Guhinath v. The State of Delhi

firms . and that they actually obtained the conspuacy some of investigate Under section 5( 4) of the Prevention of Corruption Act, 1947, a police officer below the rank of a Deputy Superintendent of Police shall not offence punishable under sub-section (2) of section 5 without the order of a Magistrate of the First Class •. these cases were laid The first information reports m in April and June, 1949, but perm1ss10n of the Magis trate, for investigation as against the public servants concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given m March and April, 1951. The charge-sheets m all these cases were filed by such officers in August and November,. 1951, i.e. subsequent to the date on which perm1Ss1on the investiga But as above was given. in between the tion was entirely or mostly completed the· dates when the first information was officer of a perm1ss10n to investigate by an evidence It appears rank was accorded. investigation was i:onc that such ·taken in this behalf admittedly - - ig54 H. N. Rishbud anti lnder Singh v. The State of Delhi :Jagannadhadas :J. - - S.C.R. SUPREME COURT REPORTS 1153 or no stated, 161 or 165 of the the accused. Broadly (Act II of · 1947) hereinafter referred ducted not by any Deputy Superintendent of Police but by officers of lower rank and that after the per further investiga mission was accorded little that has been tion was made. The question, therefore, that the proceedings by way of trial mltl raised is, ated on such charge-sheets are illegal and require to be quashed. · To appreciate the argument it is necessary to notice the relevant sections of the Prevention of Corruption Act, 1947 to as that offences the Act. Section 3 of the Act provides Indian punishable under section to be cognizable offences. Penal Code shall be deemed Section 4 enacts a special rule of evidence against section 161 or 165 persons accused of offences under throwing the burden of of the Indian Penal Code, proof on section provides that if it is proved against an accused that he has accepted or obtained gratification other legal remuneration, it shall be presumed - against him that this was so accepted or obtained as a motive reward, such as is mentioned Indian Penal Code. Sub-sections (1) and (2) of section 5 create a new offence of "criminal misconduct in dis servant punish charge of official duty" by a public able with imprisonment for a term of seven years or a new fine or both. rule of evidence as against a person of the section 5(1) and (2). commission of offences under that when a person so That rule, broadly stated, accused, or any other person on his behalf, disprO' possession of pecuniary resources or property sources of his income and portionate to the known the Court for which he cannot satisfactorily account, shall presume him to be guilty of criminal m1scon~ duct unless he can displace that presumption by evi dence. The offence of criminal misconduct which has been created by the Act, it will be seen, is in itself a to item 2 of- the cognizable offence, having last portion of Schedule II of the Code of Criminal the :other Procedure under the head "offences against investi- laws". In the normal course, thereof enacts accused section 161 therefore, Sub~section regard (3) ·an 1~54 H. N. Rirhbud ·anJ lnder Singh · v. T h1 State of Delh. J~gannadhat/as].· 1154 SUPREME COURT REPORTS. [1955] this behalf would be required. But the gation into the offence of criminal misconduct under section 5(2) of the Act and an investigation into the offence under sections 161 and 165 of the Indian Penal cognizable by section 3 Code which have been made of the Act would have to be made by an officer in charge of a police station and no order of any Magis trate in prc> ( 4) of section viso to section 3 as well as that "a police officer 5 of the Act specifically provide below the rank of a Deputy Superintendent of Police shall not order of a Magistrate of the First Class or make any It may be men arrest therefor without tioned that this Act was amended by Act LIX of 1952. The above mentioned proviso to section 3 as well .as sub-section ( 4) of section 5 have been thereby omitted and substituted by section 5-A, the relevant portion of which may be taken to be as follows: any such offence without a warrant". sub-section investigate contained the presidency shall investigate "Notwithstanding anything Code of Criminal Procedure, no police officer below the rank of a Deputy Superintendent of Police (else towns of Calcutta, Madras and Bombay) offence sections 161, 165 or 165-A of the punishable under Indian Penal Code or under section 5(2) of this ~ct without the order of a Magistrate of the First Class". This amendment makes no difference. the investigation in these cases having section prior to the amendment, what the amendment. It may also 5( 4) as it stood before be mentioned that in 1952 the Cri minal Law Amendment Act, 1952 (Act XLVI of 1952) which provided for the appointment of Special Judges to 161, 165 and 165-A of the Indian Penal Code and under sub; section (2) of section 5 of the Act such offences were made Judges. Provision was triable only by such Special to such also· made offences · shall be fonvarded the Special Judge. That is how the present cases are all now before the Special Judge of Delhi appointed under this Act. that all pending cases In any try offences under there was enacted is relevant for trial relating sections On the arguments urged before us two points . ·arise . _() .. y - S.C.R. SUPREME COURT REPORTS 1155 Is the provision of the Preven for consideration. ( 1) the investi tion of Corruption Act, 1947, enacting that therein shall not be gation into the offences specified conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the speci fic order of a Magistrate, directory or mandatory. (2) Is the trial travention of this provision illegal. following upo11 an investigation in 1954 ff. N. Rishbud and lnder Singh v. "The' State. of Delhi 7agannadhadas J. - ) - It is judicial language the whole the duty of To determine the first question it is necessary to consider carefully both and scope of the section and the policy underlying it. As has been pointed out by Lord Campbell in Liverpool Borough Bank v. Turner(1 ), "there is no universal rule to aid in determining whether mandatory enactments shall considered directory only or obligatory with an implied nullification for disobedience. Court to try to get at the real intention of the Legis lature by carefully attending to scope of the statute to be construed". (See Craies on Statute Law, page 242, Fifth Edition). The Code of Criminal Procedure provides not merely enquiry into or trial of alleged offences but also for pnor m Section 5 of the Code shows that vestigation -thereof. into, all offences "shall tried and otherwise dealt with in accordance with the Code" (except in so far as any special enactment may provide otherwise). For the purposes of investigation 'cognizable' offences are divided into two the com and 'non-cognizable'. When information of received or such mission of a cognizable offence is polic.e commission the investigation officer has the authority of the same (unless it appears to him that there is no sufficient ground). But where the information relates to a non-cognizable offence, he shall not investigate it without the order of a competent Magistrate. Thus that according to the scheme of the it may be seen Code, investigation is a normal preliminary to an ac- . cused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance . other to enter on investigated, appropriate suspected, categories inquired (1) [1861] 30 L.J. Ch 379· 1954 H. N. Rishbud and lnder Singh v. The State of Delhi :Jagannadhadas ]. 1156 SUPREME COURT REPORTS [1955) investigation by starts on information thinks fit). Therefore, it is clear the Code comprises. relating wise than on a police report in which case he has the power under section 202 of the Code to order investi gation if he the Act when the Legislature made the offences m appropriate cognizable, police officer was contemplated as the normal preli- · mmary to the trial in respect of such offences under In order to ascertain the scope of and the the Act. requmng such investigation to be conduct reason for ed by an officer of high rank (except when otherwise consider permitted by a Magistrate), it is useful In what "investigation" under vestigation usually officer m the commission of an offence given to an charge of a police station and recorded under section If from information so received or 154 of the Code. station otherwise, the officer in charge of the police has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, the facts and has to proceed to the spot to investigate circumstances of the case measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertain ment of the facts and circumstances of the case. By definition, conducted by a Code for the collection of evidence investi police officer". For the above purposes, gating officer is given before himself the attendance of any person appearmg to be acquainted with the circumstances the case. He has also the authority to examme such person orally either by himself or by a duly deputy. The officer examining any person m the course of in vestigation may reduce his statement into writing and such writing is available, m the trial that may follow, for use in the manner provided in this behalf m sec tion 162. Under section 155 the officer in charge of a police station has the power of making a search m any place for the seizure of anything believed to be the investigation. The necessary search has to be conducted by such officer m person. A subordinate officer may be deputed by him for the it includes "all the proceedings under for the purpose reqmre the power to if necessary authorised .. ... y - r954 H. }{. Rishbw/ and lnder Singh v. "The State of Delhi Jagannadhadas ]I S.C.R. SUPREME COURT REPORTS 1157 is enjoined is enjoined that where to be recorded the power to arrest in writing if purpose only for reasons he is unable to conduct the search in person and there 1s no other competent officer available. The investi gating officer has also the person or persons suspected of the commission of the offence under section 54 of the Code. A police officer making an investigation to enter his proceedings m a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and also to send the accused is in custody he the Magistrate a copy of the entries in the diary to It is important to notice concerned. officer in charge investigation is conducted not by the subordinate officer of the police station but by a prov1S1ons of the (by virtue of one or other abling him to depute subordinate officer subordi any of the steps in the investigation) the investigation nate officer 1s to report the result of If, upon to the officer in charge of the police station. the completion of the investigation there is no officer in charge of the police station that he may de sufficient evidence or reasonable ground, if m custody, cide to release the suspected it appears to on his executing a bond. reasonable evidence or ·him that ground, to place the accused on trial, he to take 1s the necessary steps therefore under section 170 of the Code. vestigation he has to submit a report to the Magis trate under section 173 of the Code in the prescribed Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment case, (3) Dis of the facts and circumstances of the covery and arrest of the suspected offender, ( 4) Collec commission of tion of evidence relating to the the examination of offence which may consist of (a) the re various persons (including duction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opi- In either case, on the completion of the accused, If-, however, details. Thus, under furnishing vanous the accused) and there is sufficient it appears to - ) ·• j 1954 . " - - H. N. RishbuJ auJ Inkr Singh . v. The Stai• of D•lhi j~gannadhadas J~ 1158 SUPREME COURT REPORTS [1955} steps in investigation, before a Magistrate to conduct collected there is nion as to whether on the material a case to place the accused trial and if so taking the necessary steps for the same by the filing of a charge-sheet under section 173. The scheme of the Code also shows that while it is per missible for an officer in charge of a police station some of depute some subordinate officer responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police sta section 168 tion, it having been clearly that when a subordinate officer makes an investiga- . tion he should report the result to the officer in charge · of the police station. step in opinion as to whether or not the accused on trial charge of the police permitting delegation entitling . superior officers to under section 551. the final to place officer in station. There is no prov!s!on thereof but only a prov1s10n or participate investigation, viz. the formation of is to be that of the there is a case provided in It is also supervise implicit rank, unless than a certain It is in the light of this scheme of the Code that the scope of a provision like section 5 ( 4) of the Act has to judged. When such a statutory provision enjoins that the investigation shall be made by a police officer of not specifically empowered by a Magistrate in that behalf, notwith in the Code of standing anything to contrary therein that Criminal Procedure, it is clearly investigation (in the absence of such permission) should be conducted by the officer of rank. This is not to say that every one of the steps in the investigation has to be done by him in person or that he carinot take the assistance of deputies· by the Code to ari officer the extent permitted charge of a police station conducting an investigation or that he is bound to go through each of these steps in every case. When the Legislature has enacted emphatic terms such a provision it is clear that it had a definite policy behind it. To appreciate that policy it is relevant to observe that under the Code of Crimi nal Procedure most of . the offences relating to public the appropriate · - - 1954 H. N. Rishhud anti lnder Singh v. The State of Delhi Jagannadhada.s ]. S.C.R. SUPREME COURT REPORTS 1159 II of enough appears in difficult justice" and servants as such, are non-cognizable. A cursory peru sal of Schedule the Code of Criminal Proce dure discloses that almost all the offences which may be alleged to have been committed by a public ser vant, fall within two chapters, Chapter IX "Offences to, public servants", and Chapter XI by, or relating "Offences against public that each one of them is non-cognizable. (Vide entries in Schedule II under sections 161 to 169, 217 to 233, 225-A as also 128 and 129). The underlying policy in making these offences by public servants non-cognizable be that public servants who have to discharge circumstances functions--often should not be exposed to the harassment of investi them on information levelled, possibly, gation against a by persons affected by official called Magistrate is satisfied for, same. This is meant to ensure the diligent discharge of their servants, without fear or official functions by public thought the Legislature therefore, favour. When, fit to remove the protection from the public servants, in so far as it relates to the investigation of the of fences of corruption comprised in the Act, by making them cognizable, it may be presumed that it was con - safeguard sidered necessary to provide a substituted from undue harassment by requiring that the investi gation is to be conducted normally by a police officer therefore of a designated high rank. Having ( 4) of sec to the peremptory language of sub-section the Act as well as to the policy apparently tion 5 of underlying it, it is provision must be that an and on such satisfaction reasonably clear taken to be mandatory. investigation is authorises acts, unless regard indicate, if at all, only It has been suggested by the learned Solicitor General in his arguments that the consideration as the. policy would the necessity for the charge-sheets in such a case having to be filed by the authorised officer, after coming to his own conclu sion. as to whether or not there is a case to place the accused on trial before the Court, on a perusal of the that at best this material previously collected, might extend also to the requirement of arrest of the 18-89 S.C. India/59 ) ' ; ·~ J 1 954 · H. N. Rishbud and /ruler Singh v. The State of Delhi Jagannadhadas J. 1160 SUPREME COURT REPORTS [1955] its scope concerned public servant by an officer of the appro to think priate rank. There is, however, no reason that the policy comprehends within some and not all the steps involved in the process of the scheme of the investigation which, according to the appropriate Act, have to be conducted by investi permissible gating officer or when either directly It is to be through deputies, but on his responsibility. borne in mind that the Act creates two new rules of evidence one under section 4 and the other under sec tion 5 ( 3), of an exceptional nature the accepted canons of criminal It may that the be of considerable importance evidence in this behalf is collected under the respon investigating sibility of the authorised and competent officer or is at least true that the re prepared to take responsibility. sult of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and experience of a police officer has absolutely no relation to the nature and quality of evidence collected during investigation and to be subsequently given in Court. jurisprudence. to the accused such for which such officer the consequent greater responsibility contrary It is perused A number of decisions of the various High Courts have been cited before us bearing on the questions under consideration. We have also the re cent unreported Full Bench judgment of the Punjab High Court( 1 ). These disclose a conflict of opinion. It is sufficient to notice one argument based on sec tion 156(2) of the Code on which reliance has been placed in some of these decisions view that section 5(4) of the Act is directory and not mandatory. Section 156 of the Code of Criminal Pro cedure is in the following terms : in support of i - "156(1). Any officer in charge of a police-station may, without investigate the order of a Magistrate, any cognizable case which a Court having jurisdiction limits of such station into or try under the would have power to inquire provisions of Chapter XV the place of inquiry or trial. the local area within the relating (1) Criminal Appeals No,, 25-D and 434of1953 disposed of on 3rd May

#1954. S.C.R. SllPREME COURT REPORTS 1161 ·~ (2). No proceeding of a police-officer such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3). Any Magistrate empowered under ~ 190 may . order such an investigation '/ tioned ". section above-men 1 954 H. N. Rishbud and lnder Singh v. The State of Delhi Jagannadhadas ], - - Judges investigation by is attracted to section 5 ( 4) the phrase "under in sub-section "1 viso to section 3 of the Act are in substance section, i.e. with ( 3) thereof. Sub-section 'The argument advanced is that section 5 ( 4) and pro- effect in the nature of an amendment of or proviso to section 156(1) of the Code of Criminal Procedure. In this view, it was suggested that section 156(2) which cures the irregularity of an investigation by a person and pro- not empowered ). viso to section 3 of the 1947 Act and section 5-A of the 1952 Act. With respect, the learned this sec pear to have overlooked tion" which is to be found (2) of sec tion 156 of the Code of Criminal Procedure. What an officer that sub-section cures reference not empowered under that ( 1) to sub-sections ( 1) and "- of section 156 is a provision empowering an officer in ·charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting cases within a his power to the investigation of such It is the violation of this certain (2). Obvi provision that is cured under cure the ously sub-section (2) of section 156 prov1s1on violation of prohibiting of a lower rank than a Deputy Superintendent of Police unless implica specifically is not per tion of the language of section 156(2), it missible to language of read the emphatic negative sub-section ( 4) of section 5 of the Act or of the pro to section 3 of the Act, as being merely in the nature of an amendment of or a proviso to sub-sec tion ( 1) of section 156 of the Code of Criminal Proce- • <lure. Some of the learned Judges of the High Courts J have called ·in aid sub-section (2) of section 561 of the It Code of Criminal Procedure by way of analogy. cannot any other specific statutory by an authorised. But apart from investigation jurisdiction. sub-section officer ~ '> 1954 H. N. Rishbud and lnder Singh --- v. Tfje State of Delhi - Jagannadhadas J. .. 1162 SUPREME COURT REPORTS [1955] ,... is also sub-section the· to be assumed as directory is not obvious clear m section is difficult to see how this analogy helps unless and not mandatory which certainly on the wording thereof. We are, therefore, our opinion that section 5 ( 4) and proviso 3 of the Act and the corresponding section 5-A of Act t LIX of 1952 are mandatory and not directory and v , bears the stamp of illegality. the investigation conducted in violation thereof trial based It is only with is vitiated. Now, irregularity arises. A defect or illegality The question then requires to be considered whether in, trial follows cognizance the Code in respect '• follow cognizance · · and to what extent the trial which follows vestigation and cognizance is preceded by investigation. This undoubtedly the basic scheme of of cognizable cases. But it does not necessarily that an invalid investigation nullifies thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. ence to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere investigation, however serious, has no direct on the competence or the procedure relating to cogni zance or trial. No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which it cannot be maintained cognizance the foundation that a valid and legal police report is of the cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Condi- proceedings". The initiation of contrast with language of this that of the other sections of the group under the same heading, i.e. sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in in com pliance therewith. But section 190 does not. While no ~ '\ doubt, in one sense, clauses (a), (b) and ( c) of section taking of cogni- 190(.1) are conditions requisite for jurisdiction of the Court to take section is in marked cases excepting taken. But requisite bearing certain './. • in '( ' - - 1954 H, N. RiJhbud and lnder Singh v. The State ef Delhi Jagannadhadas J. S.C.R. SUPREME COURT REPORTS 1163 ~zance, it is not possible to say that cognizance on an invalid police report is prohibited and a nullity. Such an invalid report may either under clause (a) or (b) of section 190( 1), (whether it is the one or the other we need not pause to consider) · in the to 'the trial. To such a situation section 537 of the Code of Criminal <,and -! nature of error in a proceeding antecedent in any case cognizance still fall therefore so taken is onlv .. - 'i Procedure which is in the following terms is attracted: irregularity "Subject to jurisdiction shall be reversed the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent . or altered on appeal ot revision on account of any error, om1ss10n . or complaint, summons, warrant, ) . charge, proclamation, order, judgment or other pro ceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a fail ure of justice". in the "-,.· relating to investigation, the illegality in the investigation can If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision there can be no doubt that it cannot be set the result of the trial which follows aside unless shown to have brought about a miscarriage of justice. investi That an illegality committed in the course of gation does not affect the competence and the dictio11 of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor(1) and Lumbhar dar Zutshi v. The King( 2 ). These no doubt relate to in the course of investigation while we are concerned in the present cases with illegality with reference to the machinery for the col lection of the evidence. This distinction may have a • bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the • opinion that where the cognizance of the case has in to termi- .J. fact been the case has proceeded \· the illegality of arrest taken and (1) A.I.R. i944 P.C. 73• (2) A.LR .. 1950 P.C. 26. 1954 H. N. Rishbud and /ruler Singh v. The State of Delhi JaganMdhadas J. 1164 SUPREME COURT REPORTS [19551 the invalidity of nation, does not vitiate result, justice has been caused thereby. precedent unless miscarriage of investigation 1 ~­ '• ignored by illegality ordering investigation by the police. · the invalidity of It does not follow, however, that to be completely the investigation Court during trial. When the breach of such a manda- ~ tory provision is brought to the knowledge of the \ early stage, the Court, while Court at a sufficiently the neces- not declining cognizance, will have to take cured and the defect sary steps to get rectified, reinvestigation for. circumstances of an individual case may Such a course is not altogether outside the contempla tion of the scheme of the Code as appears from sec tion 202 under which a Magistrate taking cognizance 1 on a complaint can order the adoption of such a course Nor can it be said that is outside the scope of the inherent powers of Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate ing a warrant case. When the attention of the Court is called to such an illegality at a very early stage it the Y would not be fair to the accused not to obviate prejudice that may have been caused thereby, ap; him to to leave propriate orders, at that stage but the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 of the Code of Criminal Procedure of making out that such an error has fact occasioned a failure of justice. relevant this context to observe that even if the trial had pro to make '{ • ceeded to conclusion and the accused had justice as out that there was in fact a failure of to section 537 of result of such an error, explanation the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early ignore is a pertinent factor. To of the proceeding the breach in such a situation when brought notice of the Court would be virtually to make a dead letter of the peremptory provision which has enacted on grounds of public policy for the benefit of such an accused. .peremptory pro- that the been \ It is It - ... 1954 H. N. Rishbud and lnder Singh v. The State of Delhi Jagannadhadas J. ~ When a Magistrate is approached for granting • ~ permission he is expected to satisfy himself ~ are good "4.,' - • - • S.C.R. SUPREME COURT REPORTS 1165 sufficient to cause cannot be said reasons for authorising vision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that investigation by an officer of a lower rank without such permission prejudice. that there investigation. officer of a lower rank to conduct The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard the policy underlying it. therefore, In our opinion, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the viola tion and pass appropriate orders for such reinvestiga tion as may be called for, wholly or partly, and by reference such officer as it considers appropriate with It is to the req11irements of section 5-A of the Act. in the validity or otherwise of the objection as to the viola- ti on of section 5 ( 4) of the Act has to be decided and the course mined. to be adopted in these proceedings, light of the above considerations The Judge to the actual before whom learned Special In the cases out objection as to the violation of section 5 ( 4) of the Act was taken took evidence as course of the investigation in these cases. which Criminal Appeals Nos. 96 and 97 of 1954 arise, the first information report which in each case was filed on 29-6-1949 was in terms on the basis of a com plaint filed by the Director of Administration and Co-ordination, Directorate of Industry and Supply. This disclosed cluding that under section 5(2) of the Act. The cases sections includ were hence registered under various ing section 5(2), of the Act. The investigation was called for on the basis of such a first information report was to be by an officer contemplated under section 5( 4) of the Act. The charge-sheets in these two cases were filed on 11-8-1951 by a Sub-Inspector information constituting offences ' 1954 H. N. Rishbud and lnder Singh v. The State of Delk Jagannadhadas J. 1166 SUPREME COURT REPORTS [1955] 1954 1s the case relating concerned. he did not make to the Magistrate for permission to these cases on 26-3-1951. His evidence that he ap of Police, R. G. Gulabani and it appears investigate to Criminal Appeal that so far as No. 97 of investigation at all excepting t~ put up the charg~­ the prior stages of the investigation were sheet. All conducted by a number of other officers of the of Inspector of Police or Sub-Inspector of Police and none of them had taken the requisite In the case out of which Criminal the Magistrate. the evidence of R. G. Appeal No. 96 of investigation Gulabani after he obtained permission and partly investigated it thereafter but that the ma1or part of the investiga tion was done by a number of other officers who were all below the rank of Deputy Superintendent of Police without having obtained requisite sanction the mandatory provisions of section clear violation of In the view we have taken of the 5(4) of the Act. effect of such violation it becomes necessary for to be adopted Special Judge to reconsider in these two cases. 1954 arises that he took up the Magistrate are cases therefor. Both these the course perm1ss10n that was As regards the casr; out of which Criminal Appeal No. 95 of 1954 arises it is to be noticed the first information report which was filed on 30-4-1949 dis closed offences only against Messrs Patiala Oil Mills., Dev Nagar, Delhi, and others, and not as against any public servant. The case registered was respect of offences punishable under accordingly 111 section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, and not under any offence comprised within the Pre investigation pro vention of Corruption Act. The course. The evi the normal ceeded, therefore, 111 this case was investigation dence shows 111 Inspector Harbans Singh and started on 2-5-1949 by investigation that on 11-7-1949 he handed over to Inspector Balbir. Singh. Since it was only the investi?ation and it Balbir Singh appeals ftOm his evidence that he examnied as many that made all t. - - • 1954 H. N. Rishbud and Inder Singh v. The State of Delhi JagannadhadaJ J, ·s.CR. SUPREME COURT REPORTS 1167 '· 20-3-1951. filing it was It appears further charge-sheet was investigation. But since :as 25 witnesses in the case. in the course of this investigation the two appellants and another public servant were liable to be prosecuted under section 5(2) of the Act. Application was then made to the Magistrate by Bal bir Singh for sanction being accorded to him under the same was given on section 5 ( 4) of the Act and by Balbir The investi Singh on 15-11-1951. He admits that all gation by him excepting of charge-sheet the sanction of the Magis was prior to the obtaining investigation prior to the sanction was with reference Indian Penal registered under Code and section 6 of the Essential Supplies (Tem porary) Powers Act, 1946, that was perfectly valid. It is only when section 5(2) of the ·commission of an offence under Act by public servants, that any of taking question the sanction of the Magistrate investigation .arose. continuance of such investigation as portion of as against remained, the public concerned the same officer the permission of the Magistrate was after obtaining therefore, of the reasonable and legitimate. We are, ·opinion that there has been no in the in vestigation in this case as to call for interference. collected disclosed In such a situation section 420 of the material so such defect servants to a In the result, therefore, Criminal Appeal No. 95 of 1954 is dismissed. Criminal Appeals Nos. 96 and 97 of 1954 are allowed with the direction the Special Judge will take back the two cases out of which these :appeals arose on to his file appropriate orders after reconsideration in the light of this judg- Criminal Appeal No. 106 of 1954. This is an appeal by special mon order of the High Court of Punjab relating Cases Nos. 19 to 25 of 1953 before the Special Delhi. disposed of by our judgment 95 leave against a com Judge, It raises the same questions which have been in Criminal Appeals Nos. Since the appeal is, in form, one to 97 of 1954. '1 J. - 1954 H. N. Rishbud and lnder Singh v. 1'he State ·of Delhi Jagannadhadas J. 1954 Decemher 20 1168 SUPREME COURT REPORTS [1955] against the order of the High Court refusing to grant it is sufficient to stay of the proceedings then pen din o-, that it will dismiss this appeal with the objections be open before the Special Judge. the obsen~'ation to raise appellants to the SRI MONOHAR DAS MOHANTA fl. CHARU CHANDRA PAL AND OTHERS. [MEHAR CHAND MAHAJAN C.J., BHAGWATI, JAGANNADHADAS, VENKATARAMA AYYAR and B. P. SINHA JJ.] Lost Grant-Presumption of-lVhen such presumption does or does not arise-Legality of lost grant of Niskar from Mohunt-Plead ing and proof-Findings of fact. A presumption of a lost grant arises in favour of a person who does not claim adversely to the o\vner but who on the other hand proves ancient and continued possession in assertion of a derived from the owner without any challenge and such possession and assertion cannot be accounted for except by referring to a legal origin of the grant claimed. But the presumption of a lost grant is not an irrebuttable pre su1nption of la\V and the court cannot presume a grant where it is convinced of its non-existence by reason of a legal i1npediment, as where the presu1nption of a lost grant is claimed by a fluctuating body of persons. Si1nilarly a presun1ption of a lost grant cannot arise when there is no person capable of making such a gran.t or if the grant pleaded is illegal or beyond the powers of the granter. A presumption of a lost grant by way of 1\iskar cannot be in1- puted to the Mohunt of an . .\sthal inasni.uch as he is legally incom petent to make any Niskar grant. ... \- • '( .. - When a defendant who denies the title of pect of any land, fails in that plea, he cannot sumption of a lost grant from the very person whose denied. the plaintiff in res fall back on the pre title he has Findings of fact arrived at by courts should not be \'ague. Attorney-General v. Simpson ([1901] 2 Ch. D. 671), Raja Braja Sunder Deb v. Mani Behara and others ([1951] S.C.R. 431), Barker v. Richardson ([1821] 4 B. & Al<l. 579), The Rochdale Canal Com- \.