The validity of prosecution sanction under Section 197 of the Code of Criminal Procedure and the principle that faulty investigation is not a ground to acquit the accused.

P.G. Agarwal, J.

1. Heard Mr. A.R. Borthakur, learned Senior Advocate for the Petitioner and Mr. P.C. Gayan, learned Public Prosecutor.

2. This revision is directed against the order, dated 4.3.2002 passed by the Additional Chief Judicial Magistrate; Nagaon in GR Case No. 1003/2000 whereby charge under Section 218/409 IPC, was framed against the accused Petitioner.

3. The framing of charge in this case has been challenged, firstly on the ground that the Petitioner being a Govt. servant serving as S.I. of Police at the relevant time, sanction under Section 197 , Code of Criminal Procedure is a must before taking cognizance. The records were called for and on perusal of the records, we find that the Superintendent of Police, Nagaon, Assam had accorded prosecution sanction by order, dated 27.2.2001 and the copy of the sanction letter is available on record. Whether the said sanction is a valid and proper sanction in the eye of law will be considered by the trial Court during trial only.

4. It is further submitted that the FIR in the present case was lodged by Jamini Kakati S.I. of Police who was junior to the Petitioner Sri Suresh Kumar Saikia and as such the case could not have been investigated by him.

5. There is no dispute at the Bar that the FIR was lodged by Sri Jamini Kakati S.I. of Police. The case was registered by the then OC, Gouri Kanta Bora and the OC directed the said Jamini Kakati to investigate the case and accordingly the case was investigated by Jamini Kakati and thereafter by one Upen Mohan who filed the charge sheet.

6. Mr. Borthakur, learned senior Counsel has submitted that as the investigation was made by the person who had lodged the FIR, the entire prosecution is liable to be thrown out at the threshold. The learned Counsel has also referred to the Circular passed by the Additional Superintendent of Police, CID, Assam on 2.9.2001, the relevant portion of which reads as follows:

Sub: Suo-moto FIR

Ref: Gauhati High Court's Crl. Appeal No. 9/2000 in Shibjay Reang-Appellant v. State of Tripura-Respondent.

Sir,

With reference to the above, I am directed to inform you that the Hon'ble Gauhati High Court in the Criminal Appeal No. 9/2000 passed a judgment on 22.12.2000 as follows. "It is correct that if a police officer who lodged the FIR is allowed to investigate the case, the investigation may not be free from biasness and impartiality may be put in doubt and for the purpose of inspiring confidence in the minds of the people in general, the police officer who lodged the FIR commonly called Suo moto FIR, should not be allowed to investigate the case save and except undertaking preliminary steps." In view of the above Gauhati High Court's judgment, I am directed to request you to instruct the O/Cs concerned of the P.Ss. under your jurisdiction for compliance of the direction of the High Court.

Yours faithfully,

Addl. Superintendent

of Police,

CID/Assam:::Guwahati.

7. The above circular was issued long after the charge sheet in the present case was filed. However, the question that arises for consideration is that in cases where the investigation has been made by the police officer, who had lodged the FIR, whether the entire prosecution can be thrown out at the threshold on that Count.

8. In a catena of decisions, the Apex Court has held that in case of faulty and defective investigation prosecution case cannot be thrown out. In a recent case of State of U.P. v. Jagdeo AIR 2002 SCW 5330, the Apex Court has held that faulty investigation is no ground to acquit the accused persons. The above decision was reiterated in a recent case of Amar Singh v. Balwinder Singh, (2003) 2 SCC 518. The Apex Court had earlier observed that the Court is to be circumspect in evaluating the evidence and it would not be right in acquitting the accused solely on the count of defects in the investigation. Whether the investigation made by the informant Jamini Kakati in the present case has prejudiced the accused in any manner or strike at the root