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1979 Supreme(Pat) 291
IN THE HIGH COURT OF PATNA
Medini Prasad Singh, J.
Jiwachhlal Saraf - Appellants
Vs.
The State of Bihar - Respondent
Cr. Misc. No. 4109 of 1979
Decided On: 21.12.1979
For Appellant/Petitioner/Plaintiff: S.B. Sanyal, N.K. Grawal, R.P. Singh 'Rajesh' and J. Prasad Bhagat
For Respondents/Defendant: Prakash Narain Pandey, Purnendu Prasad Singh, Fanish Singh and P.P. Singh
The illegality in investigation does not affect the cognizance of the offences taken by the Special Judge.
Headnote:
CRIMINAL PROCEDURE CODE - Section 156(2) - Investigation - Legality - Cognizance - Validity - Illegality in Investigation - Effect on Cognizance - Consent of State Government - Necessity - Delhi Special Police Establishment Act, 1946 - Sections 5 and 6 - Interpretation and Application.
Fact of the Case:
The petitioner, Jiwachh Lall Saraf, and six others were accused in a case initiated by Subedar Singh at Phulparas P.S. Case No. 30 dated September 30, 1973. The main allegations against the accused were that they were exporting large quantities of Indian rice in the garb of Neal rice from Bihar to other States and in that connection, they committed various offences under Sections 120B, 419, 420, 465, 467, 468, and 471, Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. The investigation of this case was taken over by the C.B.I. at the request of the Government of Bihar, which gave consent to the members of the Delhi Special Police Establishment (S.P.E.) to exercise powers and jurisdiction in the whole State of Bihar for the investigation of the above offences by ORDER :No. 2328/C dated 24 July 1974. The petitioner challenged the validity of the investigation conducted by the SPE in Uttar Pradesh and Kerala, contending that it was illegal because it had not obtained the requisite consent of the Government of Uttar Pradesh or of the Government of Kerala under Section 6 of the Delhi Special Police Establishment Act, 1946, and under Entry 80 of List I of the VII Schedule of the Constitution.
Finding of the Court:
The court held that the cognizance taken on 22nd April 1978 by the Special Judge, C B I, Patna was not illegal and it cannot, therefore, be quashed. The court found that even if the small portion of the investigation conducted by the SPE in Uttar Pradesh and Kerala was illegal, it would not affect the cognizance of the offences taken by the Special Judge. The court relied on the decision in H.N. Rishbud V. State of Delhi, AIR 1956 SC 196, which held that an invalid police report may be regarded as a complaint and the Magistrate can proceed with the case and that in any case cognizance taken on an invalid police report is only in the nature of an error in a proceeding antecedent to the trial and to such a situation Section 537 of the Code of Criminal Procedure was attracted.
Issues: 1. Whether the investigation conducted by the SPE in Uttar Pradesh and Kerala was illegal due to the lack of requisite consent from the respective State Governments? 2. Whether the illegality in investigation affects the cognizance of the offences taken by the Special Judge? 3. Whether the consent of the State Government is necessary for the SPE to exercise powers and jurisdiction in a State?
Ratio Decidendi: 1. The court held that the investigation conducted by the SPE in Uttar Pradesh and Kerala was illegal as it did not obtain the requisite consent of the respective State Governments under Section 6 of the Delhi Special Police Establishment Act, 1946, and under Entry 80 of List I of the VII Schedule of the Constitution. 2. However, the court held that the illegality in investigation does not affect the cognizance of the offences taken by the Special Judge. The court relied on the decision in H.N. Rishbud V. State of Delhi, AIR 1956 SC 196, which held that an invalid police report may be regarded as a complaint and the Magistrate can proceed with the case and that in any case cognizance taken on an invalid police report is only in the nature of an error in a proceeding antecedent to the trial and to such a situation Section 537 of the Code of Criminal Procedure was attracted. 3. The court held that the consent of the State Government is necessary for the SPE to exercise powers and jurisdiction in a State.
Final Decision: The court dismissed the petitioner's application challenging the validity of the investigation conducted by the SPE and the cognizance taken by the Special Judge.
Medini Prasad Singh, J.
1. A trial being Special Case No. 12 of 1978 is pending before the Special Judge, C.B.I. Patna in Phulparas P.S. Case No. 30 dated September 30, 1973 initiated by one Subedar Singh. The petitioner Jiwachh Lall Saraf with six others are accused in that case. The main allegations against the accused are that they were exporting large quantities of Indian rice in the garb of Neal rice from Bihar to other States and in that connection they in conspiracy with each other committed various offences under Sections 120B, 419, 420, 465, 467, 468 and 471, Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 at Ghoghardiha railway station of the district Madhubani and other places. The Investigation of this case was taken over by the C.B.I. at the request of the Government of Bihar which admittedly gave consent to the members of the Delhi Special Police Establishment (briefly, the S.P.E.) to exercise powers and jurisdiction in the whole State of Bihar for investigation of the above offences by ORDER :No. 2328/C dated 24 July 1974 as required by Section 6 of the Delhi Special Police Establishment Act, 1946 (the Act, for short) it is not in doubt that the provisions of Sections 5 and 6 of the Act are mandatory and the S.P.E. cannot investigate any offence without complying with the provisions of Sections 5 and 6. Section 5 of the Act authorises the Central Government to extend to any area the powers and jurisdiction of the S P E for the investigation of any offence or classes of offences specified in a notification under Section 3 thereof. But Section 6 says that nothing contained in Section 5 shall be deemed to enable any member of the S P E to exercise powers and jurisdiction in any area in a State not being a Union Territory or railway area without the consent of the Government of that State. It is clear that any investigation conducted in violation thereof will be illegal. The point to be noted, however, is as I will presently show that cognizance taken or the trial held by the Special Judge on the basis thereof cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation. Mr. Desraj the Superintendent of the S.P.E. investigated the case. During the course of investigation he examined three witnesses at Gorakhpur and a few witnesses in Kerala. He submitted charge-sheet against the seven accused. Cognizance of the case was taken by the Special Judge on April 22, 1978 and ORDER :for issue of summonses to the accused for their appearance was passed on that very day. Charges were framed against the accused under various penal sections on May 2, 1979. Witnesses were summoned for evidence fixing 6.7.1979 and 7.7.1979 for hearing and, in fact, the prosecution witnesses did come but the accused persons filed several petitions on those dates and also on 4.8.1979 contending that the investigation conducted by the S P E was illegal for want of "consent ORDER :" of the State Government and so the continuance of the criminal proceeding was bad in law and the accused should be discharged. Mr. A.K. Sinha the Special Judge did not find merit in the contention and rejected all the three petitions of the accused by his ORDER :dated 7 August 1979. Hence this application.
2. The Government of India specified the offences and classes of offences to be investigated in a Notification No. 7/55/AVD dated 6.11.1956 issued under Section 3 of the Act: vide Annexure--3 to the counter-affidavit. The prosecution further filed a letter issued by the Government of India No. 6/45/56-AVD, dated 6.11.1956 requesting all the State Government to give fresh consent for the functioning of the S P E in view of the reorganisation of the States: Vide Annexure-A to the counter affidavit. The prosecution has also filed the consent ORDER :of the Government of Uttar Pradesh No. 453/VIII-483/56 dated Lucknow, February 19, 1957 issued by the Dep
