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MADHYA BHARAT HIGH COURT, INDORE BENCH
SHINDE, SAMVATSAR, JJ.
Union of India - Applicant
Versus
Mahesh Chandra Sharma - Non-Applicant
Criminal Revn. No. 108 of 1955
Decided On : 29-08-1956
PREVENTION OF CORRUPTION ACT - SECTION 5-A - INVESTIGATION - MAGISTRATE'S PERMISSION - SCOPE AND PURPOSE - JUDICIAL DISCRETION - COURT'S POWER TO REVIEW - FACTUAL MATRIX: - Whether the Magistrate should or should not have given permission to investigate a case under the Prevention of Corruption Act, S. 5-A, is a question that can be examined by the trial Judge under S. 537, Cr. P. C., if the objection is raised at an early stage of the proceedings. - S. 5-A of the Prevention of Corruption Act does not give priority to investigation by a Deputy Superintendent of Police over an investigation by an officer of a lower rank authorized by a Magistrate. Both investigations are on the same footing, and the Magistrate's permission is required to ensure that the investigation is not frivolous or vexatious. - The Magistrate, in granting permission to an officer below the rank of a Deputy Superintendent of Police, must exercise judicial discretion and consider whether there are good and sufficient reasons to conduct the investigation. The Magistrate is not required to be satisfied that the Deputy Superintendent of Police is unable to undertake the investigation. - In the present case, the Magistrate perused the F.I.R. before granting permission to the Inspector of Police to investigate the case. This shows that the Magistrate exercised judicial discretion in granting permission, and the trial Court erred in discharging the accused on the ground that the Magistrate did not satisfy himself that the Deputy Superintendent of Police was unable to conduct the investigation.
Fact of the Case:
An offence under S. 161, I. P. C. and S. 5(2) read with S. 5(1)(b), Prevention of Corruption Act was registered. The Deputy Superintendent of Police gave a direction to Inspector Saksena to investigate the case, and Mr. Saksena applied to Additional District Magistrate, Indore for permission to investigate the case and arrest the accused. The permission was granted by Mr. Acharya and the investigation was conducted by Inspector Saksena. On 15-6-1955 sanction was obtained under S. 6(c) of the Prevention of Corruption Act and on 24-6-1955 a charge-sheet was submitted. On 2-8-1955 the accused sought an adjournment which was granted. On 18-8-1955 an application was moved on behalf of the accused to the effect that the Deputy Superintendent of Police was the competent officer to investigate and that non-compliance with the mandatory provisions violated the Prevention of Corruption Act. It was prayed that Dy. S. P. be examined to find out why he could not conduct the investigation. On 18-8-1955 the Court ordered that the examination was unnecessary. On 24-10-1955 an application was made for summoning Mr. Acharya and Dy. S. P. as witnesses. In the alternative it was prayed that reinvestigation be ordered. On 3-11-1955 the Special Judge ordered that the present proceedings are set aside and the accused is discharged. He also directed that the Dy. S.P., Indore should conduct reinvestigation of the offence from the stage it was entrusted by him to the Inspector and then put up a fresh challan, if he deemed fit.
Finding of the Court:
The trial Court erred in discharging the accused on the ground that the Magistrate did not satisfy himself that the Deputy Superintendent of Police was unable to conduct the investigation. The Magistrate exercised judicial discretion in granting permission to the Inspector of Police to investigate the case, and both investigations are on the same footing.
Issues: 1. Can the trial Judge go into the question, whether the Magistrate should or should not have given permission, as cognizance had been taken? 2. Whether it is necessary for the Magistrate to see why Dy. S. P. cannot investigate the case? 3. Was the trial Court right in discharging the accused and directing the Dy. S. P. to put up a fresh challan if he deemed fit?
Ratio Decidendi: 1. The trial Judge can go into the question of whether the Magistrate should or should not have given permission, as cognizance had been taken, if the objection is raised at an early stage of the proceedings under S. 537, Cr. P. C. 2. The Magistrate is not required to be satisfied that the Deputy Superintendent of Police is unable to conduct the investigation before granting permission to an officer of a lower rank under S. 5-A(c) of the Prevention of Corruption Act. 3. The trial Court erred in discharging the accused and directing the Dy. S. P. to put up a fresh challan if he deemed fit, as the Magistrate exercised judicial discretion in granting permission to the Inspector of Police to investigate the case.
Final Decision: The revision is accepted and the order of the trial Court is set aside. The learned Special Judge is directed to deal with the case according to law.
SHINDE, J.
This revision has been referred to a Division Bench under S. 29, Madhya Bharat High Court of Judicature Act by a Single Bench. The facts out of which this revision arises are briefly as follows :
2. On 5-2-1955 an offence under S. 161, I. P. C. and S. 5(2) read with S. 5(1)(b), Prevention of Corruption Act was registered. On 7-2-1955. the Deputy Superintendent of Police gave a direction to Inspector Saksena and Mr. Saksena applied to Additional District Magistrate, Indore for permission to investigate the case and arrest the accused. The permission was granted by Mr. Acharya and the investigation was conducted by Inspector Saksena.
On 15-6-1955 sanction was obtained under S. 6(c) of the Prevention of Corruption Act and on 24-6-1955 a charge-sheet was submitted. On 2-8-1955 the accused sought an adjournment which was granted. On 18-8-1955 an application was moved on behalf of the accused to the effect that the Deputy Superintendent of Police was the competent officer to investigate and that non-compliance with the mandatory provisions violated the Prevention of Corruption Act.
It was prayed that Dy. S. P. be examined to find out why he could not conduct the investigation. On 18-8-1955 the Court ordered that the examination was unnecessary. On 24-10-1955 an application was made for summoning Mr. Acharya and Dy. S. P. as witnesses. In the alternative it was prayed that reinvestigation be ordered. On 3-11-1955 the Special Judge ordered that the present proceedings are set aside and the accused is discharged.
He also directed that the Dy. S.P., Indore should conduct reinvestigation of the offence from the stage it was entrusted by him to the Inspector and then put up a fresh challan, if he deemed fit. Against this order the Union of India filed the present revision. When it came up for hearing before Samvatsar, J., he referred the case to the Division Bench as it involved an important question of law.
3. The learned Advocate-General raised three contentions before us :
1. Can the trial Judge go into the question, whether the Magistrate should or should not have given the permission, as cognizance had been taken?
2. Whether it is necessary for the Magistrate to see why Dy. S. P. cannot investigate the case?
3. Was the trial Court right in discharging the accused and directing the Dy. S. P. to put up a fresh challan if he deemed fit?
4. We propose to deal with these questions seriatim.
5. The point, whether the trial Judge can go into the question whether the Magistrate should or should not have given permission, has to be considered in the light of the provisions of S. 537, Criminal Procedure Code. Section 537 reads as follows :
"Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter 27 or on appeal or revision on account :
(a) Of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code or
(b) ...............
(c) ...............
(d) ...............
unless such error omission, irregularity or misdirection has in fact occasioned a failure of justice. Explanation :- In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
It is clear from the language of the section that no finding, sentence or order can be reversed unless any error, omission or irregularity in any proceeding has in fact occasioned a failure of justice. From the explanation, it is clear that in determining whether a failure of justice has been occasioned or not, the Court is to have regard to the fact whether the objection is raised at an early stage in the proceedings or not.
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