A mere irregularity in investigation would not be a ground for setting aside the conviction of an accused person unless the Court is satisfied that the accused has been prejudiced by it.

Judgment

SUBBA RAO, J. - (for self and Raghubar Dayal J.) - This appeal by special leave is directed against the judgment of the High Court of Judicature, at Allahabad, Lucknow Bench, Lucknow, setting aside that of the Special Judge (West), Lucknow, who convicted the accused-respondent and sentenced him to one year s rigorous imprisonment under S. 5 (2) of the Prevention of Corruption Act (No. II of 1947), hereinafter called the Act.

2. The case of the prosecution may be briefly stated : The respondent was a booking clerk at Sharanpur in the year 1955-56. Between October 22, 1955 and May 26, 1956 he committed criminal breach of trust in respect of Rs. 49/1/0. On the said allegations the accused was sent up for trial before the Special judge for offences under S. 5 (1) (c), read with S. 5 (2), of the Act. Before the Special Judge the prosecution filed a number of documents numbering upto 124 and examined 20 witness. The accused admitted before him that he had realized the amount as alleged by the prosecution, but pleaded that he had no dishonest intention and that the deficit found was due to inadvertence and oversight. The Special Judge considered the entire evidence and found that the evidence adduced by the prosecution established that the accused misappropriated the amounts received by him as a public servant. It was contended before him that the investigation the case has been made by Sub-Inspector Mathur, who under the law was not entitled to investigate the case as he was below the rank of Deputy Superintendent and hence the trial was vitiated. The learned Special Judge held that the said Sub-Inspector did not conduct any investigation before he obtained the requisite permission from the appropriate authority and that even if he did it had not been established that the accused was prejudiced by such an enquiry. In the result he convicted the accused and sentenced him as aforesaid. On appeal by the accused, the high Court set aside the conviction mainly on the ground that the Sub-Inspector Mathur made "investigation" "before he obtained the permission of the Additional District magistrate (Judicial), Lucknow, to investigate in case and as the said investigation was in violation of the provisions of the Act, the accused must he held to have been seriously prejudiced by the said contravention of the Act. The High Court also casually observed that it was inclined to the view that the prosecution has not eliminated the reasonable possibility of the defence of the accused being correct. For the said reasons the High Court set aside the conviction of the accused and acquitted him. The State has preferred the present appeal against the said judgment of the High Court.

3. The only question that was argued before us is whether the High Court was right in acquitting the accused on the ground that the investigation made by Sub-Inspector Mathur before he obtained the permission of the Magistrate vitiated the entire trial.

4. Learned counsel for the State contended that the said Sub-Inspector only made a preliminary enquiry to ascertain the truth of the information received by him and, thereafter, after obtaining the requisite permission of the Magistrate he made an investigation of the offence and, therefore, there was either illegality nor irregularity in the matter of investigation. In any view, the argument proceeded, the High Court went wrong in setting aside the conviction based on evidence without considering and coming to a conclusion whether the said irregularity, if any prejudiced the accused.

5. On the other hand, learned counsel for the accused-respondent, pressed on us to hold that the investigation was made inconsistent disregard of the safeguards provided by the Legislature in such a case and therefore the Court should, without any further proof, presume prejudice to the accused.

6. Before we consider the merits of the rival contentions it would be necessary to notice briefly the alleged irregularity committed by the prosecut