S.R. Tewllri v. BHAGW ANT KISH ORE JOSHI

the basi• of the information collected, he submitted a report. M made the first stage :of investigation without obtaining the order of the Magistrate, !st Class.l Subsequently, M obtained permission of a Magistrate, !st Class, to investigate into tho case as required by s. 5A of the Prevention of Corruption Act. Thereafter. he made further investigation and submitted a charge sheet. The respondent was tried and convicted by the Special Judge under s. 5 (2) of Prevention of Corruption Act. On appeal the High Court set aside the conviction:mair,]y on the ground that the first stage of the investigation was contrary to s. 5A of the Prevention of Corruption Act and the accused must be held to have been seriously prejudiced by the said contravention of the Act. Held (per Subba Rao and Dayal, JJ.), that the first stage of investigation made by M, before obtaining the requisite permission of the Magistrate, !st Class, under s.

5A of the Act, was an "investigation" within the meaning of s. 4 ( l) of the code of Criminal Procedure. M received through the report a detailed information of the offence alle1:ed to have been committed by the accused with necessary particulars; he proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records, and submitted a report. These acts constituted an investigation within the meaning of the definition of "investigation" under s. 4 (I) of the Code of Criminal Procedure and as such there was a contra vention of s. 5A of the Prevention of Corruption Act. Subsequently M rectified the earlier defect by obtaining !st Class, to investigate into the permission of the Magistrate, the offence alleged to have been committed by the accused and in effect . there was practically de nova investigation in strict compliance with the provision of Code of Criminal Procedure.

In fact, the accused has not been prejudiced by the illegality committed by the Police in the first stage of investigation. The conviction of an accused cannot be set aside on the ground , of some irregularity or illegality in the matter of investigation, there must be sufficient nexus either established or probabilized, between the conviction and the irregularity in the investigation. H. N. Rishbud and lnder Singh v. State of Delhi, [1955] I S. C.R. 1150, relied on. In re Nanumuri Anandayya, A. I. R. 1915 Mad. 312, In re Rangarajulu, A. I. R. 1958 Mad, 368 and The State of Kerala v. M . .T. Samuel, I. L. R. 1960 Kerala 783, referred tQ. 190!1 Stale of UttM Praiesh •• Bh•:IVcnt Kish&.r• · .-.. J1shi 3 S.C.R. SUPREME COURT REPORTS 73 Per Mudholkar J .-In fact there was no defect or irregu· larity in conducting the first stage of investigation. Investi· gation, in substance, means collection of evidence relating to the commission of offence for establishing the accu, ation against It is open to a Police Officer to hold preliminary the offender. the correctness of the information. enquiry for ascertaining Such preliminary enquiry does not amount to collection of evidence and so cannot be regarded as investigation. ' H. N. Rishbwl and ln'der Singh v.

State of Delhi, [1955] I S. C.R. 1150, relied on. CRIMINAL APPELLATE J URISDIC'rION : Criminal Appeal No. 171of1961. Appeal by special leave from the Judgment and order dated January 30, 1960, of the Allahabad High Court (Lucknow Bench) at Lucknow in Crimi nal Appeal No. 643 of 1960. , R. L. Mehta, G. 0. Mathur and O. P. Lal, for the appellant. • '1'. R. Bhasin, for the respondent.

1963. April 17. The Judgment of Subba Rao and Dayal JJ., was delivered by Subba Rao J. Mudholkar J., delivered a separate Judgment. suu. /! .. /. setting aside SuBBA RAo J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad, Lucknow, Bench Lucknow Special Judge accused-respondent sentenced him to on~ year's imprisonment under s. 5 (2) of the Prevention of Corruption Act (No. II of 1947), hereinafter called the Act. (West), Lucknow, who convicted that of rigorous The case of the prosecution may be briefly stated : The respondent was a booking clerk at Saharanpur in the year 1955-56. Between October 22, 1955, and May 26, 1956, he committed criminal 1969 Sta.ti l,j Uttar Pradesh v. a·hatW4nt Kishtr1 Joshi Su~b• Rao J. ;< 74 SUPREME COURT REPORTS [1964] VOL. the Act. Before breach of trust in respect of Rs. 49/1/0. On the said allegations the accused was sent up for trial before the Special Judge for offences under s.

5 (1) (c), read with s. 5 (2), of Special Judge the prosecution filed a number of ·examined documents numbering up to 124 and 20 witnesses. The accused admitted before him that he had realized the amounts as alleged by the prosecution, but pleaded that he had no dishonest intention, and that the deficit found was due to inadvertance and oversight. The Special Judge consi dered the entire evidence and found that the evidence adduced by the prosecution established that accused misappropriated the amounts received by him as a public servant. It was contended before him that the investigation of the case has been made by Sub· Inspector Mathur, who under the law wa~ not entitled to investigate the case, as he was below the rank of Deputy Superintendent and hence the trial was vitiated. The learned Special Judge held that the said Sub-Inspector did not conduct any investiga the requisite permission tion before he ,..obtained from the appropriate authority and that even if he did it had not been established that the accused was prejudiced by such an enquiry.

In the result he convicted the accused and sentenced him as aforesaid. On appeal by the accused, the High Court set aside the conviction mainly on the ground .that the Sub Inspector Mathur made "Investigation" before he obtained the permission of the Additional District Magistrate (Judicial), Lucknow, to investigate case and as the said investigation was in violation of the provisions of the Act, the accused must be held to have been seriously prejudiced by the said con· travention of the Act. The High Court also casually observed that it was inclined to take the view that the prosecution had not eliminated the reasonable possibility of the defence of the accused being correct. For the said reasons the High Court set aside the conviction of the accused and acquittec\ -..,..---..... , . ' • ._ . 3 S.C.R. SUPREME COURT REPORTS 75 him. The State has preferred the present appeal against the said judgment of the High Court.

The only question that was argued before us is whether the .High Court was right in acquitting the accused on the ground that the investigation made by Sub·Inspector Mathur before he obtained the permission of the Magistrate vitiated the entire trial. !JU Stal1.of Uttar Pr•J1sh v. Blr•1want KUh1r1 /1shi Suib• Rao/, Learned counsel for the State contended that the said Sub·Inspector only made a preliminary enquiry to ascertain the truth of the mformation received by him and, thereafter, after obtaining the requisite permission of the Magistrate he made an investigation of the offence and, therefore, there was neither illegality nor irregularity in the matter of investigation. In any view, the argument proceeded, the High Court went wrong in setting aside the conviction based on evidence without considering and coming to a conclusion whether the said irreg ularity, if any, had prejudiced the accused.

On the other hand, learned counsel for the accused-respondent, pressed on us to hold that the investigation w ,g made in consistent disregard of the safeguards provided by the Legislature in such a case and therefore the Court should, without any further proof, presume prejudice to the accused. Before we consider the merits of the rival contentions it would be necessary to notice briefly the alleged irregularity committed by the prosecu tion in the matter of investigation. On April 26, 1956, A.N. Khanna, the Rail way Sectional Officer, Special Police Establishment, Lucknow, sent a report to the Superintendent of Police, Special Police Establishment, stating that he had received iqformation through a source that 1963 Slat1 Qf Uttar Ptadesh •• Bha:w•nt Kish•re Joshi Subia Raa J, , SUPREME COURT REPORTS [1964] VOL. 76 the accused was in the habit of misappropriating Government money, giving 7 instances of the acts of misappropriation• committed by him and infor· ming him that if a proper investigation was made many more cases of misappropriation would come to light.

Mathur, the Sub· Inspector of Police, Special Police Establishment, as P.W. 15 says that on the receipt of the said report, the said Superintendent of Police directed him to make an enquiry ; and he further says that. on the basis of the information he checked the railway records, found that the informa tion was correct and submitted a report accordingly. After he submitted the report, on October 8, 1956, the said Sub-Inspector applied to the Additional District Magistrate (Judicial), Luchnow, for per· mission to investigate the case. On October 19, 1956, the said Magistrate permitted him to investi · gate. Thereafter, he made further investigation, seized documents, took statements from witnesses and finally submitted a charge·sheet against the accused. The first question is whether the enquiry made by him before he obtained the permission of the Magistrate was "investigation" within the meaning of the provisions of the Code of Criminal Procedure.

Section 154 of the Code prescribes the mode of record· ing the information received orally or in writing by an officer incharge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 which prescribes the procedure in the matter of such an investigation can be initiated either on It is clear from the said information or otherwise. incharge of a police provisions that an officer station can start investigation either on information or otherwise. Under s. 4 (1) of the Code of Criminal • . ,. 3 S.C.R. SUPREME COURT REPORTS 77 Procedure, "Investigation" includes all the proceed ings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

" This Court in H.N. Ri8hbud and Inder Singh v. The State of Delhi ('), described the procedure prescribed for investigation under Ch. XIV of the Code of Criminal Procedure thus: 1963 St1t eof lltt•r PratfeJh •• Blr•twa.nt Xisllor1 J1shi SuUa R•o J. "Thus, under the Code illvestigation consists generally of the following steps : (1) Proceed ing to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, ( 4) Collec tion of evidence relating to the commission of the offence which may consist of (a) examina tion of various persons (including the accused) and the reduction of writing, if the officer thinks fit, {b) the search @f places of seizure of things considered to be necessary produced at the trial, and (5) 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 filing of a charge-sheet under section 173." investigation and their statements - • Did Mathur, the Sub-Inspector, make such an investigation before he obtair•ed the permission of the Magistrate under s.

5A of the Act ? Ex. P-113 shows that Khanna, the Railway Sectional Officer, that the information received through a source accused was the habit of misappropriating Government money by not accounting for the sale proceeds of blank paper and other tickets ; it also indicates that the i1,formation received by the said officer was not vague, but contained precise parti- culars of the acts of misappropriation committed by (I) {1955) IS, C. R, 1157-58. ' :.......i' 1969 Stt1l6 tJj.Uttsr .Prt1tl1sh . v. Rh•zwant Kislu1r6 Jo1hi · Suiba R«0 J. 78 SUPREME COURT REPORTS [1964] vot. the accused. On April 26, 1956 he sent a report of the information received to the SuperiFJtendent of Police, Special Police Establishment, Lucknow, indicating to him that if a proper investigation was made many more cases of misappropriation would come to light. On the receipt of the said report, the matter was entrusted to the said Mathur, a Sub· Inspector of Police of the Special Police Establishment, Lucknow.

As P. W. 20 he describes the steps he had taken pursuant to the information given in the said report. He verified the allegations contained in the information given by Khanna; saw the relevant rail way records after taking the permission of the Station to be Master and found· the information given correct. On the basis of the information collected, he submitted a report. But the full details of the enquiry were not mentioned therein. He also did not prepare any case diary in respect of the said enquiry. The said report is not in the record. We may assume that the Sub-Inspector did nothing more than what he states he did in his evidence. Even so t e said police officer received a detailed informa tion of the offence alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and sub mitted a report of the said acts.

The said acls consti tuted an investigation within the meaning of the definition of "investigation" under s. 4 (1) of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned counsel for the State in support of his contention that there was no L1vestigation in the present case are rather · wide off the mark, In In re Nanumuri Anandayya (' ), a division Bench of the Madras High Court held that an informal enquiry on the b isis of a vague telegram was not an investigation within the meaning of s. 157 of the Code of Criminal Procedure. In ), Ramaswami J., of the Madras In re Rangarajulu (2 (I) A.

R, 1915 Mad. 512. l2) A.I.R. 1958 Macl. 368, 371-372. •, 1963 Stat• of Uuor Pratf1Jh v. Blia, want. Kish~r« Joslri · Subta Rao J. a s.c.R. StJPREM~ COtJR T REPORTS 79 High Court described the following three stages a policeman has to pass in a conspiracy· case : " ...... hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage lookout; and finally gathers of qui vive or sufficient to bite information enabling him upon something definite and that is the stage when first information is recorded and when investigation starts. " fhis graphic description of the stages is only a re statement of the principle that a vague information or an irresponsible rumour would not in itself consti tute information within the meaning of s. 154 of the Code or the basis for an investigation under s.

196.3 State of Utt« Produh •• Bha1w11nt Kishare Jos .. i Mudlwlkor /. 3 S.C.R. SUPREME COURT REPORTS 87 to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. No doubt, s. 5A of Prevention of Corruption Act was enacted preventing harassment to a Government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not per mitted to be made by an officer below the rank of a Deputy Superintendent of Police. Where however, a Police Officer makes some preliminary enquiries, does not arrest or even question an accused or ques tion any witnesses but merely makes a few discreet enquiries or looks at some documents without making any notes, it is difficult to visualise how any possible result harassment or even embarrassment would therefrom· to the suspect or the accused person. If no harassment to the accused results from the action of a Police Officer how can it be said to defeat the purpose underlying s. 5A ? Looking at the matter this way, I hold that what Mathur did was some thing very much short of investigation and, there fore, the provisions of s. 5A were not violated. Since no irregularity was committed by him there is no occasion to invoke the aid of the curative provisions of the Code. Appeal allowed.