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TMI Blog1954 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... Risbud above mentioned is the sole appellant. These appeals raise a common question of law and are dealt with together. The appellant Risbud was the Assistant Development Officer (Steel) in the office of the Directorate-General, Ministry of Industry and Supply, Government of India and the appellant Indar Singh was the Assistant Project Section Officer (Steel) in the office of the Directorate-General, Ministry of Industry and Supply, Government of India. There appear to be a number of prosecutions pending against them before the Special Judge, Delhi, appointed under the Criminal Law Amendment Act., 1952 (Act XLVI of 1952). We are concerned in these appeals with Cases Nos. 12,13 and 14 of 1953. Appeals Nos. 95, 96 and 97 arise respectively out of them. The cases against these appellants are that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock- holders of these articles. The charges, therefore, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this was so accepted or obtained as a motive or reward., such as is mentioned in section 161 of the Indian Penal Code. Sub-sections (1) and (2) of section 5 create a new offence of criminal misconduct in discharge of official duty by a public servant punishable with imprisonment for a term of seven years or fine or both. Sub-section (3) thereof enacts a new rule of evidence as against a person accused of the commission of offences under section 5(1) and (2). That rule, broadly stated,. is that when a person so accused, or any other person on his behalf, is in possession of pecuniary resources or property disproportionate to the known sources of his income and for which he cannot satisfactorily account, the Court shall presume him to be guilty of criminal misconduct unless he can displace that presumption by evidence. The offence of criminal misconduct which has been created by the Act, it will be seen, is in itself a cognizable offence, having regard to item 2 of the last portion of Schedule 11 of the Code of Criminal Procedure under the bead offences against the other laws . In the normal course, therefore, an investigation into the offence of criminal misconduct under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , directory or mandatory. (2) Is the trial following upon an investigation in contravention of this provision illegal. To determine the first question it is necessary to consider carefully both the language 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 be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed . (See Craies on Statute Law, page 242, Fifth Edition). The Code of Criminal Procedure provides not merely for judicial enquiry into or trial of alleged offences but also for prior investigation thereof. Section 5 of the Code shows that all offences shall be investigated, inquired into, 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 offences are divided into two categories 'cognizable' and 'n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in section 162. Under section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be -necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under section 54 of the Code. A police officer making an investigation is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. It is important to notice that where the investigation is conducted not by the officer in charge of the police station but by a subordinate officer (by vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under section 551. 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 be judged. When such a statutory provision enjoins that the investigation shall be made by a police officer of not less than a certain rank, unless specifically empowered by a Magistrate in that behalf, notwithstanding anything to the contrary in the Code of Criminal Procedure, it is clearly implicit therein that the investigation (in the absence of such permission) should be conducted by the officer of the appropriate 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 cannot take the assistance of deputies to the extent permitted by the Code to an officer in 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 in emphatic terms such a provision it is clear that it had a definite policy behind it. To appreciate that policy it is relevant to ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the scheme of the Act, have to be conducted by the appropriate investigating officer either directly or when permissible through deputies, but on his responsibility. It is to be borne in mind that the Act creates two new rules of evidence one under section 4 and the other under section 5(3), of an exceptional nature and contrary to the accepted canons of criminal jurisprudence. It may be of considerable importance to the accused that the evidence in this behalf is collected under the responsibility of the authorised and competent investigating officer or is at least such for which such officer is prepared to take responsibility. It is true that the result of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and the consequent greater responsibility 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. A number of decisions of the various High Courts have been cited before us be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised. But apart from the implication of the language of section 156(2), it is not permissible to read the emphatic negative language of sub-section (4) of section 5 of the Act or of the proviso to section 3 of the Act, as being merely in the nature of an amendment of or a proviso to sub-section (1) of section 156 of the Code of Criminal Procedure. Some of the learned Judges of the High Courts have called in aid sub-section (2) of section 561 of the Code of Criminal Procedure by way of analogy. It is difficult to see how this analogy helps unless the said sub-section is also to be assumed as directory and not mandatory which certainly is not obvious on the wording thereof We are, therefore, clear in our opinion that section 5(4) and proviso to 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 in violation thereof bears the stamp of illegality. The question then requires to be considered whether and to what extent the trial which follows such investigation is. vitiated. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clamation, order, judgment or other proceedings 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 failure of justice . If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor(A.I.R. 1944 P.C. 73. 149) and Lumbhardar Zutshi v. The King(A.I.R. 1950 P C. 26,). These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection 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 investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. 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 to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the viola- tion of section 5(4) of the Act has to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d others, and not as against any public servant. The case that was registered was accordingly in respect of offences punishable under 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- Vention of Corruption Act. The investigation proceeded, therefore, in the normal course. The evidence shows that the investigation in this case was started on 2-5-1949 by Inspector Harbans Singh and that on 11-7-1949 he handed over the investigation to Inspector Balbir Singh. Since then it was only Balbir Singh that made all the investigation and it appears from his evidence that he examined as many as 25 witnesses in the case. It appears further that in the course of this investigation it was found that, 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 Balbir Singh for sanction being accorded to him under section 5(4) of the Act and the same was given on 20-3-1951. The charge-sheet was filed by Balbir Singh on 15-11-1951. He admits that all the investi- gation by him excepting the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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