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Appeal No. 351 of 1956, decided on 5th July 1957.

A Case investigated by police officer not authorised‑Trial, held, not vitiated on that account‑Report of such Police officer would fall under S. 190 (1) (a) or (b), Criminal Procedure Code, (V of 1898)‑Infringement of proviso, curable under S. 537, Criminal Procedure Code.

If an investigation has 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) of the Criminal P. C., in respect of an unauthorised investigation. 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. Though 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.

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. The jurisdiction of the Court is not ousted merely because the report was submitted by a police‑officer who was not authorised to investigate.

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.

Crown v. Tur Alam P L D 1955 Lah. 667 fol.

Con fiscation of goods‑No provision about confiscation in Act under which offence is tried‑General provisions of S. 517 applicable.

A. B. S. Hyder for Appellant.

Salahuddin Ahmed, Deputy Legal Remambrancer for the State.

This is an appeal by the accused who was tried by Mr. A. Mobarak, ex‑officio Special judge, 3rd Court, Tippera. He convicted him under sections 161/165‑A of the P. P. C., and sentenced him to rigorous imprisonment for 1i years and also to pay a fine of Rs. 400. The sum of Rs.400 given as bribe was ordered to go towards the realization of fine. The 12 bhars of biri leaves or its price was ordered to be confiscated to the Government.

The prosecution case briefly stated is that on the night following the 10th June 1953, the S. D. P. O. P. W. 1. S. M. Nawab, arranged a police patrol party with Ansars to guard the village Khalapara within Kasba P. S. in order to detect smuggling from India to Pakistan by the border. P. W. 2 Muhammad Rasul, Head Constable No. 488 of Fakirmura B. O. P., was leader of the patrol party consisting of 4 constables, 4 Ansar Commanders and 2 Ansars. The patrol party under the instruction of the S. D. P. O., started from Akhaura and placed itself on guard in 3 groups in village Khalapara near the ferry ghat over the Howra river. While they were on guard, the Head Constable noticed a group of smugglers about 18 in number carrying 12 bhars of biri leaves coming from the Indian Dominion towards Pakistan. Six of them had lathis and empty bhars in their hands and the other 12 had 12 bhars of biyi leaves on their shoulders. They were challenged by the Head Constable who gave a whistle and the other members of the party who were nearby also came there. The patrol party cordoned the smugglers who wanted to attack the patrol party with lathis in their hands. While they were cordoned, it is alleged, the appellant, who was leader of the party, called P. W. 2, the Head Constable, to a distance and he along with P. W. 4 Noor Muhammad, P. W. 3 Khorshed Alam Khandkar, Ansar Commander, shifted to a distance of 2 or 3 cubits from the place where they were cordoned. It is alleged that the appellant offered and handed over to P. W. 2, the head Constable, Rs. 400. as bribe in 4 currency notes of Rs. 100 each and he requested him to release them. The appellant promised to pay Rs. 100 subsequently. P. W. 2, the Head Constable, raised his hands at once and showed the money to other members of the party stating that this sum was being paid as bribe by the appellant. P. Ws. 2 and 3 put their initials in the corner of the currency notes. The smugglers were escorted to Akhaura by the patrol party and produced before the B. S. I., in charge of Akhaura B. O. P., along with the biri leaves, lathis, and currency notes and lodged an ejahar before him. A seizure list was prepared and a written ejahar was sent to the officer in charge, Kasba, where an F. I. R., form was filled up and a case was started. The accused persons were produced before the S. D. O., Brahmanbaria P. W. 7 Muhammad Mobarak Ali, S. I., of Police, D. A. B., Brahmanbaria, investigated the case and after examining witnesses submitted charge sheet on 27th July 1953, against the appellant and others.

The appellant pleaded not guilty and his case was that he did not offer any bribe to the Head Constable, P. W. 2. It was contended that the money in question was found on the person of the appellant and it was demanded as bribe which the appellant refused to pay and, therefore, a false case was started against him.

On behalf of the prosecution, 7 witnesses were examined and on behalf of the appellant 2 witnesses. The learned Judge did not accept the defence of the appellant and accepting the prosecution case convicted and sentenced the appellant, as stated above.

Mr. Hyder has appeared on behalf of the appellant and he has raised a legal point before us which finds place in ground No. 1 to the memorandum of appeal which is as follows

" For that the investigation having been made by the S. I., D. A. B., an officer below the rank of Deputy Superin tendent of Police, in contravention of the provisions of section 5‑A of the Prevention of Corruption Act, 1947, the whole proceeding has been vitiated and, as such, the order of conviction and sentence cannot be sustained."

He has referred to section 5‑A of the Act which was introduced by the Criminal Law Amendment Act, 1953, (XXXVII of 1953). It is to the following effect

" 5‑A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under any of the sections of the P. P. C., mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class or make any arrest therefor without a warrant :"

There is a proviso to that new section with which we are not concerned. By the said Act, section 165‑A was incorporated in the P. P. C., section 165‑A was introduced in section 3 of the Prevention of Corruption Act, 1947 (II of 1947), and an offence under the new section 165‑A was made triable by a Special judge under the said section 3.

Mr. Hyder has contended that as, in the present case, the investigation was conducted by P. W. 7 Muhammad Mobarak Ali, S. I., of Police, who was not authorised to investigate any offence punishable under any of the sections of the P. P. C., mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class, the whole trial is void and illegal. It is admitted that the said officer did not receive any order of a Magistrate of the first class to conduct the investigation.

The occurrence took place on 11th June 1953, Charge sheet in the case was submitted on 27th July 1953. The Criminal Law Amendment Act, 1953 (XXXVII of 1953), came into force on 17th November 1953, by which an offence under section 165‑A of the P. P. C., was made triable by a Special Judge. At the time of the occurrence, therefore, section 165‑A was not in existence and was not triable under Act II of 1947 but section 165 was and that section was triable by a Special Judge. Sections 161 and 165 of the P. P. C., were made triable under Act II of 1947 by a Special judge as provided in section 3 of that Act. Thus the new section 5‑A, introduced by Act XXXVII of 1953, is not applicable to the facts of this case and the section applicable is section 3 of Act II of 1947. That section is in the following terms

" An offence punishable under section 161 or section 165 of the P. P. C., shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898, notwithstanding anything to the contrary contained therein Provided that a police‑officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant."

Even under the proviso to this section, a police‑officer below the rank of Deputy Superintendent of Police shall not investi gate any offence under section 161 or 165 of the P. P. C., without the order of a Magistrate of the first class. As stated before, admittedly there is no such order of a Magistrate of the first class empowering the investigating officer, who is below the rank of Deputy Superintendent of Police, to investigate the case. It must, therefore, be seen whether the investigation conducted in this case by an officer below the rank of Deputy Superintendent of Police without the order of a Magistrate of the first class can be said to make the trial void and illegal entitling the appellant to an acquittal.

We have heard both the learned Advocate for the appellant and the learned Deputy Legal Remembrancer at length on the interpretation of the proviso to section 3 of Act II of 1947 and also the interpretation of section 5‑A which was brought into existence by Act XXXVII of 1953. The latter section is inapplicable to the facts of this case. So far as the interpretation of the proviso to section 3 of Act II of 1947 is concerned., the learned Deputy Legal Remembrancer has referred us to Crown v. Noor Alam (P L D 1955 Lah. 667). The facts in the reported case are a little different to the facts in the present case. At the trap stage, a Sub‑Inspector, under the directions of the Deputy Superintendent of Police, was detailed to organise a raid, and the Tahsildar. Gujarkhan, was requested to accompany the Sub‑Inspector to supervise the proceeding. The trap laid was successful. According to Mr. Hyder, the Tahsildar, Gujarkhan, was a Magistrate of the first class but there is nothing in the report to substantiate what he states. Two hours after the raid, an order of a first class Magistrate was obtained authorising investigation of the offence. Mr. Hyder has contended that from the first step taken, a Magistrate of the first class accompanied the Sub‑Inspector of police and, therefore, the proviso to section 3 of Act II of 1947 must be deemed to have been complied with. It would also appear from the facts of that case that the final report was submitted in Court for the prosecution of the accused- respondent by a duly authorised investigating officer. Mr. Hyder relies on all these facts to distinguish the cited authority from the facts of the present case The judgment of the Court was delivered by the learned Chief Justice of the West Pakistan High Court and all the legal objections taken against the conviction of the accused in that case were argued threadbare and considered in detail by the learned Chief Justice. It is a judgment covering 12 pages and there is no aspect of any legal proposition which was not considered in that case. From the report it is found that the investiga tion, 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 authorization from a first class Magistrate, and it was 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) of the Criminal P. C., in respect of an unauthorised investigation. It was held further that 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 A in the trying Court. There were 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 alterna tive, 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. The jurisdiction of the Court is not ousted merely because the report was submitted by a police‑officer who was not authorised to investigate. Finally their Lordships held that the 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. On the facts of that case, the acquittal order was set aside and the case sent back to the Court of Session for hearing of the appeal on merits.

We have considered the cited authority very carefully and we have no hesitation in accepting the reasons given for coming to the various findings. We follow that decision, and, accordingly, hold that, although the facts in the present case are stronger from the point of view of the appellant than the facts in the cited authority, the principles enunciated therein would also be applicable to the facts of this case. We, accordingly, hold that although the Sub‑Inspector of police was not authorised by a first class Magistrate to conduct the investigation, the subsequent trial held cannot be said to have been vitiated on that account.

So far as the merits of the appeal are concerned, Mr. Hyder's contention is that the witnesses examined for the prosecution are interested inasmuch as they belong to the Police Force and are also Ansars and, therefore, it is but natural for them to support each other. He has asked us not to accept their evidence specially in view of the fact that no independent witness has been examined. As against this, he has pointed out that the defence examined 2 independent witnesses who have fully established the defence in the case that Rs. 400 was not given as bribe but was taken away by the police party finding the said sum to be on the person of the appellant and the appellant wanted that amount which was not returned.

P. W. 1, S. M. Nawab, is the S. D. P. O., Brahmanbaria, who organised the patrol party. According to him, P. W. 2, Muhammad Rasul, the Head constable. was the leader of the patrol party. Four constables and 5 or 6 Ansars were also in the patrol party which he arranged at Akhaura station. After the arrest of the accused persons including the appellant, they were produced before him as also 12 bhars of biri leaves and some lathis. He was told the details of the arrest of the accused persons and how Rs. 400 was offered and paid to the Head Constable, P. W. 2, as bribe with a request by the appellant to set them free.

The most important witness is P. W. 2, Muhammad Rasul, Head Constable No. 488. He was attached to Fakirmura B. O. P. and under instruction of P. W. 1, the S. D. P. O., Brahmanbaria, himself, P. W. 4, Noor Muhammad Constable No. 1511, P. W. 5 Saleh Ahmad, Constable No. 917, Sarafuddin, Alauddin Ansar Platoon Commander Muhammad Abu Taher, P. W. 3 Khurshid Alam Khandakar, Ansar Commander, Brahmanbaria, P. W. 6 Abdul Kadar, Ansar Commander, and Abdul Gafur, Ansar Abdur Rashid and another went on a patrol duty to Kholapara during the night following 10th June 1953. When they were on guard on the sides of the ferry ghat at Kholapara, they found a group of smugglers, 18 in number, carrying 12 Mars of biri leaves, coming from the Hindusthan Dominion and crossing the border towards Pakistan. Six of those persons had lathis in their hands and they were coming from the village Joynagar within Hindusthan Dominion. He gave a whistle from the ferry ghat at Kholapara and the other members of their party came. Then they encircled the smugglers. At this they wanted to attack them with lathis but they were threatened with rifles. They became silent and they were confined. The appellant was leader of the smugglers and he called the witness to a distance and, accordingly, the witness shifted to a distance of 2 or 3 cubits. Y. W. 3 Khorshed Alam and P. W. 4 Noor Muhammad also shifted with the witness. The appellant offered and handed over to the witness Rs. 400 in 4 currency notes of Rs. 100 and promised to pay Rs. 100 subsequently with a request to set them free. P. Ws. 3 and 4 witnessed the payment to him and he at once informed the other partymen about the offer and payment of the bribe. He showed the four currency notes to them. The witness

a Khorshed Alam put initials on the notes on the spot. The

na currency notes are Exhs. 1 to 1 (3). They then produced the smugglers before the B. S. I., along with the biri leaves and lathis and lodged an ejahar before him. The ejahar was read over to him and he signed it as correctly recorded The numbers of the currency notes are AA‑638793, AA‑307528, X‑696398 and AA‑638795. The S. I., took the biri leaves and lathis in custody and prepared a seizure list. The biri leaves are Exh. 11. The accused were then escorted to the Court of the Sub‑Divisional Officer, Brahmanbaria. His cross examination shows that as soon as he gave the whistle, the other groups came to the place of challenge and none of the villagers came hearing the whistle. With the rising of the sun, they left the place of challenge where he kept the accused persons surrounded. He stated in cross‑examination that it was not a fact that he demanded bribe from the appellant Abdul Noor nor was it a fact that the appellant did not offer and pay any bribe. P. W. 3 is Khorshed Alain Khondkar Ansar Commander, Brahmanbaria. He stated in cross examination that it was not a fact that the accused did not pay Rs. 400 to P. W. 2 as bribe. He also stated that he was not deposing falsely at the instance of Gaziur Rahman. P. W. 4 is Noor Muhammad Constable No. 1511. He stated in cross‑examination that it is not a fact that he searched the body of Abdul Noor and recovered Rs. 400 from him, nor was it a fact that the Head Constable wanted it as a bribe from Abdul Noor who refused the same. He also stated that it is not a fact that the appellant did not pay a sum of Rs. 400 as bribe to the Head Constable. According to this witness, no villagers came to the spot before they left for Akhaura and they had no talk with any villager. P. W. 5 is Saleh Ahmed, Constable No. 917. This witness in cross‑examina tion stated that he did not see the payment of bribe, as he was at a distance of 8 to 10 cubits from P. W. 2 when he showed the four currency notes to them. P. W. 6 is Abdul Kader, Ansar Commander. He also did not see the actual payment of bribe as he was at a distance of 5 to 6 cubits then. P. W. 2 showed the currency notes paid as bribe. He stated that it was not a fact that the sum of Rs. 400 was recovered from the person of the appellant and the Head Constable wanted it as bribe which was refused by the appellant.

P. Ws. 3 to 6 support the prosecution case and corro borate P. W. 2, the Head Constable. No doubt they are members of the patrol party including Ansars but that cannot by itself be a ground for disbelieving them. They were there on patrol duty and they are the most natural and probable witnesses to depose for the prosecution. The occurrence took place early in the morning and it cannot be expected that villagers would come and witness the occurrence at that hour. We accept their testimony, although there are minor discrepancies which do not affect the prosecution case. It has not been established that there is any enmity or ill‑feeling between any of the witnesses and the appellant.

The defence wanted to show that this was a false case engineered by one Gaziur Rahman. Some of the witnesses were questioned about this Gaziur Rahman and what they stated is as follows : P. W. 1, S. M. Nawab, stated in cross examination that he knows one Gaziur Rahman, Ansar Commander at Brahmanbara. He used to see the witness whenever he was called. He does not know if Gaziur Rahman is a Special Police or not. He does not know if Gaziur Rahman and Abu Taher are involved in an embezzlement case at Brahmanbaria. P. W. 2, Muhammad Rasul, stated that he does not know if there is any embezzlement case against Abu Taber and Gaziur Rahman and he cannot say if they were appointed Special Constables. He is not aware if there is any enmity between the appellant and Gaziur Rahman and his father‑in‑law. P. W. 3 Khorshed Alam Khandkar, stated that he met Gaziur Rahman at 8 or 9 p.m., at the Ansar Club. Finally P. W, 6 Abdul Kader stated that he does not know if there is any enmity between the appellant and Ali Hussain on one side and the father‑in‑law of Gaziur Rahman on the other side. This is the evidence so far as Gaziur Rahman is concerned, and it is impossible to hold on this material that a false case has been engineered by Gaziur Rahman against the appellant.

The defence examined 2 witnesses and they are as follows: D. W. 1 is Abdul Rahman who stated that he went to the place of occurrence early in the morning seeing people assembled there. He saw the accused and the others cordoned by the police and Ansars. The cordoned persons were searched by the police and Ansars and Rs. 400 was recovered from the person of the appellant which was kept in his waist. After the money was taken by the police, the appellant wanted back the same but the police refused. After this, the arrested persons along with the money and 12 bhars of biri leaves were taken to Akhaura. He did not see the appellant paying the said money as bribe to the police. He admits that the police party left the place of occurrence by sunrise with the arrested persons. This witness also deposed to the fact that the appellant is not on good terms with Gaziur Rahman. The witness is aged 21 years and is acquainted with the appellant from boy‑hood, D. W. 2 is Afiluddin Ahmed, who also states that he went to the place of occurrence and, after his arrival, the accused and others were searched. A police constable recovered Rs. 400 in 4 currency notes of Rs. 100 each from the waist of the appellant. He did not see the appellant giving money as bribe to the police. The ‑ police took the money in custody against the demand of the accused. It was (suggested to him that he was a smuggler but he' denied that in cross‑examina tion. His evidence shows that his house is to the east of the house of D. W. 1 Abdur Rahman. Both these witnesses do not say that the police party demanded a bribe. At the utmost they, say that they did not see the appellant giving the money as bribe. On a consideration of their evidence it appears that these witnesses must have gone to the place of occurrence after the search, if any, made by the patrol party., Thus they are not competent to say that the money was not given by the appellant as bribe. Both these witnesses appear to be interested in the appellant and we attach no importance'. to their evidence at all but, on the other hand, accept the prosecution evidence as truthful.

The last point urged by Mr. Hyder is that there is no provision in law for the confiscation of the biri leaves and the‑' order passed by the learned judge regarding the confiscation must be set aside. The learned Advocate is not correct. From the evidence of P. W. 2, it would appear that the biri leaves were made an exhibit, namely, Exh. II. Thus the biri leaves were in custody of the Court. Learned Deputy Legal Remembrancer has referred to the provisions of subsection (1) of section 517 of the Code of Criminal Procedure which are as follows

" When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to. any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or, which has been used for the commission of any offence.

In the present case, the biri leaves obviously were used for, the commission of an offence, and, accordingly, the order of confiscation passed by the learned Judge is legal and cannot be challenged. There is no express provision in the Act concerned about confiscation and, in its absence, the general H provisions of law as contained in section 517 of the Code of

Criminal Procedure will be applicable.

We have considered the arguments advanced before us and the evidence in this case, and we are satisfied beyond any doubt that the case against the appellant is a true one and has been proved by reliable evidence. The legal objection raised, as already stated, cannot prevail.

The result, therefore, is that this appeal is dismissed. The appellant who is on bail must now surrender to his bail bond and serve out sentence imposed on him.

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