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TMI Blog2006 (10) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... Handa, a Radiologist, was running runs a diagnostic center. There was an allegation that he was conducting pre-natal tests to determine the sex of the foetus and which could ultimately result in female foeticide. It is alleged that the present petitioner had demanded a certain sum of money from the said Mr Handa to put his case right. It is alleged that the sum of money was demanded on behalf of some other persons including the members of the Advisory Committee. The amount of money allegedly demanded was about ₹ 80,000/- which was to be paid in two lots of ₹ 40,000/- each. At that point of time, the said Mr Handa is supposed to have registered a complaint with regard to the alleged demand of bribe. The complaint was registered on 16.12.2004 at 2 p.m. in the form of an FIR No. RC DA1 204A-0051/7625. At the end of the said FIR it is indicated as under: The above facts prima facie disclose commission of cognizable offence punishable Under Section 7 of PC Act, 1988 against Sh. Dr. R.R. Kishore Chief Distt Medical Officer (South) Dispensary Building, Begumpur Malviya Nagar, New Delhi. A regular case is therefore registered and entrusted to Sh. Amit Vikram Bhardwaj, Insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itiated as there was no prior approval. 5. Mr Tiwari, who appeared for the CBI, however, submitted that no approval was necessary because the case involved the arrest of the present petitioner on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration covered in Clause (c) of the explanation to Section 7 of the Prevention of Corruption Act, 1988. He submitted that the provisions of Section 6A(2) were non-obstante the provisions contained in Sub-section (1) and therefore, no such approval was at all necessary. 6. The petitioner, in rejoinder referred to two decisions of the Supreme Court namely: (1) Shailenderanath Bose v. The State of Bihar AIR 1968 SC 1292 (paragraph 5) and (2) The State of Madhya Pradesh v. Mubarak Ali AIR 1959 SC 709 (paragraph 7). The petitioner, who appeared in person, submitted that when the FIR was registered at 2 p.m. no further steps could have been taken without the approval required under Section 6A(1). He submitted that laying of a trap was part of the investigation. According to him, this is what has been laid down by the Supreme Court in Shailenderanath Bose (supra) following th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government Companies, Societies and local authorities owned or controlled by that Government. (2). Notwithstanding anything contained in Sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in Clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988). 8. The Single Directive was quashed by the Supreme Court in the case of Vineet Narain v. Union of India (1988) 1 SCC 226 essentially on the ground that it was an executive order and did not have any statutory force. The differentiation created between officers was held to be bad. The Supreme Court held: 43. There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nceded that such cases, i.e., of bribery, including trap cases, are outside the scope of the Single Directive. After some debate at the Bar, no serious attempt was made by the learned Attorney General to support inclusion within the Single Directive of cases in which the offender is alleged to be in possession of disproportionate assets. It is clear that the accusation of possession of disproportionate assets by a person is also based on direct evidence and no factor pertaining to the expertise of decision-making is involved therein. We have, therefore, no doubt that the Single Directive cannot include within its ambit cases of possession of disproportionate assets by the offender. The question now is only with regard to cases other than those of bribery, including trap cases, and of possession of disproportionate assets being covered by the Single Directive. 46. There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision-maker. Those are cases in which the inference drawn is that the decision must have been made for a corru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations. 10. Anyhow, the Supreme Court in Vineet Narain (supra) quashed the Single Directive essentially on the ground that the Single Directive was a mere executive order which created a classification when the law did not permit such a classification with regard to prior approval for investigation in respect of officers of a particular rank and above. 11. It is subsequent thereto that Section 6A has been inserted in the DSPE Act with effect from 11.9.2003. From the date of decision in Vineet Narain's case (supra) till the introduction of Section 6A in the DPSE Act w.e.f. 11.9.2003, there was no requirement of seeking previous approval for investigation except for the period 25.8.1998 to 27.10.1998 when ordinances were inforce. 12. The validity of Section 6A of the DPSE Act has been challenged in Subramanian Swamy (supra) and the matter has now been referred to a larger bench for consideration in the following manner: 6. In short, the moot question is whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is a mandatory provision and is not merely directory. 15. Let me now consider these abstract principles in the context of the factual matrix of the present case. Mr Handa, the complainant sent in his complaint dated 16.12.2004 to the CBI. In this complaint he alleged that he met the petitioner on 14.12.2004 and the petitioner informed him that four members of the Appropriate Authority have become corrupt and that they were demanding ₹ 20,000/- each and therefore the petitioner demanded a sum of ₹ 80,000/- from the complainant in 2-3 days. The complainant also alleged that the petitioner acceded to the complainant's request for paying the same in two Installments of ₹ 40,000/- each. The complainant then wrote in the complaint that as he did not want to pay the bribe, legal action be taken against the petitioner. 16. On receipt of the said complaint, at 2.00 p.m. on 16.12.2004 itself, the FIR was registered under RC-DAI-2004-A/0051 Under Section 7 of Prevention of Corruption Act, 1988. No preliminary enquiry was conducted. No prior approval was taken from the Central Government even though the petitioner was an officer of the rank of Joint Secretary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently arrested. It is this arrest which is being put forth by the Respondent as an arrest on the spot on the charge of accepting bribe. But this happened later in the evening on 16.12.2004 when the regular case had already been registered and the investigation was already under-way. The offence of demanding bribe had already been committed. There was ample time to seek an approval. There was no necessity of laying the trap on that very evening. Had it been the case that the complainant had already fixed the rendezvous time that evening even prior to the lodging of the complaint, then, perhaps, a case for urgency could be made out. But, this was not so. The time for handing over of the bribe amount was fixed on the instructions of the CBI after the case was registered and pre-trap arrangements were made. The events leading to the arrest of the petitioner were pre-planned and well thought of and, to my mind, cannot be construed as an arrest on the spot as contemplated under Section 6A(2). As rightly argued by the petitioner, a distinguishing feature of an arrest on the spot while accepting bribe would be that the arrest of the person taking a bribe would precede the register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cotton Cloth and Yarn (Control) Order (1943) provided: No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government (or of such officer of the Provincial Government not below the rank of District Magistrate as the Provincial Government may by general or special order in writing authorise in this behalf). After examining the facts of the case and the manner in which the sanction had been granted, the Privy Council was of the view that the sanction given in the case before it was not a sanction as was required by the said Section 23 of the said Order and, therefore, it was not a valid sanction. The Privy Council held that a defect in jurisdiction of the court can never be cured under Section 537 of the Criminal Procedure Code, 1898. Section 537 of the Criminal Procedure Code, 1898 reads as under: 537. Subject to the provisions here in before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- (a) of any error, omission or irregularity in the complaint, summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, in that case, it must be noted, the Privy Council did not consider the question whether there was any fault in procedure inasmuch as the question of faulty procedure was raised before the Privy Council for the first time without the same being argued before the High Court. The Privy Council was also of the view that the new ground that was sought to be raised, did not involve any question of jurisdiction. 22. I now come to the celebrated case of H.N. Rishbud v. State of Delhi . The Supreme Court was concerned with the provisions of Sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947 which provided that a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under Section 5(2) without the order of a Magistrate of the First Class. In the case before the Supreme Court, it appeared from the evidence that the investigation was conducted not by any Deputy Superintendent of Police but by officers of lower rank. However, subsequently permission of the Magistrate for investigation was obtained but after such permission was accorded, little or no further investigation was made. The question raised befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to the provisions hereinbefore contained, no finding, sentence or order passed by a Court or competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, 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 and - Lumbhardar Zuthsi v. The King AIR 1950 PC 26. These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present case wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision 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 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 will 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator to the breach of a mandatory provision and permit the trial to go on. 23. The next decision of importance is that of State of Madhya Pradesh v. Mubarak Ali . The facts in this case would be pertinent in the context of the present case also. It was indicated that Daisy Sewing Machine Company Ltd. had opened its stall in the Gwalior Mela and the manager of the said company had to book empty wooden cases of machines and machine parts from Golakmandir railway station, which was near the Gwalior Mela, to New Delhi. When the said manager went to the station to enquire for booking the said cases, the Station Master demanded ten annas for each case as illegal gratification, but he did not agree to it. Subsequently, the Assistant Station Master (Mubarak Ali) agreed to accept eight annas for each case and asked him to bring the wooden cases between 2 to 4 pm on the same day, i.e, January 11, 1955. On this allegation, he requested the police to take action to stop the corruption. The police officer went along with the informant to his stall at Gwalior Mela and found that there were twenty wooden cases ready for booking. The said manager gave the police officer a typed complaint signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and cure the illegalities he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file. The Supreme Court, in appeal, confirmed the order passed by the High Court and dismissed the appeal. While doing so, the Supreme Court after noticing its earlier decisions in the case of H.N. Rishbud (supra) and Biswabhusan Naik v. State of Orissa observed as under: 5. 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 givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court was once again considering the provisions of Section 5-A of the Prevention of Corruption Act, 1947. The Supreme Court was in this case concerned with concluded trials. It was urged before the Supreme Court that the investigation was irregular and not in accordance with Section 5-A of the Prevention of Corruption Act, 1947 inasmuch as originally the entire investigation was done by a Sub-Inspector of Police and thereafter the case under Section 409/406 of the Indian Penal Code was instituted against the accused, his brother and the executive officer. That case was later withdrawn and it was thereafter that sanction was granted for the prosecution of the accused Munnalal and his brother under Section 5(2) of the Prevention of Corruption Act, 1947 and investigation was made as required under 5-A of that Act. However, the evidence on record revealed that this subsequent investigation merely consisted of the duly authorised investigating officer going through the papers of the earlier investigation and the filing of four prosecutions on the basis of the earlier investigation. The Supreme Court observed that it did not appear from the facts that, though the letter of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Magistrate had the force of law and was mandatory the trial would not be rendered invalid unless it was shown that miscarriage of justice had been caused on account of the illegal investigation. Learned Counsel was not able to show how the accused were in any way prejudiced by reason of the fact that the investigation was completed by the Inspector of Police. We have therefore no hesitation in rejecting the contention raised on behalf of the respondent that the trial was bad in law because investigation was completed by an Inspector of Police. See Munnalal's Case, (Munnalal v. State of U.P. Criminal Appeals Nos. 102 to 104 of 1961, D/- 17-4-1963 26. In Union of India v. Prakash P. Hinduja , the Supreme Court incidentally considered the question as to what would be the result of any error or illegality in investigation and trail of the accused. With reference to the decision of the Supreme Court in H.N. Rishbud (supra), Prabhu v. Emperor (supra) and Lumbhardar Zuthsi v. The King (supra), the Court held that if cognizance is in fact taken, on a police report initiated by a breach of a mandatory provision relating to investigation, there can be no doubt that the result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gality of investigation is brought to the notice of the court and yet the Trial Court continues with the trial then, such proceedings would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. In this case, in view of the discussion above, it is clear that the provisions of Section 6A(1) of the Prevention of Corruption Act, 1988 are mandatory and not merely directory. The investigation carried out in contravention of such provisions is, therefore, clearly illegal, in violation of a statutory requirement. The dismissal of the discharge application moved on behalf of the petitioner means that the trial would continue. This cannot be permitted in view of the discussion above. Because, then the court would be turning a blind eye and a deaf ear to the illegality in investigation which has been brought to its notice at the earliest stage. However, it also does not mean that the petitioner is entitled to a discharge and the closure of the case against him. As pointed out in Rishbud's case and Mubarak Ali's case, reinvestigation is to be ordered in the context of the provisions of Section 6A of the said Act. While the file is to be kept pending be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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