  any purpose at any enquiry or trial in respect of  any, such  offence  under  investigation at  the  time  when  the statement was made.  The only exceptions to these are  cases when the statement falls under s. 32 cl.(1) of the  Evidence Act  and  to statements which are covered by S. 27  of  that Act.   The  obvious idea behind this provision  is  that  an over-zealous  police officer may not misuse his position  by getting  a  statement in writing signed by the  maker  which would  tend to pin him down to the statement but  leave  him free  to  speak out freely when called to give  evidence  in court.  In order that statements made in the course of  such investigations   be   recorded  without  any   pressure   or inducement by an investigating officer S., 163(1) lays  down an  embargo  on  the  investigating  authorities  using  any inducement,  threat  or  promise to the  maker  which  might influence  his mind and lead him to suppose that thereby  he would  gain any advantage or avoid any evil in reference  to his  conduct as disclosed in the proceedings.  It is  to  be noted that whereas the other sections hereinbefore  referred to  contain  guidelines for the police  officers  in  making investigation,  this  section expressly  provides  that  any



person in authority even if he is not a police officer  must guide  himself accordingly, in case where a crime is.  being investigated  under this Chapter of the Code.  All  this  is however subject to the provisions of sub-s.(2) which  allows a  person to make any statement against his own interest  by way of confession if he does so of his own free will.   Even then the law enjoins by S. 164 that such a statement or con- fession  can only be recorded by a Magistrate of  the  Class mentioned therein and even such a Magistrate must explain to the person making the confession before recording the  same, that he is not bound to make it and if he does so it may  be used  as evidence against him.  Further the Magistrate  must make  sure  that  the  person  was  making  the   confession voluntarily  and  not  acting under  any  pressure  from  an outside source. All the above provisions of the Code are aimed at securing a fair  investigation into the facts and circumstances of  the criminal  case  : however serious the  crime  and  howsoever incriminating  the  circumstances may be  against  a  person supposed  to  be  guilty of a crime  the  Code  of  Criminal Procedure aims at securing a conviction if it can be had  by the  use  of  utmost fairness on the part  of  the  officers investigating into the ’crime before the lodging of a charge sheet.  Clearly the idea is that no one should be put to the harassment  of  a criminal trial unless there are  good  and substantial reasons for holding it. Section  169  of the Code empowers a notice  officer  making investigation  to release an accused person from custody  if there  is  no sufficient evidence or  reasonable  ground  of suspicion  to justify the forwarding of him to a  Magistrate by taking a bond from him with or without sureties,  Section 173 enjoins upon a police officer 942 to  complete the investigation without unnecessary  delay  a IInd forward to a Magistrate empowered to take cognizance of the  offence a report in the form prescribed  by  Government setting  forth  inter  alia the names of  the  parties,  the nature of the information and the names of -the persons  who appear  to be acquainted with the circumstances of the  case and to communicate to the State Government the action  taken by  him to the person, if any, by whom information  relating to  the commission of the offence was first given.   When  a report  has been made under this section it is the  duty  of the  officer in charge of the police station to  furnish  to the accused before the commencement of the enquiry or  trial a  copy  of  the report above mentioned  and  of  the  first information  report under S. 154 and of all other  documents or  relevant extracts on which the prosecution  proposes  to rely  including  the  statements and  confessions,  if  any, recorded under s. 164 and the statements recorded under sub- s.(3) of s. 161 of all persons whom the prosecution proposes to examine as its witnesses. In our view the enquiring officer pursued the  investigation with  such  zeal and vigour that he even enquired  into  and took  down statements of persons who were supposed  to  have provided the appellant with articles of food worth  trifling sums of money long before the launching of the enquiry.  The whole course of investigation as disclosed in the affidavits is  suggestive of some predetermination of the guilt of  the appellant.  The enquiring Officer was a high-ranking  police officer’  -and it is surprising that simply because  he  was technically  not exercising powers under Chapter XIV of  the Criminal  Procedure Code in that a formal first  information report  had  not been lodged he overlooked  or  deliberately overstepped  the  limits of investigation contained  in  the



said  Chapter.  He recorded self-incriminating ’  statements of a number of persons and not only secured their signatures thereto  obviously  with the idea of pinning  them  down  to those  but went to the length of providing  certificates  of immunity  to at least two of them from the evil  effects  of their  own  misdeeds  as recorded.  It  was  said  that  the certificates  were  given  after  the  statements  had  been signed.   It  is difficult to believe  that  the  statements could  have  been made before the grant of  oral  assurances regarding  the issue of written certificates.  There can  be very  little-doubt  that  the persons who  were  given  such immunity  had made the statements  incriminating  themselves and  the  appellant under inducement, threat or  promise  as mentioned in s. 24 of the Indian Evidence Act. It  is  no  doubt the duty of the State to  track  down  and punish  all delinquent officers but it is certainly  not  in accordance  with justice and fairplay that their  conviction should be sought for by such questionable means. 943 The office of the Directorate of Vigilance and  Anti-Corrup- tion  Department,  Madras became a police  station  for  the purpose of the Criminal Procedure Code under sub-cl. (s)  of sub-s. (1) of s. 4 of the Code by a notification dated  25th May,  1.964. Prior to that it was only functioning  under  a Memorandum  No. 1356/ 64-2 dated 8th April 1964 when it  was set up to ensure the maintenance of the highest standard  of integrity   and   probity  in  public  servants.    If   the investigation had been taken up after May 25, 1964 it  would have  been  one under Chapter XIV of the  Code  without  any doubt. Although  we are not disposed to concur with the  view  that the  investigation under Chapter XIV of the Code started  as early as 15th April 1964 we are of opinion that there was no warrant  for  the Vigilance and  Anti-Corruption  Department which  was  in  the  charge of one  of  the  highest  police officers of the State to disregard the provisions of ss. 162 and   163   of  the  Code  of   Criminal   Procedure.    The investigation  was of a type more I thorough  and  elaborate than is usually ’to be found : as noticed already it was  in charge  of a senior police officer who had the I  assistance of  two police inspectors in the matter.  No blame  attaches to  them for making enquiries of a large number  of  persons but  the  whole  course of investigation  is  suggestive  of guidance  by  someone who was intimately familiar  with  the affairs  of the appellant and his department  ’and  throwing out  scents which the investigating officers were  only  too keen  to  pick up and follow.  The appellant may  have  been guilty of all the charges levelled against him but we cannot approve of the manner in which the investigation against him was conducted and an attempt made to lay a guideline for the persons  who  were to be cited as prosecution  witnesses  in their  evidence at the trial.  To say the least it would  be surprising  to find so many persons giving confessional  and self-incriminatory  statements unless they had been  assured of immunity from the evil effects thereof whether oral or in writing. There  can be no   excuse for the Directorate  of  Vigilance and Anti-Corruption for proceeding in the manner adopted  in the  Preliminary    enquiry before the lodging of the  first information    report.As soon as   it became clear to  them- and according to the High Court it was before March 13, 1964 in which we concur-that the appellant appeared to be  guilty of  serious  misconduct. it was their duty to lodge  such  a report and proceed further in the investigation according to Chapter XIV of the Code.  Their omission to do so cannot but



Prejudice  the  appellant  and the State  ought  not  to  be allowed  to take shelter behind the, plea that although  the steps   taken  in  the  preliminary  enquiry  were   grossly irregular  and unfair, the accused cannot  complain  because there was no infraction of the rules of the ’Evidence Act or the provisions of the Code, 944 In  our view the granting of amnesty to two persons who  are sure  to  be examined as witnesses for the  prosecution  was highly  irregular and unfortunate.  It was  rightly  pointed out by the High Court               "Neither  the Criminal Procedure-Code nor  the               Prevention  of Corruption Act  recognises  the               immunity  from prosecution given  under  these               assurances  and that the grant of  pardon  was               not in the discretion of police authorities." We are not impressed by the argument that the appellant  was singled  out  from  a number of persons who  had  aided  the appellant  in the commission of various acts  of  misconduct and  that they were really in the position  of  accomplices. It  was pointed out by the High Court that  the  prosecution may have felt that "if the subordinate officers were  joined along with the appellant as accused the whole case may  fall for lack of evidence".  In our view, if it be a fact that it was  the  appellant  who  was the  head  of  the  department actively   responsible  for  directing  the  commission   of offences  by  his subordinates in a  particular  manner,  he cannot  be  allowed  to  take  the  plea  that  unless   the -subordinates  were also joined as co-accused with  him  the case should not be allowed to proceed. It  was contended before us by the learned  Advocate-General for  the  State of Madras that both the High Court  and  the Special  Judge  had  gone wrong  in  the  interpretation  of s.5(1)(b) of the Prevention of Corruption Act.  Having heard counsel  on both sides, we find ourselves unable to  sustain the  view  of the High Court on this  point.   Omitting  the portions of the section which are not relevant it reads :               "5(1)  A public servant is said to commit  the               offence of criminal misconduct-               (a) . .      ..        ..        ..               (b) if he habitually accepts or  obtains......               for  himself .... any valuable  thing  without               consideration or for a consideration which  he               knows to be inadequate, from any person  (whom               he  knows  to have been, or to be, -or  to  be               likely  to be concerned in any  proceeding  or               business transacted or about to be  transacted               by  him,or)  having any  connection  with  the               official functions of himself, or The  portion of the sub-section within brackets in our  view qualifies,, 94 5 the  expression "any person" in the same way as the  portion reading "having any connection with the official function of himself".   So read ,,any person having any connection  with the  official  functions  of  himself"  would  include   any subordinate  of the person who accepts  the-valuable  thing. The  words  "of himself" do not refer to the person  in  the expression  "any person" but refers to the pronoun  "he"  at the  beginning  of the sub-section.  A  subordinate  of  the public servant would have connection with his official  fun- ctions.  In our view the sub-section aims at folding  within its ambit not only outsiders "who are likely to be concerned in  any  proceeding or business transacted or  about  to  be transacted"  by the public officer but also any  subordinate



or  any  other  person who is connected  with  the  official functions of the public servant. In the result all the appeals are dismissed.  Although we do not  endorse the view of the High Court with regard  to  the date  of  the commencement of the investigation  so  far  as Chapter XIV of the Code of Criminal Procedure is  concerned, we do hold that serious irregularities were committed in the so-called  "full-fledged  enquiry" to the prejudice  of  the appellant.  We do not however feel that there is any need to modify the directions given by the High Court to the Special Judge  who will follow the directions of the High  Court  in addition to the modification indicated by us. V.P.S.                                              Appeal’s dismissed. 946