Dr. R.R. Kishore vs C.B.I. on 5 October, 2006

Bench: B D Ahmed

Dr. R.R. Kishore vs C.B.I. on 5/10/2006

JUDGMENT

Badar Durrez Ahmed, J.

1. This Revision petition is directed against the order dated 30th of April, 2006 passed by the Special Judge, CBI. The petitioner is aggrieved by the fact that his application for discharge was dismissed by the learned Special Judge. The petitioner had moved an application seeking discharge in view of the Provisions of Section 6A(1) of the Delhi Special Police Establishment Act, 1946 which provided that the Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegations, inter alia, relate to the employees of the Central Government of the level of Joint Secretary and above. It is an admitted position that the petitioner was the Chief District Medical Officer (CDMO), Government of NCT of Delhi and was of the rank of Joint Secretary. It was contended that this provision was clearly applicable.

2. One Mr Handa, a Radiologist, was running runs a diagnostic center. There was an allegation that he was conducting pre-natal tests to determine the sex of the foetus and which could ultimately result in female foeticide. It is alleged that the present petitioner had demanded a certain sum of money from the said Mr Handa to put his case right. It is alleged that the sum of money was demanded on behalf of some other persons including the members of the Advisory Committee. The amount of money allegedly demanded was about Rs 80,000/- which was to be paid in two lots of Rs 40,000/- each. At that point of time, the said Mr Handa is supposed to have registered a complaint with regard to the alleged demand of bribe. The complaint was registered on 16.12.2004 at 2 p.m. in the form of an FIR No. RC DA1 204A-0051/7625. At the end of the said FIR it is indicated as under:

The above facts prima facie disclose commission of cognizable offence punishable Under Section 7 of PC Act, 1988 against Sh. Dr. R.R. Kishore Chief Distt Medical Officer (South) Dispensary Building, Begumpur Malviya Nagar, New Delhi. A regular case is therefore registered and entrusted to Sh. Amit Vikram Bhardwaj, Inspector, CBI, ACB, New Delhi for investigation.

3. It transpires that thereafter, a trap was laid and, on the basis of the arrangement, the complainant who was present in the CBI office was asked to speak with the accused/petitioner over the phone, which conversation was allegedly recorded. The conversation revealed that the petitioner had agreed to accept a certain sum of money in the evening of 16.12.2004. The currency notes were arranged for an amount of Rs 35,000/-. The same were treated with the Chemical known as phenolpthalien. At the appointed time the said Mr Handa along with the CBI officials reached the residence of the present petitioner. Mr Handa entered the premises alone. He was provided with a digital tape recorder which was pasted onto his body and when he was inside the house of the present petitioner the conversation that went on between the two was also allegedly recorded and heard simultaneously at the CBI Headquarters. When the complainant came out of the house he gave the signal and the raiding party entered the premises and, thereafter, the said currency notes were allegedly found placed in an Almirah inside the petitioner’s residence. Allegedly, the hands of the petitioner were washed with sodium carbonate solution which turns pink in colour on interaction with phenolpthalien. This is exactly what is said to have happened. In other words, according to the prosecution the said currency notes were handled by the present petitioner, thereby completing the act of accepting bribe. The fabric of the sofa where the notes were handed over was also similarly washed and the solution was found to turn pink. Therefore, according to the prosecution, the money was clearly handed over by Mr Handa to the present petitioner at his residence as alleged.

4. The petitioner denies the aforesaid sequence of events. However, his main objection is that no inquiry or investigation into any offence could have been conducted without the previous approval of the Central Government in view of the clear provisions of Section 6A of the Delhi Special Police Establishment Act, 1946. He submitted that laying of the trap and events subsequent thereto are all part of investigation. When no investigation could be undertaken in view of Section 6A(1) of the Delhi Special Police Establishment Act, 1946, no trap could be laid and the entire investigation was vitiated as there was no prior approval.

5. Mr Tiwari, who appeared for the CBI, however, submitted that no approval was necessary because the case involved the arrest of the present petitioner on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration covered in Clause (c) of the explanation to Section 7 of the Prevention of Corruption Act, 1988. He submitted that the provisions of Section 6A(2) were non-obstante the provisions contained in Sub-section (1) and therefore, no such approval was at all necessary.

6. The petitioner, in rejoinder referred to two decisions of the Supreme Court namely:

(1) Shailenderanath Bose v. The State of Bihar AIR 1968 SC 1292 (paragraph 5) and

(2) The State of Madhya Pradesh v. Mubarak Ali AIR 1959 SC 709 (paragraph 7).

The petitioner, who appeared in person, submitted that when the FIR was registered at 2 p.m. no further steps could have been taken without the approval required under Section 6A(1). He submitted that laying of a trap was part of the investigation. According to him, this is what has been laid down by the Supreme Court in Shailenderanath Bose (supra) following the case of Mubarak Ali (supra).

The following questions arise for consideration:

1. What is the background with regard to Section 6A of the Delhi Special Police Establishment Act, 1946?

2. Did the CBI act in contravention of Section 6A(1)?

3. If yes, does it mean that the entire trial consequent upon an illegal investigation is vitiated?

Question No. 1: What is the background of Section 6A of the DSPE Act?

7. Section 6A was introduced into the DSPE Act with effect from 11.9.2003 by virtue of Section 26(c) of the Central Vigilance Commission Act, 2003. The pre-cursor to Section 6A was the Single Directive which was a consolidated set of instructions issued to the CBI by the various Ministries/Departments. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contained certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. Directive No. 4.7 (3) (i) was as under:

4.7(3)(i) In regard to any person who is or has been a decision-making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.

The similarity between Section 6A(1) and this Directive can be seen immediately. Section 6A of the DSPE Act reads as under:

6A. Approval of Central Government to conduct inquiry or investigation – (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to –

(a) the employees of the Central Government of the level of Joint Secretary and above; and

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government Companies, Societies and local authorities owned or controlled by that Government.

(2). Notwithstanding anything contained in Sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in Clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).

8. The Single Directive was quashed by the Supreme Court in the case of Vineet Narain v. Union of India (1988) 1 SCC 226 essentially on the ground that it was an executive order and did not have any statutory force. The differentiation created between officers was held to be bad. The Supreme Court held:

43. There is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a prerequisite for the court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the Act. The word “superintendence” in Section 4(1) of the Act in the context must be construed in a manner consistent with the other provisions of the Act and the general statutory powers of investigation which govern investigation even by the CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act, 1947 (Section 19 of the 1988 Act) without which no court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the Act can be harmonised with Section 3 and the other statutory provisions.

44. The Single Directive has to be examined in this background. The law does not classify offenders differently for treatment there under, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as “decision-making officers”. The question is whether any distinction can be made for them for the purpose of investigation of an offence of which they are accused.

45. Obviously, where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision-making process, there is no rational basis to classify them differently. In other words, if the accusation be of bribery which is supported by direct evidence of acceptance of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. It is for this reason that it was conceded that such cases, i.e., of bribery, including trap cases, are outside the scope of the Single Directive. After some debate at the Bar, no serious attempt was made by the learned Attorney General to support inclusion within the Single Directive of cases in which the offender is alleged to be in possession of disproportionate assets. It is clear that the accusation of possession of disproportionate assets by a person is also based on direct evidence and no factor pertaining to the expertise of decision-making is involved therein. We have, therefore, no doubt that the Single Directive cannot include within its ambit cases of possession of disproportionate assets by the offender. The question now is only with regard to cases other than those of bribery, including trap cases, and of possession of disproportionate assets being covered by the Single Directive.

46. There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision-maker. Those are cases in which the inference drawn is that the decision must have been made for a corrupt motive because the decision could not have been reached otherwise by an officer at that level in the hierarchy. This is, therefore, an area where the opinion of persons with requisite expertise in decision-making of that kind is relevant and, may be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the police force does not have the expertise within its fold for the formation of the requisite opinion in such cases, the need for the inclusion of such a mechanism comprising of experts in be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the police force does not have the expertise within its fold for the formation of the requisite opinion in such cases, the need for the inclusion of such a mechanism comprising of experts in the field as a part of the infrastructure of the CBI is obvious, to decide whether the accusation made discloses grounds for a reasonable suspicion of the commission of an offence and it requires investigation. In the absence of any such mechanism within the infrastructure of the CBI, comprising of experts in the field who can evaluate the material for the decision to be made, introduction therein of a body of experts having expertise of the kind of business which requires the decision to be made, can be appreciated. But then, the final opinion is to be of the CBI with the aid of that advice and not that of anyone else. It would be more appropriate to have such a body within the infrastructure of the CBI itself.

47. The Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under Section 4(1) of the Act….

9. As observed in Subramanian Swamy v. Director: CBI , the single directive was stated to have been issued to protect decision-making level officers from the threat and ignominy of malicious and vexatious inquiries/investigations and to give protection to officers at the decision-making level and to relieve them of the anxiety from the likelihood of harassment for taking honest decisions. It was said that absence of such protection to them could adversely affect the efficiency and efficacy of these institutions because of the tendency of such officers to avoid taking any decisions which could later lead to harassment by any malicious and vexatious inquiries/investigations.

10. Anyhow, the Supreme Court in Vineet Narain (supra) quashed the Single Directive essentially on the ground that the Single Directive was a mere executive order which created a classification when the law did not permit such a classification with regard to prior approval for investigation in respect of officers of a particular rank and above.

11. It is subsequent thereto that Section 6A has been inserted in the DSPE Act with effect from 11.9.2003. From the date of decision in Vineet Narain’s case (supra) till the introduction of Section 6A in the DPSE Act w.e.f. 11.9.2003, there was no requirement of seeking previous approval for investigation except for the period 25.8.1998 to 27.10.1998 when ordinances were inforce.

12. The validity of Section 6A of the DPSE Act has been challenged in Subramanian Swamy (supra) and the matter has now been referred to a larger bench for consideration in the following manner:

6. In short, the moot question is whether arbitrariness and unreasonableness or manifest arbitrariness and unreasonableness, being facets of Article 14 of the Constitution are available or not as grounds to invalidate a legislation. Both counsel have placed reliance on observations made in decisions rendered by a Bench of three learned Judges.

7. Further contention of learned Solicitor General is that the conclusion drawn in Vineet Narain case is erroneous that the Constitution Bench decision in K. Veeraswami v. Union of India is not an authority for the proposition that in the case of high officials, requirement of prior permission/sanction from a higher officer or Head of the Department is permissible, the submission is that conclusion reached in para 34 of Vineet Narain decision runs contrary to observations and findings contained in para 28 of Veeraswami case.

8. Having regard to the aforesaid, we are of the view that the matters deserve to be heard by a larger Bench, subject to the orders of Hon’ble the Chief Justice of India.

13. Thus, though the validity of Section 6A of the DPSE Act is under challenge and the issue is pending before a larger bench of the Supreme Court. Section 6A is very much in existence and is `in operation`.

Question 2: Did the CBI act in contravention of Section 6A(1)?

14. A plain reading of Section 6A(1) reveals that where (a) an offence is alleged to have been committed under the Prevention of Corruption Act, 1988 and (b) the allegation relates to, inter alia, an employee of the Central Government of the level of Joint Secretary and above, the DPSE (CBI in the present case) shall not conduct any inquiry or investigation into such alleged offence except with the previous approval of the Central Government. Thus, there is a complete bar on initiating any inquiry (which obviously includes a preliminary inquiry) or investigation into such alleged offence without the previous approval of the Central Government. In cases covered by Section 6A(1), prior approval of the Central Government is a pre-condition which has to be satisfied before any inquiry or investigation can be undertaken. What is encompassed in an investigation, will be seen shortly. At this stage, it is clear that before an inquiry or investigation is initiated there must be an approval from the Central Government. If an inquiry or investigation is undertaken without the prior approval of the Central Government, then the inquiry or investigation would be illegal. This is a mandatory provision and is not merely directory.

15. Let me now consider these abstract principles in the context of the factual matrix of the present case. Mr Handa, the complainant sent in his complaint dated 16.12.2004 to the CBI. In this complaint he alleged that he met the petitioner on 14.12.2004 and the petitioner informed him that four members of the Appropriate Authority have become corrupt and that they were demanding Rs 20,000/- each and therefore the petitioner demanded a sum of Rs 80,000/- from the complainant in 2-3 days. The complainant also alleged that the petitioner acceded to the complainant’s request for paying the same in two Installments of Rs 40,000/- each. The complainant then wrote in the complaint that as he did not want to pay the bribe, legal action be taken against the petitioner.

16. On receipt of the said complaint, at 2.00 p.m. on 16.12.2004 itself, the FIR was registered under RC-DAI-2004-A/0051 Under Section 7 of Prevention of Corruption Act, 1988. No preliminary enquiry was conducted. No prior approval was taken from the Central Government even though the petitioner was an officer of the rank of Joint Secretary. Without any approval, the regular case was registered immediately at 2 p.m. and was entrusted to Shri Amit Vikram Bhardwaj, Inspector, CBI, ACB, New Delhi for investigation. It is clear that at 2 p.m. when the regular case was registered and investigation was entrusted to the Inspector, it was without the prior approval of the Central Government. Thus, the investigation initiated at 2 p.m. on 16.12.2004 was in violation of the mandatory provisions of Section 6A(1).

17. At that stage the question of applicability of Section 6A(2) had not arisen. Therefore, the initiation and conduct of investigation on and from 2 p.m. on 16.12.2004 was in contravention of the provisions of Section 6(A)(1). To make the position absolutely clear, an examination of the provisions of Section 6A(2) would be necessary. Section 6A(2) is non obstante the provisions of Section 6A(1). There is no doubt about it. But, it is triggered only in respect of cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in Clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988. A bribe is without any manner of doubt a gratification which is other than legal remuneration as referred to above. Therefore, Section 6A(2) would be applicable in cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept a bribe. At 2 p.m. on 16.12.2004 there was no question of the arrest of the petitioner “on the spot” on the charge of accepting or attempting to accept the bribe. The basic ingredient of arrest on the spot was missing. Consequently, at that stage, Section 6A(2) did not apply and, therefore, the requirement of prior approval stipulated in Section 6A(1) was not diluted or dispensed with.

18. But, things did not stop here. Investigation continued at a rapid pace. Pre-trap arrangements were made. The Complainant who was present at the CBI Officer was asked to speak with the petitioner over the phone to set up a meeting in the petitioner’s residence in the evening. The conversation, which allegedly contained references to the bribe, was allegedly taped. Currency notes were arranged and the trap was allegedly laid to which the petitioner allegedly succumbed and was said to have been caught “red handed” as indicated above. He was subsequently arrested. It is this arrest which is being put forth by the Respondent as an arrest “on the spot” on the charge of accepting bribe. But this happened later in the evening on 16.12.2004 when the regular case had already been registered and the investigation was already under-way. The offence of demanding bribe had already been committed. There was ample time to seek an approval. There was no necessity of laying the trap on that very evening. Had it been the case that the complainant had already fixed the rendezvous time that evening even prior to the lodging of the complaint, then, perhaps, a case for urgency could be made out. But, this was not so. The time for handing over of the bribe amount was fixed on the instructions of the CBI after the case was registered and pre-trap arrangements were made. The events leading to the arrest of the petitioner were pre-planned and well thought of and, to my mind, cannot be construed as an “arrest on the spot” as contemplated under Section 6A(2). As rightly argued by the petitioner, a distinguishing feature of an arrest on the spot while accepting bribe would be that the arrest of the person taking a bribe would precede the registering of a case. Here, the complaint is lodged, the case is registered, investigation is initiated, pre-trap arrangements are made and the arrest is made at the time of the alleged successful trap. This type of case would not fall within the purview of Section 6A(2) and, therefore, the prior approval would be necessary. The prior approval was admittedly not obtained. Consequently, the investigation, including the trap proceedings, was illegal. That laying of a trap is part and parcel of an investigation, is well established. A reference to M.C. Sulkunte (Dr) v. State of Mysore and Sailendranath Bose v. State of Bihar: would suffice.

Question 3: Does it mean that the entire trial is vitiated?

19. The question of illegal investigation and/or illegal arrests and their effect on the trial has been examined by the Privy Council and the Supreme Court in various decisions. The first of those decisions is the case of Prabhu v. Emperor . In this case, the

accused, who was not a British subject but a native of the Jind State, committed an offence within the jurisdiction of British India. He was arrested in the State of Jind by the British Indian Police and was extradited to the British Indian Authorities by the Jind State. He was tried and convicted by the British Indian Court within whose jurisdiction the offence had been committed. A contention was raised on behalf of the accused that his arrest was effected in the territory of Jind by a British Indian Officer and, therefore, the arrest was illegal. It was further contented that inasmuch as the arrest was illegal, this vitiated the entire proceeding. The Privy Council held that the validity of the trial and conviction of the accused was not effected by any irregularity in his arrest. They were of the view that the accused, who was presented for trial at Rohtak within the jurisdiction of British India, had been validly surrendered to the Court there by the Jind authorities and so far as the court at Rohtak was concerned, everything was regular and in order. It is in these circumstances that the Privy Council came to the conclusion that the illegality of his arrest did not vitiate the trial and subsequent conviction.

20. In Gokulchand Dwarkadas Morarka v. The King , the Privy Council was confronted with the question of the validity of a sanction and its effect on proceedings subsequent thereto. Section 23 of the Cotton Cloth and Yarn (Control) Order (1943) provided:

No prosecution for the contravention of any of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government (or of such officer of the Provincial Government not below the rank of District Magistrate as the Provincial Government may by general or special order in writing authorise in this behalf).

After examining the facts of the case and the manner in which the sanction had been granted, the Privy Council was of the view that the sanction given in the case before it was not a sanction as was required by the said Section 23 of the said Order and, therefore, it was not a valid sanction. The Privy Council held that a defect in jurisdiction of the court can never be cured under Section 537 of the Criminal Procedure Code, 1898. Section 537 of the Criminal Procedure Code, 1898 reads as under:

537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-

(a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in an inquiry or other proceedings under this Code, or

(b) of any error, omission or irregularity in the charge, including any misjoinder of charges, or

(c) of any error, omission to revise any list of jurors in accordance with Section 324, or

(d) of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.

This is in pari materia to the provisions of Section 465 of the Code of Criminal Procedure, 1973 which reads as under:

465. Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions hereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

In view of the Privy Council decision in Gokulchand Dwarkadas Morarka (supra) it is apparent that if the statute requires a sanction before any prosecution can be launched and if there is no valid sanction, then the defect in jurisdiction of the court cannot be cured under the provisions of Section 537 (or under Section 465 of the Code of Criminal Procedure, 1973).

21. In Lumbhardar Zutshi v. The King AIR 1950 Privy Council 26, the Privy Council was of the view that even where the procedure had not been followed before making of an order which authorised the police to investigate the alleged offence, such a fault in procedure might have important consequences but it could not deprive the court of its jurisdiction to try the appellants. However, in that case, it must be noted, the Privy Council did not consider the question whether there was any fault in procedure inasmuch as the question of faulty procedure was raised before the Privy Council for the first time without the same being argued before the High Court. The Privy Council was also of the view that the new ground that was sought to be raised, did not involve any question of jurisdiction.

22. I now come to the celebrated case of H.N. Rishbud v. State of Delhi . The Supreme Court was concerned with the provisions of Sub-section (4) of Section 5 of the Prevention of Corruption Act, 1947 which provided that a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under Section 5(2) without the order of a Magistrate of the First Class. In the case before the Supreme Court, it appeared from the evidence that the investigation was conducted not by any Deputy Superintendent of Police but by officers of lower rank. However, subsequently permission of the Magistrate for investigation was obtained but after such permission was accorded, little or no further investigation was made. The question raised before the Supreme Court was – whether the proceedings and trial, initiated on such charge-sheets pursuant to investigation by an officer not authorised to do so, were illegal and required to be quashed? The Supreme Court, after examining the provisions of Section 5(4), was of the view that the same were not merely directory but mandatory and that an investigation conducted in violation thereof would bear the stamp of illegality. The question then arose before the court as to whether and to what extent the trial which followed such an illegal investigation was vitiated. The Supreme Court observed that trial follows cognizance and cognizance is preceded by investigation. It was of the view that undoubtedly, this is the basic scheme of the Code in respect of cognizable cases but it does not necessarily follow that an invalid investigation nullifies the cognizance or the trial based thereon. The Supreme Court observed as under:

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr.P.C is one out of a group of sections under the heading “Conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e, Sections 193 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr.P.C which is in the following terms is attracted:

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court or competent jurisdiction shall be reversed or altered on appeal or revision on account 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 enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in – Prabhu v. Emperor and – Lumbhardar Zuthsi v. The King AIR

1950 PC 26.

These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present case with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.

But the Supreme Court further observed:

It does not follow however, that the invalidity of the investigation is to be completely ignored by the court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.

Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave the conclusion of the trial and of discharging the somewhat difficult burden under Section 537, Cr.P.C of making out that such an error has in fact occasioned a failure of justice.

It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to Section 537, Cr. P.C indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate.

But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.

In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5A of the Act. It is in the light of the above considerations that the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.

From the aforesaid decision it becomes clear that the Supreme Court placed reliance on the provisions of Section 537 of the Code of Criminal Procedure, 1898 in coming to the conclusion that if cognizance is in fact taken on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it, cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The Court also observed that when a breach of a mandatory provision relating to investigation is brought to the notice of the Court at an early stage of trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1947. These observations of the Supreme Court make it clear that the considerations which weigh with the Court at the initial stage and at a stage after trial or conviction are different. While the courts would be loathe to interfere in cases of illegal investigations which are followed by full fledged trials and convictions, the situation is quite different if the objection with regard to the illegality in investigation is brought to the notice of the Court at the earliest point of time. In such an eventuality, it is open to the Court to give such directions as may cure such illegalities in investigation. The Supreme Court itself indicated that appropriate orders for reinvestigation may be passed when the illegality is brought to the notice of the Court at an early stage of the trial. The ratio of this decision, therefore, is not just that the trial is not vitiated unless the illegality in investigation can be shown to have brought about a miscarriage of justice but that if a breach of a mandatory provision regarding the investigation is brought to the notice of the Court at the initial stages of trial then it would be open to the Court to order reinvestigation and not just stand as a mute spectator to the breach of a mandatory provision and permit the trial to go on.

23. The next decision of importance is that of State of Madhya Pradesh v. Mubarak Ali . The facts in this case would be pertinent in the context of the present case also. It was indicated that Daisy Sewing Machine Company Ltd. had opened its stall in the Gwalior Mela and the manager of the said company had to book empty wooden cases of machines and machine parts from Golakmandir railway station, which was near the Gwalior Mela, to New Delhi. When the said manager went to the station to enquire for booking the said cases, the Station Master demanded ten annas for each case as illegal gratification, but he did not agree to it. Subsequently, the Assistant Station Master (Mubarak Ali) agreed to accept eight annas for each case and asked him to bring the wooden cases between 2 to 4 pm on the same day, i.e, January 11, 1955. On this allegation, he requested the police to take action to stop the corruption. The police officer went along with the informant to his stall at Gwalior Mela and found that there were twenty wooden cases ready for booking. The said manager gave the police officer a typed complaint signed by him and duly attested by two witnesses. With the assistance of the police officer, a trap was laid. The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses. The said rupee notes were given to the manager in the presence of the witnesses. The manager was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could over-hear the conversation and also see the Assistant Station Master taking the bribe. He was also told that on his giving a signal, the police would come on the scene. The plan was carried out in detail, as agreed. The Assistant Station Master, after some bargaining, took the bribe, and after the act of bribery was completed, the manager gave the pre-arranged signal. The Sub-Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of the witnesses and asked him to produce the money taken by him as bribe. The Assistant Station Master, when questioned by the Sub-Inspector, gave him his name and also produced the notes which he had kept in his pocket. The police officers took those notes and counted them. The numbers on those notes tallied with those noted in the memorandum. He then searched the person of the Assistant Station Master and secured the articles found on him. He also searched the person of the manager and took from his shirt two currency notes, which he did not give to the Assistant Station Master, as the bargain was struck at a smaller amount, and secured the same. Thereafter, further steps were taken to complete the investigation. The learned Special Judge charged the Assistant Station Master under Section 161 of the Indian Penal Code. The said Assistant Station Master preferred a revision against the said order to the High Court of Madhya Pradesh. The High Court came to the conclusion that the Sub-Inspector applied for permission to investigate 10 days after the investigation started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for the officer of a lower rank to conduct the investigation without it giving the permission as a mere matter of routine. In the result, the High Court set aside the order of the Special Judge with a direction that “in order to rectify the defects and cure the illegalities” he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file. The Supreme Court, in appeal, confirmed the order passed by the High Court and dismissed the appeal. While doing so, the Supreme Court after noticing its earlier decisions in the case of H.N. Rishbud (supra) and Biswabhusan Naik v. State of Orissa observed as under:

5. While the former decision emphasises the importance of the protection given by the Act to public servants against harassment, the latter decision points out the desirability of giving all the necessary facts in an order giving sanction- the same applies to an order of a magistrate- and also the necessity of proof aliunde of the said facts in case the facts are not disclosed in the sanction applying the said two principles, we must hold that in a case where an officer other than the designated officer, seeks to make an investigation, he should get the order of a magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission. For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a sub ordinate police officer to investigate the case.

Reverting to the facts of the case before it, the Supreme Court held

6. In the present case, though objection was taken by the accused at the earliest stage in 1955 on the ground that order giving permission was invalid no attempt was made by the prosecution, though years have elapsed between the date of the petition and that of the order of the Sessions Judge to adduce any evidence to support the contention that the Magistrate gave the permission to the Sub-Inspector only after satisfying himself on the advisability of doing so on the material placed before him. The only material that was placed before the Sessions Judge was the application filed by the Sub-Inspector before the Magistrate seeking the said permission and the order made by him thereon. In that application the Sub-Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under Section 5-A of the Act. On that application, the Magistrate passed the order “permission given”. Neither the application nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission. Ex facie it appears to us, just like it appeared to the High Court that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section. A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate. But the learned Judge of the High Court rightly did not accede to that belated request. We, therefore, without any hesitation, agree with the High Court that the provisions of Section 5-A of the Act have not been strictly complied with in this case.

24. In Munnalal v. State of Uttar Pradesh , the

Supreme Court was once again considering the provisions of Section 5-A of the Prevention of Corruption Act, 1947. The Supreme Court was in this case concerned with concluded trials. It was urged before the Supreme Court that the investigation was irregular and not in accordance with Section 5-A of the Prevention of Corruption Act, 1947 inasmuch as originally the entire investigation was done by a Sub-Inspector of Police and thereafter the case under Section 409/406 of the Indian Penal Code was instituted against the accused, his brother and the executive officer. That case was later withdrawn and it was thereafter that sanction was granted for the prosecution of the accused Munnalal and his brother under Section 5(2) of the Prevention of Corruption Act, 1947 and investigation was made as required under 5-A of that Act. However, the evidence on record revealed that this subsequent investigation merely consisted of the duly authorised investigating officer going through the papers of the earlier investigation and the filing of four prosecutions on the basis of the earlier investigation. The Supreme Court observed that it did not appear from the facts that, though the letter of Section 5-A of that Act was complied with, its spirit was not, for, in reality there was no investigation by the authorised officer and the real investigation had already been done by a Sub-Inspector of police who was never authorised. The Supreme Court then referred to the decision in the H.N. Rishbud (supra) and came to the conclusion that in view of this decision, even if there was irregularity in the investigation and Section 5-A was not complied with in substance, the trials could not be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation. Distinguishing the case of Mubarak Ali (supra) from the one before it in Munnalal (supra), the Supreme Court observed that while in Mubarak Ali’s case (supra) the objection was taken at the earliest stage before the trial began and it was in those circumstances that the trial was stayed till proper investigation was completed and a proper report made thereafter for the prosecution of the accused in that case, in the case before it in Munnalal (supra), no objection was taken at the stage of trial when it began and it was allowed to come to an end. It is in these circumstances, that the Supreme Court observed that the ratio of Mubarak Ali’s case (supra) would not apply and that the decision in H.N. Rishbud’s case (supra) would apply. The Court observed as under:

The appellant therefore cannot say that the trial was vitiated unless he can show that any prejudice was caused to him on account of the illegal or irregular investigation. We have already remarked that no such thing has been shown in this case; nor was it possible to show any such thing in view of the alternative defense taken by the appellant. We therefore reject this contention.

25. This decision in Munnalal’s case (supra) was followed up by another decision of the Supreme Court in the same vein in the case of State of Andhra Pradesh v. Venugopal wherein the Court

observed as under:

25. It is also to be mentioned that no objection that the investigation had been conducted in violation of the Standing Orders appears to have been taken at any stage earlier than the trial in the Sessions Court. It will be proper to hold therefore on the authority of Rishbud’ case, H.N. Rishbud v. State of Delhi that even if the provision that the investigation

had to be held and completed by a Magistrate had the force of law and was mandatory the trial would not be rendered invalid unless it was shown that miscarriage of justice had been caused on account of the illegal investigation. Learned Counsel was not able to show how the accused were in any way prejudiced by reason of the fact that the investigation was completed by the Inspector of Police. We have therefore no hesitation in rejecting the contention raised on behalf of the respondent that the trial was bad in law because investigation was completed by an Inspector of Police. See Munnalal’s Case, (Munnalal v. State of U.P. Criminal Appeals Nos. 102 to 104 of 1961, D/- 17-4-1963

26. In Union of India v. Prakash P. Hinduja , the Supreme Court incidentally considered the question as to what would be the result of any error or illegality in investigation and trail of the accused. With reference to the decision of the Supreme Court in H.N. Rishbud (supra), Prabhu v. Emperor (supra) and Lumbhardar Zuthsi v. The King (supra), the Court held that if cognizance is in fact taken, on a police report initiated by a breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it, cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It also observed that an illegality committed in the course of investigation does not effect the competence and the jurisdiction of the court for trial.

27. While discussing the decision of the Privy Council in Gokulchand Dwarkadas Morarka (supra), the Supreme Court, in the case of Prakash P. Hinduja (supra), was of the view that the case before it and the one before the Privy Council were different. The difference being that in the case before the Privy Council the conviction was set aside as the sanction granted to prosecute the accused in that case was found to be invalid and the said sanction was a requirement of the statute. In the case before the Supreme Court, it was observed that there was no requirement of any sanction by the Central Vigilance Commission (CVC) either under any statute or even under the directions in Vineet Narain (supra). It is in this context that the Supreme Court in Prakash P. Hinduja (supra) observed that the ratio of Gokulchand Dwarkadas Morarka (supra) would not have any application. An examination of this decision by the Supreme Court would reveal that where sanction is required by a statute and if the sanction accorded is not in accordance with the statute and is therefore invalid, it could, as it did in the case of Gokulchand Dwarkadas Morarka (supra), amount to the setting aside of even a conviction based upon an investigation and trial pursuant to such invalid and illegal sanction.

28. After examining the aforesaid decisions of the Privy Council as well as of the Supreme Court, the following principles emerge:

1. If cognizance is taken on the basis of such an illegal investigation and no objection is taken at the initial stages and the trial proceeds to its conclusion and results in conviction then the same can be set aside only if it has resulted in a miscarriage of justice.

2. However, if the illegal investigation is brought to the notice of the Trial Court at the initial stages then the court ought not to proceed with the trial and be a mute spectator to the illegality and contravention of a mandatory provision but should direct reinvestigation so that the defect in investigation is cured.

29. It follows that if, at the initial stage of trial, the illegality of investigation is brought to the notice of the court and yet the Trial Court continues with the trial then, such proceedings would be liable to be set aside by the High Court in exercise of its revisional jurisdiction. In this case, in view of the discussion above, it is clear that the provisions of Section 6A(1) of the Prevention of Corruption Act, 1988 are mandatory and not merely directory. The investigation carried out in contravention of such provisions is, therefore, clearly illegal, in violation of a statutory requirement. The dismissal of the discharge application moved on behalf of the petitioner means that the trial would continue. This cannot be permitted in view of the discussion above. Because, then the court would be turning a blind eye and a deaf ear to the illegality in investigation which has been brought to its notice at the earliest stage. However, it also does not mean that the petitioner is entitled to a discharge and the closure of the case against him. As pointed out in Rishbud’s case and Mubarak Ali’s case, reinvestigation is to be ordered in the context of the provisions of Section 6A of the said Act. While the file is to be kept pending before Special Judge, approval of the Central Government is to be sought for investigation. If approval is accorded then the matter shall be re-investigated as per prescribed procedure and the material gathered in such re-investigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government then the same shall be notified to the Special Judge who shall then close the case.

30. With these directions this revision petition is disposed of.

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Author: savedaughters19

This is a coverage of my struggles to save my daughters.I am thank full to my parents not only for Not killing me ,but also helping me save my daughters... My dream- A big shelter house for women who want to give birth to their daughters and raise them up with dignity and self respect , but have to fight their own families to do so. Will have medical facilities and facilities for legal aid. will have training centers for vocational courses so that they can stand up on their own two feet and stop the dependency on their husbands for finances, A child care center run and managed by the inmates, A kitchen and a vegetable farm run and managed by the inmates. At present only a dream.... But with grace of God will become a reality. God will show the way and means to achieve the dream.

1 thought on “Dr. R.R. Kishore vs C.B.I. on 5 October, 2006”

  1. its an excellent judgement against the vested bureaucrats. it is an example for gross violation by some of the cbi officials at the cost of the cbi.

    Like

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