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TMI Blog2015 (3) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... urt erred in overlooking the gist of order of Special Judge permitting the Sub-Inspector to investigate. Further, having regard to the fact that no case of prejudice or miscarriage of justice by reason of investigation by the Sub-Inspector of Police is made out, the order of the High Court cannot be sustained in law. - Decided in favour of appellant. - CRIMINAL APPEAL NOS.2512-2513 OF 2014 - - - Dated:- 1-12-2014 - M.Y. EQBAL AND SHIVA KIRTI SINGH, JJ. For The Appellant : B.V. Balaram Das, Adv. For The Respondent : Ram Shankar, Y. Lokesh and R.V. Kameshwaran, Advs. JUDGMENT M.Y. Eqbal, J. Leave granted. 2. The present appeals are directed against the common judgment and order dated 5.7.2013 passed by the Madurai Bench of Madras High Court in Crl.O.P. Nos.1943 6464 of 2010, whereby the High Court set aside the order passed by the Trial court permitting a Sub-Inspector of Police to investigate the matter under the Prevention of Corruption Act. 3. The facts giving rise to the present appeals are that on the basis of a complaint from one S. Muniraj a case being RC 50(A)/2009 was registered by Central Bureau of Investigation, ACB, Chennai against resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is not in accordance with law. 7. Hence, these appeals by special leave by the Union of India as well as the State. 8. We have heard learned counsel for the parties. Mr. K. Radhakrishnan, learned senior counsel appearing for the appellant submitted that the High Court has failed to appreciate that Special Judge granted permission to aforesaid Sub-Inspector of Police, CBI, Chennai to investigate the case and after completion of the investigation, charge sheet was filed and cognizance was taken. Learned counsel contended that the High Court interpreted Section 17 of the Act erroneously. The provisions of Section 17(a) of the Act prescribe that without the permission of the Court, the investigation of the case below the rank of Inspector of Police shall not be done. But in this case, the investigation was done with the order of the Court. Learned counsel submitted that by virtue of Section 5(3) of the Delhi Special Police Establishment Act any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector is made officer-in-charge of police station and, therefore, they have the power to investigate into the offences mentioned in the notification under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se without permission of the Court. Further, Section 17 does not confer any power to the Court to grant permission to Sub-Inspector of Police to investigate the case. Hence, order passed by the Magistrate permitting the Sub-Inspector of Police to investigate the case is without jurisdiction and against the mandatory provisions of Section 17 of the Act as well as Article 21 of the Constitution of India. Before answering the question we would like to refer to Section 17 of the Prevention of Corruption Act, 1988 which reads as under:- 17. Persons authorised to investigate. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank, - (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in an appeal against the order of conviction was that the sanction to investigate the offence given by the Magistrate was not proper in as much as he had not recorded any reason as to why he had given permission to the Inspector of Police to investigate the offence of criminal misconduct of obtaining illegal gratification. Considering Section 5(A) of the Act Their Lordships observed:- 15. Although laying the trap was part of the investigation and it had been done by a Police Officer below the rank of a Deputy Superintendent of Police, cannot on that ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It has been emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation. The observations in State of M.P. v. Mubarak Ali, 1959 Supp 2 SCR 201 at pp 210 and 211, to the effect that when the Magistrate without applying his mind only mechanically issues the order giving permission the investigation is tainted cannot help the appellant before us. 15. In the case of Muni Lal v. Delhi Administration AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate orders as may be called for to rectify the illegality and cure the defects in the investigation. 17. In the case of A.C. Sharma v. Delhi Administration [1973] 1 SCC 726, provisions of Section 5A were again considered by this Court and held as under: 15. As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. InH.N. Rishabud and Inder Singh v. State of Delhi (supra)it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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