http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: THE STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: MUBARAK ALI

DATE OF JUDGMENT: 03/02/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1959 AIR  707            1959 SCR  Supl. (2) 201  CITATOR INFO :  D          1964 SC  28  (7)  REI        1964 SC 221  (10)  R          1968 SC1292  (5,7)  D          1971 SC 508  (15)  RF         1971 SC1525  (14)  R          1972 SC 886  (5)  R          1972 SC2077  (14)  R          1973 SC 913  (14)  RF         1984 SC 718  (21)  RF         1992 SC 604  (119,121,132,133)

ACT:        Criminal Law-Public servant receiving bribe-Investigation by        officer  below  rank  of Deputy  Superintendent  of  Police-        Permission  to investigate granted by  Magistrate-Order  not        disclosing material before Magistrate nor disclosing reasons        for  order-Permission, if invalid-Investigation,  scope  of-        Prevention  of Corruption Act, 1947 (2 of 1947). s.  5A-Code        of Criminal Procedure, 1898 (Act 5 of 1898), s. 4(1).

HEADNOTE: Section  5A of the Prevention of Corruption Act, 1947,  pro- vided:  "  No  police officer below the  rank  of  a  deputy Superintendent  shall  investigate  any  offence  punishable under s.  161, s. 165 or s. 165A of the Indian Penal Code or under  s. 5(2) of the Act without the order of a  magistrate of the first class ............". (1)  (1880) L.R. 7 I.A. 107. 26 202 On  January  11,  1955, B, the manager of  a  company,  gave information  to the Sub-Inspector of Police, Special  Police Establishment,  that  the respondent, an  Assistant  Station Master,  was  demanding  a  bribe  for  sending  the   goods belonging to the company by rail.  The Sub-Inspector,  after assisting  B  to  trap the respondent, came  on  the  scene, questioned the latter, searched his person and recovered the marked notes and other articles from him.  The Sub-Inspector filed an application before the District Magistrate, stating that  he  had been deputed to investigate the case  and  the permission might be given to him to do so under s. 5A of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

Act.   On  the application the Magistrate passed  the  order "permission  given." Neither the application nor  the  order made  thereon disclosed that any material was placed  before the Magistrate on the basis of which he gave permission.   A charge-sheet  was  filed  before  the  Special  judge.   The respondent  filed  objections questioning, inter  alia,  the validity  of  the Magistrate giving permission to  the  Sub- Inspector  to  make the investigation.   The  Special  judge disallowed  the objection.  On revision, the High Court  set aside the order of the Special judge with a direction that " in order to rectify the defects and cure the illegality " he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remained pending on his  file.  The State preferred an appeal against the  order of the High Court by special leave:- Held,  that  the  statutory safeguards under S.  5A  of  the Prevention of Corruption Act must strictly be complied  with for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecutions. A  Magistrate  cannot surrender his discretion to  a  police officer, but must exercise it having regard to the  relevant material  made  available to him at the  stage  of  granting permission.   He  must  also  be  satisfied  that  there  is sufficient   reason   owing  to  the   exigencies   of   the administrative convenience to entrust a subordinate  officer with the investigation. Where an officer other than the designated officer seeks  to make  an investigation, he should get order of a  Magistrate empowering  him to do so before he proceeds to  investigate, and  it  is desirable that the order giving  the  permission should ordinarily on the face of it disclose the reasons for giving permission. Where  objection  is  taken by the accused  that  the  order giving  permission  was  invalid, the  prosecution,  at  the earliest  opportunity, must adduce evidence to  support  the contention  that  the Magistrate gave  the  permission  only after having satisfied himself on the advisability of  doing so on the material placed before him. H.   N.  Rishbud & Inder Singh v. State of Delhi,  [1955]  1 S.C.R.  1150  and Viswabhusan Naik v. The State  of  Orissa, [1955] 1 S.C.R. 92, relied on. 203 Held, further, that an investigation starts after the police officer  receives information in regard to an  offence,  and that  as  under s. 5 Of the Act attempt to obtain  from  any person any gratification is in itself an offence, any  steps taken  by the Sub-Inspector after the information was  given to him amounted to investigation.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 141  of 1958. Appeal  by special leave from the judgment and  order  dated November  28,  1957,  of the Madhya Pradesh  High  Court  in Criminal  Revision  No.  78  of 1957,  arising  out  of  the judgment  and order dated August 21, 1957, of the  Court  of Special Judge at Gwalior in File No. 2/57 Special Case. G. C. Mathur and R. H. Dhebar, for the appellant. The respondent did not appear. 1959.   February 3. The Judgment of the Court was  delivered by SUBBA  RAO,  J.-This is an appeal by special  leave  against the,  Judgment  of  the  High Court  of  Madhya  Pradesh  at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

Jabalpur  directing the Special Judge, Indore, to order  the Deputy   Superintendent   of   Police  to   carry   on   the investigation afresh.  The facts are simple. One  Shri  Mohinder  Nath Bhalla was the  manager  of  Daisy Sewing  Machine  Co.  Ltd., Bhopal.  On  January  11,  1955, between  12 and 1 p. m., he contacted the  Sub-Inspector  of Police, Special Police Establishment, Gwalior, and gave  him the following information:    The  company had opened  their stall in the Gwalior     Mela  and he (Shri Bhalla)  had  to book empty  wooden  cases of machine and machine parts from Gwalior Mela, to Now Delhi.  When lie went to the station to enquire  for  booking  the said cases,  the  Station  Master demanded  annas ten for each case as illegal  gratification, but  he  did not agree to it.  Subsequently,  the  Assistant Station  Master agreed to accept annas eight for  each  case and  asked him to bring the wooden cases between 2 and 4  p. m.  on  the  same  day, i.e., January  11,  1955.   On  this allegation lie requested the police to take action " to stop the said sort of 204 corruption  ".  The  police  officer  went  along  with  the informant  to his stall at Gwalior Mela and saw  the  twenty wooden  cases-twelve big and eight small-ready for  booking. The  said  Shri  Bhalla  gave the  police  officer  a  typed complaint signed by him and duly attested by two  witnesses. With the assistance of the police officer, a trap was  laid. The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses.  The said rupee notes  were given to Shri Bhalla in the presence of the witnesses.  Shri Bhalla  was  instructed to pay the amount to  the  Assistant Station  Master when demanded by him in such a  manner  that the  witnesses could overhear the conversation and also  see the Assistant Station Master taking the bribe.  He was  also told  that on his giving a signal, the police would come  on the  scene.  The plan was carried out in detail  as  agreed. The  Assistant Station Master, after some  bargaining,  took the bribe, and after the act of bribery was completed,  Shri Bhalla gave the prearranged signal.  The Sub-Inspector  then went to the Station Office and disclosed his identity to the Assistant  Station Master in the presence of  witnesses  and asked  him to produce the money taken by him as bribe.   The Assistant  Station  Master,  when  questioned  by  the  Sub- Inspector,  gave  him his name and also produced  the  notes which  he had kept in his pocket.  The police  officer  took those  notes and counted them.  The numbers on  those  notes tallied  with  those  noted  in  the  memorandum.   He  then searched  the  person of the Assistant  Station  Master  and secured  the  articles found on him.  He also  searched  the person  of Shri Bhalla and took from his shirt two  currency notes,  which  he  did not give  to  the  Assistant  Station Master,  as the bargain was struck at a smaller amount,  and secured  the same.  The numbers of those notes also  tallied with  the  corresponding numbers noted  in  the  memorandum. Thereafter,  a  memorandum  of the  articles  recovered  was prepared  in  the  presence of the witnesses  and  was  duly attested  by them.  The forwarding note, together  with  the record copy of the                             205 R/R prepared in respect of the booking of the twenty  wooden cases  to  New Delhi, was taken possession  of  and  another memorandum was prepared in regard to them.  An inventory  of the  twenty  wooden  cases lying on the  platform  near  the weighing  machine as booked by the Assistant Station  Master was  also  prepared  and  the  same  was  attested  by   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

witnesses.    The  Sub-Inspector,  having  regard   to   the aforesaid  facts,  came  to the conclusion  that  the  facts disclosed offences punishable under ss. 120-B and 161 of the Indian  Penal  Code  and  s.  5(2)  of  the  Prevention   of Corruption Act, 1947 (2 of 1947), had been committed by  the Assistant   Station  Master,  Shri  Mubarak  Ali,  and   the pointsman, Shri Mool Chand, of Golakamandir railway station. On  the same day he sent a report of the aforesaid facts  to the Special Police Establishment Office, Madhya Bharat.  The office  registered it on January 14, 1955, in its  register. Seven  days  thereafter,  on  January  21,  1955,  the  Sub- Inspector   filed  an  application  before  the   Additional District   Magistrate   (Judicial),  Gwalior,   asking   for permission  to investigate the offence under  the  aforesaid sections.   The record does not disclose what further  steps were  taken by the Sub-Inspector after he obtained the  said permission  from  the Additional  District  Magistrate.   On October 1, 1955, a charge-sheet was filed before the Special Judge, Anti-Corruption, Indore.  It appears from the  record that  soon  after  the  case was taken  up  for  trial,  the respondent  filed  objections questioning, inter  alia,  the validity of the order of the Additional District  Magistrate giving   permission  to  the  Sub-Inspector  to   make   the investigation.  But the scope of the objections is not clear as they have not been placed before us.  It appears that the Special  Judge intended to take evidence on the question  of delegation  of power of investigation, but  the  prosecution applied  for  adjournment on the ground that an  appeal  had been  filed  in  the  High Court  against  a  similar  order directing  the  prosecution  to give evidence  on  the  said question  and  the  same was  pending  there.   The  learned Special Judge, though inclined not to give the  adjournment, made an order giving an adjournment 206 of three weeks on December 3, 1955, on the ground that " the Special  Police  Establishment  Office might  not  have  any grievance on that account ". We do not know what  transpired between  December 3, 1955, and the date of disposal  of  the objections by the Special Judge, i. e., August 21, 1957.  On August  21,  1957, the learned Special Judge made  an  order discharging  Shri  Mool Chand, the pointsman,  and  charging Shri Mubarak Ali, the Assistant Station Master, under s. 161 of  the  Indian Penal Code.  By the said order  the  learned Judge, presumably an officer different from the one who gave the  adjournment  in 1955, disallowed the objection  of  the accused  on the ground that on the date when the  Magistrate gave the sanction, there were many papers in connection with a  case  against the accused, on observing which  the  Magi- strate  could  have satisfied himself  whether-there  was  a prima  facie case or not against the accused and that  there was  no  reason to believe that at the time  of  giving  the sanction,  the  Magistrate did not peruse the  papers.   The accused  preferred a Revision against the said order to  the High  Court of Madhya Pradesh.  The High Court came  to  the conclusion that the Sub-Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and  sufficient reasons  for  authorising the officer of a  lower-  rank  to conduct the investigation but had given the permission as  a mere  matter of routine.  In the result, the High Court  set aside  the order of the Special Judge with a direction  that in  order to rectify the defects and cure the illegality  he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending  on his file ". The State, preferred the present appeal  against

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

the said order of the High Court. Learned  Counsel, appearing for the State, raised before  us two points: (i) the High Court was not justified in  holding that the Magistrate gave the permission as a mere matter  of routine without satisfying himself as to the advisability of giving  such  permission; (ii) the High Court was  wrong  in holding 207 that  the  investigation  started  ten  days  prior  to  the obtaining  of  permission  of the  Magistrate  by  the  Sub- Inspector. To  appreciate the first contention, it is necessary to  set out  some  of the relevant provisions of The  Prevention  of Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act. Section  3 (as it stood before the Prevention of  Corruption (Amendment) Act, 1955 (50 of 1955): "An  offence punishable under section 161 or section 165  or section 165A of the Indian Penal Code (Act 45 of 1860) shall be deemed to be a cognizable offence for the purposes of the Code   of  Criminal  Procedure,  1898  (Act  5   of   1898), notwithstanding  anything to the contrary contained  therein ". Section 4. " (1) Where in any trial of an offence punishable under  section 161 or section 165 of the Indian  Penal  Code (Act  45 of 1860), it is proved that an accused  person  has accepted  or obtained, or has agreed to accept or  attempted to  obtain,  for  himself  or  for  any  other  person,  any gratification   (other  than  legal  remuneration)  or   any valuable thing from any person, it shall be presumed  unless the  contrary  is proved that he accepted  or  obtained,  or agreed to accept or attempted to obtain, that  gratification or  that valuable thing, as the case may be, as a motive  or reward such as is mentioned in the said section 161, or,  as the   case   may  be,  without  consideration   or   for   a consideration which he knows to be inadequate ". The Act was passed, as the preamble indicates, to make  more effective  provisions  for  the prevention  of  bribery  and corruption   among   public  servants.   It   introduced   a definition   of  the  offence  of  criminal  misconduct   in discharging  an official duty and new rules  of  presumption against accused in the case of the said offence.  But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gained, s. 5A was inserted in the Act to  protect the  public servants against harassment  and  victimization. If  it  was in the interest of the  public  that  corruption should be eradicated, it was equally in the interest of  the public that honest public servants should be able to 208 discharge  their  duties  free  from  false,  frivolous  and malicious accusations.  To achieve this object, ss. 5A and 6 introduced  the  following  two safeguards:  (1)  no  police officer below the rank-(a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police, (b) in the presidency town of Bombay, of a superintendent of police and  (c)  elsewhere, of a deputy superintendent  of  police, shall  investigate any offence punishable under s.  161,  s. 165 or s. 165A of the Indian Penal Code or under sub-s.  (2) of  s.  5  of the Act, without the  order  of  a  presidency magistrate  or a magistrate of the first class, as the  case may be, or make any arrest therefor without a warrant-see s. 5A;  (2)  no  court  shall take  cognizance  of  an  offence punishable  under s. 161 or s. 164 or s. 165 of  the  Indian Penal Code or under s. 5(2) of the Act, alleged to have been committed  by  a public servant, except  with  the  previous

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

sanction,  of  the appropriate Government-see  s.  6.  These statutory  safeguards  must be strictly complied  with,  for they were conceived in public interests and were provided as a  against frivolous and vexatious prosecutions.   While  in the  case  of  an officer of assured status  and  rank,  the legislature  was  prepared to believe  them  implicitly,  it prescribed  an  additional guarantee in the case  of  police officers  below that rank, namely, the previous order  of  a presidency magistrate or a magistrate of the first class, as the case may be.  The magistrate’s status    gives assurance to the bonafide8 of the investigation.  In              such circumstances,  it is self-evident that a magistrate  cannot surrender  his  discretion  to a police  officer,  but  must exercise  it  having regard to the  relevant  material  made available  to him at that stage.  He must also be  satisfied that there is sufficient reason, owing to the exigencies  of administrative convenience, to entrust a subordinate officer with  the  investigation.  This Court in H. N.  Rishbud  and Inder  Singh  v.  The  State of  Delhi  (1)  emphasised  the necessity  to adhere strictly to the provisions of s. 5A  of the  Act.  Jagannadhadas, J., who delivered the judgment  of the Court, observed at p. 1159: (1)  [1955] 1 S.C.R. 1150.                             209 " 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 cognisable, 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 subsection (4) of section 5 of the  Act as well as to the policy apparently underlying  it, it is reasonably clear that the said provision must be taken to be mandatory ". After  adverting to the argument advanced on behalf  of  the State,learned  Judge  closed the discussion thus  at  p. 1162: "We are, therefore clear  in our opinion that section  5(4) and provisoto 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 inviolation thereof bears the stamp of illegality". This Court again considered the scope of s. 6 of the Act  in Biswabhusan  Naik  v. The State of Orissa (1).  One  of  the questions  raised there was that the sanction given  by  the Government was invalid.  In rejecting that contention  Bose, J., observed at p. 95 : "  The judgment of the Judicial Committee relates to  clause 23  of the Cotton Cloth and Yarn (Control) Order, 1943,  but the principles apply here.  It is no more necessary for  the sanction under the Prevention of Corruption Act to be in any particular  form,  or in writing or for it to  set  out  the facts  in  respect of which it is given than  it  was  under clause   23  of  the  Order  which  their   Lordships   were considering.   The desirability of such a course is  obvious because when the facts are not set out in the sanction proof has  to be given aliunde that sanction was given in  respect of the facts constituting the offence charged, but an (1)[1955] 1 S.C.R. 92. 27 210 omission to do so is not fatal so long as the facts can be, and are provided in  some other way ".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

While  the former decision emphasises the importance of  the protection  given  by  the Act to  public  servants  against harassment, the latter decision points out the  desirability of  giving  all  the  necessary facts  in  an  order  giving sanction-the  same applies to an order of  a  Magistrate-and also  the  necessity of proof aliunde of the said  facts  in case the facts are not disclosed in the sanction.   Applying the  said two principles, we must hold that in a case  where an officer other than the designated officer, seeks to  make an  investigation, he should get, the order of a  Magistrate empowering  him to do so before he proceeds  to  investigate and  it  is desirable that the order giving  the  permission should  ordinarily, on the face of it, disclose the  reasons for giving the permission.  For one reason or other, if  the said salutary practice is not adopted in a particular  case, it is the duty of the prosecution to establish, if that fact is  denied,  that  the Magistrate in  fact  has  taken  into consideration the relevant circumstances before granting the permission  to a subordinate police officer  to  investigate the case. In  the  present  case, though objection was  taken  by  the accused at the earliest stage in 1955 on the ground that the order  giving permission was invalid no attempt was made  by the prosecution, though years have elapsed between the  date of the petition and that of the order of the Sessions Judge, to  adduce any evidence to support the contention  that  the Magistrate  gave  the permission to the  Sub-Inspector  only after satisfying himself on the advisability of doing so  on the material placed before him.  The only material that  was placed  before the Sessions Judge was the application  filed by the Sub-Inspector before the Magistrate seeking the  said permission  and  the  order made by him  thereon.   In  that application  the  Sub-Inspector  stated  that  he  had  been deputed  to  investigate the case and  therefore  permission might be given to him to do so under s. 5-A of the Act.   On that   application,  the  Magistrate  passed  the  order   " permission given ". Neither the application                             211 nor  the order made thereon discloses that any material  was placed  before the Magistrate on the basis of which he  gave the  permission.  Ex facie, it appears to us, just  like  it appeared  to  the High Court, that the  Magistrate  did  not realise the significance of his order giving permission, but only  mechanically  issued  the order on the  basis  of  the application  which did not disclose any  reason,  presumably because he thought that what was required was only a  formal compliance  with the provisions of the section.   A  request was made before the High Court that an opportunity should be given  to  the  prosecution to enable them  to  produce  the necessary  evidence to support the order of the  Magistrate. But  the  learned Judge of the High Court  rightly  did  not accede to that belated request.  We, therefore, without  any hesitation, agree with the High Court that the provisions of s.   5A of the Act have not been strictly complied with in   this case. In  this  view no other question arises  for  consideration. But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that  permission  of the Magistrate was  obtained  ten  days after  the investigation was started was wrong, it would  be as  well that we considered the argument  briefly.   Section 4(1)   of   the  Code  of  Criminal  Procedure   defines   " investigation  as to include all the proceedings under  that Code for the collection of evidence conducted by the  police officer  or  other persons other than a  Magistrate  who  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

authorised by the Magistrate in this behalf.  Chapter XIV of the   Code  prescribes  the  procedure  for   investigation. Investigation  starts  after  the  police  officer  receives information  in  regard  to an offence.  Under  the  Code  " investigation consists generally of the following steps: (i) proceeding to the spot; (ii) ascertainment of the facts  and circumstances of the case; (iii) discovery and arrest of the suspected offender; (iv) 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 212 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 (v) formation of the  opinion as  to whether on the material collected there is a case  to place  the accused before a Magistrate for trial and  if  so taking  the necessary steps for the same by the filing of  a charge-sheet under s. 173."See H. N. Rishbud and Inder Singh v.  The  State of Delhi (1).  From the  narration  of  facts given supra, it would be seen that in the present case  Shri Bhalla gave information to the Sub-Inspector on January  11, 1955,  as regards the attempt by the Station Master as  well as  the  Assistant Station Master to take  bribe  from  him. Under s. 5 of the Act, attempt to obtain from any person for himself  or  for any other person any  gratification  is  in itself  an offence and therefore the  information  certainly related to an offence.  Thereafter, the Sub-Inspector, after assisting  Shri  Bhalla  to trap the accused,  came  on  the scene,  questioned  the  accused, searched  his  person  and recovered the marked notes and other articles from him ;  he searched the person of the informant and recovered the other notes  marked  but  not  given to  the  accused  ;  he  took possession of the twenty wooden boxes intended to be  booked and the forwarding note together with the record copy of the R/R;  he got prepared relevant memoranda for  the  aforesaid recoveries  and  got them duly attested  by  witnesses;  and thereafter  on  the  basis of his investigation  he  sent  a report  to the Special Police Establishment Office,  Indore. We do not know on the material placed before us what further things  he  did in the matter of investigation  between  the 14th  and  21st  when  be obtained  the  permission  of  the District  Magistrate.  In the circumstances, we  must  hold, agreeing with the High Court that the investigation in  this case was started by the Sub-Inspector on the 11th, i.e., ten days prior to his obtaining permission of the Magistrate. The appeal fails and is dismissed. Appeal dismissed. (1)[1955] 1 S.C.R. 1150. 213