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PUNJAB & HARYANA HIGH COURT
Harnam Singh, D.Falshaw and S.S.Dulat JJ.
Krishen Kumar
Versus
State
Criminal Appeal No. 25 of 1953,
Decided On : MAY 3, 1954
PREVENTION OF CORRUPTION ACT, 1947 - SECTION 5A - INVESTIGATION - IRREGULARITY - SECTION 537 OF THE CODE OF CRIMINAL PROCEDURE, 1898 - APPLICABILITY.
Fact of the Case:
In two corruption cases, the accused were convicted under Section 5(2) of the Prevention of Corruption Act, 1947 (the Act). In one case, the investigation was conducted by a police officer below the rank of Deputy Superintendent of Police without the order of a Magistrate of the first class, as required by Section 5A of the Act. In the other case, the investigation was conducted by a police officer below the rank of Deputy Superintendent of Police, but with the order of a Magistrate of the second class. The accused challenged the convictions on the ground that the failure to comply with Section 5A of the Act vitiated the entire proceedings.
Finding of the Court:
The Full Bench of the Punjab High Court held that the failure to comply with the provisions of Section 5A of the Act in the matter of investigation did not bar the trial based on the report of a police officer not empowered by Section 5A of the Act to investigate. The Court also held that such non-compliance did not vitiate the proceedings based on the report of a police officer not empowered by Section 5A of the Act to investigate and that it was curable within Section 537 of the Code of Criminal Procedure, 1898 (the Code). The Court further held that the arrest of an offender for an offence punishable under Sections 161, 165, or 165A of the Indian Penal Code or Section 5(2) of the Act without a warrant did not vitiate the proceedings in the trial.
Issues: 1. Whether the failure to comply with Section 5A of the Prevention of Corruption Act, 1947, in respect of investigation, is an illegality which vitiates the whole proceedings in the trial or bars a trial, or whether it is merely an irregularity curable under the provisions of the Code of Criminal Procedure, 1898? 2. Whether investigation of an offence under Section 161, Section 165, or Section 165A of the Indian Penal Code or under Sub-section (2) of Section 5 of the Act by a police officer below the rank of a Deputy Superintendent of Police without the order of a Magistrate of the first class bars the trial based on the report made by that police officer? 3. Whether investigation of an offence under Section 161, Section 165, or Section 165A of the Indian Penal Code or Sub-section (2) of the Act by a Police Officer below the rank of a Deputy Superintendent of Police without the order of a Magistrate of the first class vitiates the whole proceedings in the trial based on the report made by that police officer or is a mere irregularity curable within Section 537 of the Code of Criminal Procedure? 4. Whether the arrest of an offender for offence punishable under Section 161, Section 165, or Section 165A of the Indian Penal Code or Sub-section (2) of Section 5 of the Act without warrant vitiates the whole proceedings in the trial.
Ratio Decidendi: 1. The Court held that the failure to comply with the provisions of Section 5A of the Act in the matter of investigation did not bar the trial based on the report of a police officer not empowered by Section 5A of the Act to investigate. The Court reasoned that Section 5A of the Act did not render the proceedings void and that the contravention of its provisions was curable under Section 537 of the Code. 2. The Court held that investigation of an offence under Sections 161, 165, or 165A of the Indian Penal Code or under Sub-section (2) of Section 5 of the Act by a police officer below the rank of a Deputy Superintendent of Police without the order of a Magistrate of the first class did not bar the trial based on the report made by that police officer. The Court reasoned that the provisions of Section 5A of the Act did not prevent Special Judges from taking cognizance of such offences and that the contravention of its provisions was curable under Section 537 of the Code. 3. The Court held that investigation of an offence under Sections 161, 165, or 165A of the Indian Penal Code or Sub-section (2) of the Act by a Police Officer below the rank of a Deputy Superintendent of Police without the order of a Magistrate of the first class did not vitiate the whole proceedings in the trial based on the report made by that police officer. The Court reasoned that the contravention of the provisions of Section 5A of the Act was curable under Section 537 of the Code. 4. The Court held that the arrest of an offender for an offence punishable under Sections 161, 165, or 165A of the Indian Penal Code or Sub-section (2) of Section 5 of the Act without a warrant did not vitiate the whole proceedings in the trial. The Court reasoned that the illegality of the arrest was irrelevant in determining the guilt of the accused at the trial.
Final Decision: The Court answered the questions referred to it as follows: 1. Non-compliance with the provisions of Section 5A of the Act in the matter of investigation does not bar the trial based on the report of a police officer not empowered by Section 5A of the Act to investigate. 2. Non-compliance with the provisions of Section 5A of the Act does not vitiate the proceedings based on the report of a police officer not empowered by Section 5A of the Act to investigate. 3. Non-compliance with the provisions of Section 5A of the Act in the matter of investigation is curable within Section 537 of the Code. 4. The arrest of an offender for an offence punishable under Sections 161, 165, or 165A of the Indian Penal Code or Section 5(2) of the Act without a warrant does not vitiate the proceedings in the trial.
Harnam Singh, J.
1. In Criminal Appeals Nos. 25-D and 434 of 1953 the question given, hereunder has been referred to the Full Bench for decision:
"Whether the failure to comply with Section 5A of the Prevention of Corruption Act, 1947, in respect of investigation, is an illegality which vitiates the whole proceedings in the trial or bars a trial, or whether it is merely an irregularity curable under the provisions of the Code of Criminal Procedure?"
2. Shortly put, the facts of the cases out of Which Criminal Appeals Nos. 25-D and 434 of 1953 have arisen are these: In Corruption Case No. 3 of 1953 Krishan Kumar was prosecuted under Section 5(2), Prevention of Corruption Act, 1947, hereinafter referred to as the Act, on the charge ghat he, being a public servant, committed the offence of criminal misconduct by dishonestly and fraudulently misappropriating wagon-load of iron and steel, weighing 550 maunds worth rupees 11,141/8/- on 2-10-1950. Sub-Inspector Sumair Shah Singh investigated that case without the order of a Magistrate of the first class as required by Section 5(4) of the Act. In 1951 Shri Atam Parkash Magistrate of the first class took cognizance of the offence under Section 190, Criminal P. C., hereinafter refered to as the Code, on the report of Sub-Inspector Sumair Shah Singh. On the commencement of the Criminal Law Amendment Act, 1952, the Magistrate forwarded for trial to the-Special Judge under Section 10 of that Act the case, State V/s. Krishan Kumar. In the Court of the Special Judge, Shri P.C. Gera P. W. 1 was examined on 1-5-1953 and by the judgment under appeal in Criminal Appeal No. 25-D of 1953 the Special Judge has convicted Krishan Kumar under Section 5(2) of the Act and sentenced him to suffer rigorous imprisonment for one year and six months. In corruption Case No. 30/2 of 1952 Mohindar Singh was prosecuted under Section 161, Penal Code, and Section 5(2) of the Act on the charge that on 31-10-1952 he, being a public servant, accepted rupees 50/- by way of bribe from Madan Lal P. W. 1. Sub-Inspector Hargopal Singh P. W. 7 investigated the case under order of Sardar Sant Singly P. W. 3, Magistrate second class, passed on the 31st of October, 1952, Exhibit P-M/1. By the judgment under appeal in Criminal Appeal No. 434 of 1953 the Special Judge has convicted Mohindar Singh under Section 161, Penal Code, and Section 5(2) of the Act and sentenced him to suffer rigorous imprisonment for six months under Section 161, Penal Code. No sentence has been imposed on Mohindar Singh under Section 5(2) of the Act.
3. In Corruption Case No, 3 of 1953 objection as regards contravention of the provisions of Section 5(4) of the Act was neither raised in the Court of the Magistrate nor in the Court of the Special Judge. In corruption Case No. 30/2 of 1952 objection as regards the contravention of the provisions of Section 5A the Act was raised in the trial Court but the Special Judge finding that there was no suggestion that investigation by Sub-Inspector Hargopal Singh has in fact occasioned a failure of justice has overruled the objection.
4. In approaching the matter, I think it proper to reproduce herein the provisions of the Act bearing on the question referred to us for decision, and the amendments made in those provisions by the Criminal Law Amendment Act, 1952, and the Prevention of Corruption (Second Amendment) Act, 1952. In Corruption Case No. 3 of 1953 the provisions of Section 5(4) of the Act applied to the investigation. Section 5(4) of the Act provided:
"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under Sub-section (2) without the order of a Magistrate of the first class or make any arrest therefore without a warrant."
5. By Section 6 Criminal Law Amendment Act, 1952, the State Governments were empowered to appoint by notification in the Official Gazette Sp
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