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Criminal Appeal No. 165 of 1954,1 decided on 20th July, 1955, from the order of Ata Ullah, Sessions Judge, Rawalpindi, dated the 9th December, 1953.
S. 3 proviso (as it stood before its omission by S. 5 (a) (ti) of Criminal Law Amendment Act (XXXVII of 1953)) (now S. 5‑A)‑Case investigated by Sub‑Inspector of Police without authorisation from a First Class Magistrate‑Trial, held, not vitiated‑Criminal Procedure Code (V of 1898), Ss. 156 (2), 190 (1) (a) (b) and 537.
The accused was convicted and sentenced under section 161 P. P. C. by the trial Magistrate. On appeal to the Court of Session, he was acquitted on the ground that the trial was vitiated because the police investigation was in contravention of the proviso to section 3 of the Prevention of Corruption Act (II of 1947) as it stood before the amending Act (XXXVII of 1953).
The investigation, partially at any rate, i.e., up to preparation of recovery memos immediately after the raid had been done by a Sub‑Inspector of police without authorisation from a First Class Magistrate.
Held, that even if the investigation had not been in conformity with the legal provisions of the proviso to section 3 of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated, and this in spite of the fact, that the prosecution could not invoke section 156 (2) Criminal P. C. in respect of an unauthorised investigation.
Shivbhat v. Emperor A I R 1928 Bom. 162 (D B) ; Rustom Ardeshir Banaji v. Emperor A I R 1948 Bom. 163 (D B) ; Promod Chandra Shekhar v. Rex A I R 1951 All. 546 (D B) ; Keshava Hand Srivastava v. The State A I R 1952 All. 122 (S B) and Parbhu v. Emperor A I R 1944 P C 73 ref.
Sudhir Kumar v. The State A I R 1953 Cal. 226 (D B); Feroz‑ud‑Din v. The Crown P L D 1954 Bal. 1 and The State v. Madan Lal A I R 1954 Pb. 42 (S B) distinguished.
The Crown v. Ali Gohar P L D 1954 Sind 208 and 278 ref.
The trial Court has to decide the case on the basis of evidence led before it, and the mere fact that the agency which collected such evidence was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trying Court.
There are no words in the proviso or anywhere in the Prevention of Corruption Act 1947, which would lead to such a conclusion.
Presuming that the officer making the report was not duly authorised by the order of a Magistrate, his report could still be held to fall within the purview of section 190 (1) (b) of the Code or, in the alternative, can be accepted as a complaint within subsection (1) (a) of that section.
Even a police report in a non‑cognizable offence, which the police has not been duly ordered by a Magistrate to investigate, would be included in the word "report" in section 190 (1) (b).
There is nothing in law to prevent a police officer making a complaint in a case of which the facts have come to his knowledge.
Emperor v. phalli Muhammad A I R 1928 Lah. 66 (D B) ; Public Prosecutor v. Ratnavelu Chetty A I R 1926 Mad. 865 (F B) ; King Emperor v. Sada I L R 26 Bom 150 (F B) and Abdullah Khan v. Emperor A I R 1933 Sind 188 (D B) ref.
The jurisdiction of the Court is not ousted merely because the report was submitted by a police officer who was not authorised to investigate.
Held, that infringement of the proviso to section 3, Prevention of Corruption Act should be regarded merely as an irregularity falling within the ambit of section 537 of the Criminal P. C. and unless it has caused actual prejudice to the accused, it should not be held to vitiate the trial.
Acquittal set aside and case sent back to Court of Session for hearing of appeal on merits.
S. A. Mahmud, Assistant Advocate‑General, for Appel lant.
Muhammad Afzal Zulla, for Respondent.
‑This is an appeal by the Crown against the acquittal of Nur Alam, of an offence under section 161, P. P. C., by order of the Sessions Judge, Rawal pindi, passed in appeal. The respondent had been convicted by the trial Magistrate and sentenced to eighteen months' rigorous imprisonment. On appeal, the learned Sessions Judge took the view that the trial was vitiated because the police investigation was in contravention of the proviso to section 3 of the Prevention of Corruption Act, 1947. He, therefore, set aside the conviction and sentence without going into the merits of the case.
In order to appreciate the point involved it is necessary to give a brief resume of the relevant facts. The respondent was a patwari at Haryal, Tahsil Gujarkhan, District Rawal‑pindi, in the year 1951. It was alleged that he received a sum of Rs. 16 as illegal gratification for giving a copy of the fard haqiyyat to Muhammad Sadiq P. W., on the 19th of June 1951, whereas the prescribed copying fee was only Rs. 1‑14‑0. Muhammad Sadiq had approached the respondent for a copy of the relevant record and the latter had demanded an illegal fee of Rs. 16 for it. Through a friend, the complainant contacted the Special Police Establishment at Rawalpindi, on the 19th of June, 1951, in the morning. Under directions of the Deputy Superintendent Police of that Establishment, a Sub‑Inspector was detailed to organise a raid, and the Tahsildar, Gujarkhan, was requested to accompany the Sub -Inspector to supervise the proceeding. (The learned trial Magistrate has mentioned in the course of his judgment that orders of the District Magistrate were taken for the Tahsildar to supervise the raid but this appears to be incorrect, as the documents on record show that the Tahsildar obliged the police at the request of the Deputy Superintendent Police. Before the raid, the Tahsildar had noted down the numbers of eight currency notes of Rs. 2 each, that were left in the possession of Muhammad Sadiq, and initialled them on the back. Muhammad Sadiq was then told to go ahead and pass the money to the respondent, while the Sub‑Inspector and the Tahsildar took up positions in a flour machine near by Muhammad Sadiq proceeded with Fazal Karim (P. W. 3) to the place where the respondent was and duly passed the marked money to him and obtained the fard. The respondent told the witness that his office time was over. The prosecution witnesses, therefore, accompanied him towards his house. As they reached near the flour machine, the Tahsildar confronted him in the presence of the Sub‑Inspector and Nur Muhammad (P. W. 7). The marked money was found on the person of the respondent and a memo (Exh. P. F.) was prepared by the Tahsildar about the seizure of the notes. The fard haqiyyat, Exh. P. C., was also taken into possession from Muhammad Sadiq P. W. per the memo. Exh. P. D. The Sub‑Inspector, M. A. Qureshi (P. W. 4), prepared various memoranda of recoveries, Exhs. P. B., P. D. and P. F. At about 6 p.m. that very day, (the raid having taken place at about 4 p.m.) an order of a first class Magistrate; Gujarkhan was obtained, authorising investigation of the offence. The Magistrate also ordered the issue of a warrant bailable in the sum of Rs. 1,000 against Nur Alam Patwari.
The case then followed a chequered history. The respondent was tried by Chaudhri Muhammad Siddiq, Magistrate First Class, Rawalpindi, who sentenced him to eighteen months' rigorous imprisonment under section 161 of the P. P. C. On appeal the conviction was set aside by the Sessions Judge, Rawalpindi, on the ground that sanction for prosecution of the convict had been signed by the Collector and not by the Deputy Commissioner, and the former was not competent to accord sanction for the prosecution. The requisite sanction of the Deputy Commissioner was then obtained and a fresh prosecution launched. The respondent was, therefore, retried on the 3rd of August, 1952, with the result mentioned in the beginning of this judgment.
The first contention raised by Mr. S. A. Mahmud, on behalf of the Crown, is that in fact no investigation had been done by the Sub‑Inspector, before sanction was accorded for that purpose, by a First Class Magistrate at Gujarkhan. Only the raid had taken place under the supervision of the Magistrate who took charge of the marked money from the accused's possession and the copy of the f and from the possession of Muhammad Sadiq P. W. and passed them on to the Sub‑Inspector. At that time, the respondent was not placed under arrest by the Sub‑Inspector. In this connection, learned counsel has drawn our attention to the fact that the question of legality of the investigation was not raised in the trial Court at all and no question was put to M. A. Qureshi, Sub‑Inspector, in the witness‑box, bearing on the time when he started the investigation. It was urged that the statements of the witnesses must have been recorded by the Sub‑Inspector in the normal course in the police diaries, after he had obtained the requisite sanction for investigating the case. This fact may be presumed to be correct in the absence of any evidence on the record. Mr. Zulla, who appeared for the respondent, however, argued that the police had already received information through Muhammad Sadiq, of a cognizable offence within the meaning of section 161 P. P. C. which makes even an agreement to accept or an attempt to obtain from any person any illegal gratification, an offence under that section. He, therefore, contended that the investigation had started as soon as the Sub‑Inspector was directed by the Deputy Superintendent Police to organise a raid in pursuance of the complaint made by Muhammad Sadiq P. W. He suggested that the Tahsildar was not acting as a Magistrate but merely accompanied the raiding party as a very respectable witness. He also pointed out that the recovery memoranda prepared at the time of the raid, apart from the report of the Tahsildar, were all drawn up by the Sub‑Inspector, though, of course, they were also signed by the Tahsildar.
I do not think Mr. Zulla is right in saying that the police had started investigation of the offence revealed by the complaint of Muhammad Sadiq, which had merely mentioned the demand of the respondent for illegal gratification and an arrangement for its payment having been agreed to. The offence for which the respondent was prosecuted was not the one evidenced by the complaint made to the Deputy Superintendent Police by Muhammad Sadiq but the offence which was actually completed by the passing of the illegal gratification at the time of the raid. It could only be after the money had passed that investigation could in any sense be said to have started qua that offence. However, there is some force in the contention raised by learned counsel for the respondent that the collection of evidence is also part of the investigation and inasmuch as the Sub‑Inspector had taken charge of the marked money and the relevant documents, soon after the raid, he must be deemed to have started investigation there and then. The proper course for the Sub‑Inspector would have been to register a case just after the raid and then to have straight way asked for the permission of the compe tent Magistrate to investigate the offence, leaving all documents connected with the raid in the possession of the Tahsildar for the time being. But this was not done. Consequently, there is room for holding that at least part of the investigation had been done by the Sub‑Inspector prior to the relevant magisterial sanction being obtained. However, it is clear that the final report was submitted in Court for the prosecution of the respondent, by a duly authorised investi gating officer.
The proviso to section 3 of the Prevention of Corruption Act 1947 (as it stood before the Act was amended in 1953) forbids a police officer below the rank of Deputy Superinten dent Police, from investigating an offence under section 161 of the P. P. C., without the order of a Magistrate of the First Class. To the extent that the final report submitted by the Sub‑Inspector in this case included apart of the investigation done prior to the requisite magisterial sanction, there was, it appears a partial infringement of the provisions of this proviso. The question that falls for determination is, therefore, whether this defect in the investigation invalidates the trial that followed.
For the proposition that a trial based on an investigation by an officer not properly authorised is not bad in law, Mr. S. A. Mahmud relied upon the following authorities :‑
(1) Queen Empress v. Mehri (1895 A W N 9 (S B)).
(2) A. V. Joseph v. King Emperor (A I R 1925 Rang. 122 (S B)).
(3) D. D. Dawson v. The King (A I R 1939 Rang. 273 (S B)).
(4) Shivbhat v. Emperor (A I R 1928 Bom. 162 (D B)).
(5) Rustom Ardeshir Banaji v. Emperor (A I R 1948 Bom. 163 (D B)).
(6) Promod Chandra Shekhar v. Rex (A I R 1951 All. 546 (D B)) and
(7) Keshava (and Srivastava v. The State (A I R 1952 All. 122 (S B)).
In the alternative, he argued that the report submitted by the police officer not properly authorised to investigate, could be treated as a complaint within the meaning of section 190 (1) (a) of the Criminal P. C., even if it could not fall within the ambit of subsection (1) (b) of that section. For this part of his argument, learned counsel cited before us Rustom Ardeshir Banaji v. Emperor mentioned above, Emperor v. Walli Muhammad (A I R 1928 Lah. 66 (D B)), Public Prosecutor v. Ratnavelu Chetty (1), King Emperor v. Sada (I L R 26 Bom. 150 (F B)) and Abdullah Khan v Emperor (A I R 1933 Sind 188 (D B)) Learned counsel also referred us to a Privy Council judgment reported as Parbhu v. Emperor (A I R 1944 (P C) 73) as authority for the proposition that an illegal arrest (which is clearly a part of the investigation) does not invalidate a trial.
Mr. M. A. Zulla, on the contrary, supported his argu ments by reference to Sudhir Kumar v. The State (A I R 1953 Cal. 226 (D B)), Feroz ud‑Din v. The Crown (P L D 1954 Bal. 1), The Crown v. Ali Gohar (P L D 1954 Sind 208 and 278), The State v. Mehta Rasiklal Baldevdas (A I R 1954 Sau. 62 (D B)), The State v. Madan Lal (A I R 1954 Pb. 42 (S B)) and Ouseph Varkey v. State (AIR 1954 Tra.‑Co. 492 (D B)).
I will first consider the authorities cited on behalf of the Crown :‑
(A I R 1926 Mad. 865 (F B)) Queen Empress v. Mehri was a case in which an offence under section 376 of the Penal Code had been investigated by an officer below the rank of a police inspector, contrary to the provisions of section 561 of the old Code of Criminal Procedure, 1860. It was observed by Knox, J. in that case that the Magistrate of the District had jurisdiction to take cognizance of the offence, upon any kind of information that may come before him and the fact that the information was based upon an illegal investigation, would not take the offence out of his cognizance. There is no discussion of the law point involved and the ruling is not very helpful.
(2) A. V. Joseph v. King Emperor. The real point decided in this case was whether an accomplice could be a competent witness at the trial of an' accused when he is not being jointly tried with him. Incidentally it was held that every trial which is preceded by a police investigation in which the police have failed to comply with Chapter V of the Criminal P. C., need not necessarily be bad in its entirety. This authority too, in my opinion, does not afford much assistance in the decision of the point agitated in the present case.
(3) D. D. Dawson v. The King is a Single Bench judg ment of the Rangoon High Court, relating to a prosecu tion under the Companies Act of 1913. Offences under sections 4 (5) and 283 of the Act are non‑cognizable, but in that case apparently, the police investigated and submitted a report. It was remarked that the case was not sent up under Chapter XIV of the Criminal P. C. but by a private complaint by U. Tin, who was presumably the investigating officer, and that there seemed to be no obstacle in its being tried by a Magistrate. Reference was made to King Emperor v. Sada and it was remarked that the ruling in question did not show that there was any such impediment to the trial. This authority does provide analogy of which the' Crown can take advantage, but here again there is hardly any discussion of the question with reference to the relevant legal provisions.
(4) Shivbhat v. Emperor. This was a case under the Railways Act. The precedent inquiry had not been conducted by an officer of the rank required by the rules framed under that Act. This was held to be a mere irregularity which did not vitiate the trial. Fawcett, J. pointed out that the pro visions of the Criminal P. C. were applicable subject to any special provision made by any enactment creating a special offence, and he referred in. this connection to subsection (2) of section 5 of the Criminal P. C. If there is anything in the special act opposed to the provisions of section 173 of the Criminal P. C.; then undoubtedly, according to the learned judge, the provisions of the. Code must give way. But at the same time he was of the opinion that there was nothing that clearly frustrated the authority of the police officer mentioned in section 173 of the. Criminal P. C. In any case, the learned judge thought that the irregularity, if any, was curable under section 537 of the Criminal P. C. He then made certain observations which would bear repetition :‑
"I think the main thing to hear in mind is that a con viction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered ; and the question whether that evidence has, in the first place, been elicited by an Inspector or by a Sub‑Inspector is of very minor importance and does not really affect the result of a trial, except to this extent; that the theory is that the higher the rank of the police officer investigating, the more careful and unimpeachable his inquiry is likely to be."
(5) Rustom Ardeshir Banaji v. Emperor. This was a case of an offence under section 161 of the Penal Code. The learned Judges who decided the case found that the provisions of section 3 of the Prevention of Corruption Act 1947 did not apply to the city of Bombay, where the offence had been committed, by virtue of the provisions of section 3 of Bombay Act XXX of 1946. This would have Seen sufficient to dispose of the case so far as the present point is concerned, but the learned Judges went on to hold that even if any irregularity had been committed by a Sub‑Inspector in the investigation of a cognizable offence and in arresting the accused, the charge‑sheet submitted by him to the Magistrate could be treated as a report made in writing by a police officer, within the meaning of section 190 (1) (b) and the Magistrate would have jurisdiction to try the case in law of the provisions of section 156 (2) of the Criminal P. C. It was added that if' the charge‑sheet could not be treated as a report within the meaning of section 190 (1) (b), it could be regarded as a complaint within the meaning of section 4 (1) (b) and it could be taken cognizance of under section 190 (1) (a) of the Code. The ratio decidendi was that if the provisions of the Prevention of Corruption Act 1947 be deemed to be applicable to the case, their effect was that section 156 (1) of the Criminal P. C. was virtually amended and the police officer referred to in that subsection must be one above the rank of a Deputy Superintendent of Police. But subsection (2) of that section which provides that no proceeding of a police officer in any cognizable case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate, could be pressed into service and, therefore, the accused could not be permitted to impugn the validity of the trial by reason of the irregularity committed during the investigation. There also a Sub‑Inspector had investigated the case. The learned Judges recorded their disapproval of the irregularity commit ted during the investigation but nevertheless found that the trial was not bad in law.
(6) Promod Chandra Shekhar v. Rex. The effect of non-compliance with the provisio to section 3 of the Prevention of Corruption Act 1947, was one of the questions that was decided in this case by a Division Bench. The learned Judges held that the proviso to section 3 in so: far as it places a restriction on the powers of a police officer below a certain rank, is in effect a proviso to subsection (1) of section 156 of the Code and is analogous to the provision in section 561 of the same Code. In their opinion, subsection (2) of section 156 of the Code was in terms 'vide enough to cover an investi gation into an offence punishable under section 161 or section 165 Penal Code, which is conducted by a police 'officer not so authorised by the proviso to section 3 of the Prevention of Corruption Act. The decision of the Bombay High Court in Rustom Ardeshir v. Emperor was cited in support and the remarks of Fawcett, J. in Emperor v. Shivbhat were quoted with approval.
(7) Keshawa Nand Srivastava v. The State. This was a Single Bench Judgment of the Lucknow Bench of the Allahabad High Court in which Kidwai, J. followed the decision in Promod Chandra Shekhar v. The State. The relevant provision considered was section 5(4) of the Prevention of Corruption Act 1947 as amended in 1953, but the words are in pari materia with‑the proviso to section 3 of the original Act, and the decision therefore is in point. .
In (10) King Emperor v. Sada a Full Bench of the Bombay High Court, expressed the opinion that there is nothing to prevent a police officer from filing a complaint in a non‑cogni zable case, and where he does file a formal complaint in such a case, he cannot be said to make a "report". A Full Bench of the Madras High Court in Public Prosecutor v. Ratnavelu Chetty laid down that the report of a police officer mentioned in section 190 (1) (b) is not confined to a report of a cogni zable offence. It includes even a. police report in a non cognizable case, and the examination of the police officer concerned, on oath, would not be necessary, in the face of the provisions of section 200 (aa), Criminal P. C. If, in the alternative, it be held that the police report referred to in section 190 (1) (b) of the Code, is confined to, the cognizable cases, it was observed that there was no reason why the report in question should not be treated as a complaint. The learned Judges were inclined to put a wide interpretation on the wording of section 190 (1) (b). This authority was followed by a Division Bench of this Court in Emperor v. Walli Muhammad by Fforde and Agha Haider, JJ. In Abdullah Khan v. Emperor (A I R 1933 Sind 188) a Division Bench of Sind Chief Court ruled that a Magistrate has jurisdiction to take cognizance of a non- cognizable offence upon a complaint by a police officer under section 190 (1) (a) and alternatively to consider it as a report within section 190 (1) (b) of the Code. It was added that irregularities in investigation might affect the weight to be attached to the evidence of the complainant and the witnesses but would not vitiate the proceedings. The Privy Council ruling in Parbhu v. Emperor is also instructive in this connection. The accused in that case 'was not a British subject but a native of the Jind State. He had committed an offence within the jurisdiction of a British Indian Court. He was arrested in the State of Jind by the British Indian Police not properly as it seems but he was subsequently extradited and duly handed over to the British Indian authorities by the Jind State. He was brought to trial and convicted by a British Indian Court within whose jurisdiction he had com mitted the offence. The point raised on his behalf was that his arrest having been effected in the Jind territory by a British Indian Officer, was illegal and that the illegality of the arrest vitiated the whole subsequent proceedings. It was held that the validity of the trial could not be affected by .an irregularity in his arrest. Their Lordships referred to the case reported as Ex‑parte Susannah Scot ((1829) 9 B & C 446), in which a British subject, charged with a crime committed in England, had absconded to Belgium and was arrested. There by a British Police Officer and brought back to England. On objection being taken at the trial to the validity of the arrest, Lord Tenterden, C. J. made the following observation :‑
"The question therefore is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice or whether we are to consider the circumstances under which she was brought here. I thought, I still continue to think, that we cannot inquire into them."
This quotation obviously had the approval of the Privy Council. Reference was also made by their Lordships to Emperor v. Vinayak Damodar Savarkar (I L R 35 Bom. 225), which was a case of a similar nature.
I now address myself to the authorities cited on behalf of the respondent. The first of these to be considered is Sudhir Kumar v. The State. That was a case under section 161 of the Penal Code and it was held that the effect of the proviso to section 3. Prevention of Corruption Act; is that section 156 of the Criminal P. C. was made inapplicable to the investi gation of the offence. It was laid down that failure to comply with the mandatory provisions of the proviso to section 3 of Prevention of Corruption Act was not a mere irregularity but an illegality, the effect of which was that the entire proceed ings based on the charge‑sheet reported by the officer who was not competent to investigate, must fail and must be quashed. The case of Promod Chandra v. Rex was cited before the learned judges but they remarked that it was difficult to see how the fact that the proviso in section 3 of Act II of 1947 operates as a limitation to the powers of investigation given to police officer, can attract the provision of subsection (2) of section 156 of the Code. That would have been the position, in the opinion of the learned judges, if the proviso in question had in fact been incorporated by the Legislature in section 156 of the Code. I note that no reference was made by the learned judges to the provisions of section 5 (2) of the Criminal P. C. This ruling was followed by the Judicial Com missioner, Baluchistan, in Feroz‑ud‑Din v. The Crown. In that case, however, the learned Judicial Commissioner also found that actual prejudice had been caused to the accused because of the conduct of the investigation by a Sub‑Inspector who was personally actuated by malice against the accused.
Falshaw, J. of the Punjab High Court (India), sitting in Single Bench, in The State v. Madan Lal also preferred the view of the Calcutta High Court in Sudhir Kumar v. The State to that of the Allahabad High Court.
In The State v. Mehta Rasiklal Baldevdas, a Division Bench of the Saurashtra High Court dealt with the case of a public servant accused of an offence under section 161 of the Penal Code. The learned judges remarked that the entire investigation appeared to have been completed at the scene of the offence by the Deputy Superintendent Police who made a search of the person of the accused and prepared the recovery memo in respect of the tainted money. There was nothing further to be done by the Sub‑Inspector whose participation in the investigation was impugned as illegal. The‑learned judges therefore, held that the provisions of the proviso to section 3, Prevention of Corruption Act, had not been contravened. The decision is, therefore, not directly in point. Mr. Zulla only cited this case to support his conten tion that the investigation in a case of this kind was practically over with the completion of the raid.
A Division Bench of the Travencore‑Cochin High Court in Ouseph Varkey v. State adopted the view that failure to comply‑with the proviso to section 3 is not a mere irregularity coining within the saving provision contained in subsection (2) of section 156 Criminal P. C., but it amounts to an illegality vitiating the entire proceedings. That was, however, a case wherein it was found that the legality of the investigation was not open to any objection at all, as the District Magistrate had given the requisite order authorising the investigation, The observations of the learned judges, therefore, on the point before us can only be regard as obiter.
In Crown v. Ali Gohar. Hassanally Agha and Vellani, JJ. Followed the Calcutta view and distinguished .the other cases in which the contrary view had been taken. They held that section 156 (2) of the Criminal E. C. could not be invoked by' the prosecution for covering up any defects in the investi gation due to violation of the proviso to section 3 of the Prevention of Corruption Act.
By virtue of subsection (2) of section 5 of the Criminal P. C. all offences under any law other than the Penal Code, have to be' investigated, inquired into, tried and otherwise dealt with, according to the provisions of the Criminal P. C. but subject to any special provisions of the other law. It is, therefore, plain that the provisions of Chapter XIV of the Criminal P. C. are attracted to the investigation of an offence punishable under section 161 P. P. C. or under the Prevention of Corruption Act 1947, but if there is any special provision in the latter Act which is repugnant to the provisions of the Criminal P. C., the general enactment would pro tanto be abrogated or amended, as the case may be. This is also in accord with the substantive section 3 of the Prevention of Corruption Act, which enacts that an offence punishable under section 161 or 165 of the Penal Code, shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898. The proviso to that section, consequently, operates as an amendment to section 156 of the Code. The question, however, is whether it supersedes all the three subsections of section 156 or merely effects an amendment in subsection (1). The answer to this question must depend on the presumed intention of the Legislature as revealed in the Prevention of Corruption Act 1947.
It is to be noted that section 156 of the Code empowers an officer in charge of a police station to investigate a cognizable offence committed within his territorial jurisdiction. The expression "officer in charge of a police station" is defined in clause (p) of section 4 of the Code and it is expressly declared therein that it includes, when the officer in charge is absent from the station house or unable through illness or other cause to perform his duties, the police officer nest in rank who is present at the station house, above the rank of the constable or, when the Provincial Government so directs, any other police officer so present. The connotation of "officer in charge of a police station" is thus a wide one. Subsection (2) of section 156 makes the proceedings of a police officer in a cognizable case, immune from attack on the ground that such officer was not empowered under this section to investigate. Presumably "a police officer" in this context means an officer falling within this wide definition. The words "under this section'' have been specially emphasised by Mr. Zulla as implying that the immunity would not extend to objections based on the proviso to section 3 of the Prevention of Corruption Act. There seems to be some force in this contention, and otherwise too I am inclined to the view, that the express injunction against an officer below the rank of a D. S. P, investigating an offence, unless authorised by a first class Magistrate, should militate against the application of subsection (2) of section 156 of the Code. To that extent the rulings which take the view that this subsection cannot be invoked by the prosecution in respect of an unauthorised investigation may be entitled to weight. But, in my' humble judgment, the matter dyes not rest there. Even if the investigation has not been in conformity with the legal provisions of the proviso to section 3, of the Prevention of Corruption Act, it does not necessarily follow that the subse quent trial should be vitiated. The trial Court will have to decide the case on the basis of evidence led before it, and they mere fact that the agency which collected such evidence was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trying Court. If, of course, the intention can be read into the proviso that the jurisdiction of the Court would itself be barred when an unauthorised police officer conducts the investigation, then the position might be different. But I find no words in the proviso or anywhere in the Prevention of Corruption Act, 1947, which would lead to such a conclusion. The Police Officer may find himself in difficulties during the investigation if he is defined or resisted and. the law may not give him protection or he may make himself liable to criminal or civil action, in certain circumstances but it is hard to see why his disabilities should prevent a Court of law from assessing the value of evidence placed before it in the absence of an enactment, express or implied, to the contrary.
Presuming that the officer making the report was not duly authorised by the order of a Magistrate, his report could still be held to fall within the purview of section 190 (1) (b) of the Code or, in the alternative, can be accepted as a complaint within subsection (1) (a) of that section. I respectfully agree with the view taken in the authorities cited above on this point. There is undoubtedly a conflict of opinion as to whether the words "police report of such facts" occurring in clause (b) of subsection (1) of this section, as it stood before the amendment of 1923, would include reports in cases which the police had no authority to investigate under Chapter XIV of the Code. But after the amendment; and with the omission of the word "police" as qualifying the word "report" in this clause, the preponderance, of authority has veered round to the view that even a police report in a non‑cognizable offence, which the police had not been duly ordered by a Magistrate to investigate, would be included in the word "report". In the' alternative, there is no reason if such a report is not regarded as a police report, not to accept it as a complaint within the meaning of clause (a) .of subsection (1) of section. 190 of the Code. It is to be pointed out that a complaint need not be in any particular form. Such a complaint being one made by a police officer as such, purport ing to execute his official duties, need not entail the necessity of examination of the complainant, before proceedings can start on its basis. Section 200 (aa) of the Code would provide ample cover for such a course. There is nothing in laws to prevent a police officer making a complaint in a case of which the facts have come to his knowledge.
On this view too it is difficult to see‑why the‑ jurisdiction of the trial Court should be ousted merely because the report was submitted by a police officer who was not authorised toy investigate, under the proviso to section 3 of the Prevention of Corruption Act.
In my opinion, infringement of this proviso should be regarded merely as an irregularity falling within the ambit of section 537 of the Criminal P. C. and unless it has cause dl actual prejudice to the accused, it should not be held to vitiate the trial. The distinction between an irregularity and illegality is one of degree rather than of kind, as was made clear by the Privy Council in Pulukuri Kotayya v. Emperor (AIR1948PC63). Every irregularity involves the breach of a legal provision even though it may be expressed in non‑mandatory terms. If an‑illegal arrest, as has been authoritatively held by the Privy Council, is not enough to invalidate the trial, by parity of reasoning, an investigation done in contravention of a provision of law, should not necessarily affect the competency of the Trial Court.
The present case is actually stronger than the one contemplated in most of the rulings cited before us, Here part of the investigation at least was done after due authori sation by a competent Magistrate and the report submitted by the police officer could not, therefore be said to be tainted with illegality. At the most, it could be argued that some of the evidence referred to in the report had been collected at a stage when the investigating officer was not duly armed with authority as required by law. I have, therefore, reached the conclusion that the acquittal of the respondent for the reasons given by the learned Sessions judge cannot be maintained. I would set it aside and send back the case to the learned judge with the direction that he should now heat the appeal on the merits and dispose of it in accordance with law.
A. H.
Case sent back for decision on merits.
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