“..in the case of investigation under the Delhi Special Police
Establishment Act, an officer below the rank of Inspector cannot investigate
without the order of a competent Magistrate.”- Apex Court
The Apex Court in a recent decision in Union of
India represented through Superintendent of Police Vs. T. Nathamuni1 has laid down the law that in the case
of investigation under the Delhi Special Police Establishment Act, an officer
below the rank of Inspector cannot investigate without the order of a competent
Magistrate. It has further affirmed the ratio laid down in a catena of cases
that invalidity of investigation does not vitiate the result unless a
miscarriage of justice has been caused thereby.
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| Supreme Court of India |
The Bench of Justices M.Y. Eqbal and Shiva Kirti Singh were hearing appeals directed against the
common judgment and order dated 5.7.2013 passed by the Madurai Bench of Madras
High Court in Crl.O.P. No.1943 & 6464 of 2010, whereby the High Court set
aside the order passed by the Trial court permitting a Sub-Inspector of Police
to investigate the matter under the Prevention of Corruption Act.
The case in question involved a complaint from one
S. Muniraj on which basis a case being RC 50(A)/2009 was registered by Central
Bureau of Investigation, ACB, Chennai against the respondent - T. Nathamuni,
Inspector of Income Tax on the allegation that the accused had demanded an
amount of Rs. 5,000/- from the complainant. A trap was laid and allegedly the
accused was caught red handed while accepting the bribe amount. Initially, the
case was investigated by Mr. Lawrence, Inspector of Police and owing to some
administrative reasons, the Superintendent of Police, Central Bureau of
Investigation, Anti Corruption Branch, Chennai filed petition dated 22.9.2007
under Section 17 of the Prevention of Corruption Act, 1988 (in short, 'the
Act') before the Court of Special Judge CBI cases, Madurai seeking permission
for investigation of the case by Shri G.A. Suriya Kumar, Sub-Inspector of
Police, instead of Mr. Lawrence, Inspector of Police.
The Special Judge for CBI cases, Madurai vide order
dated 24.09.2009 allowed the aforesaid petition permitting G.A. Suriya Kumar,
Sub-Inspector of Police to investigate the case. After completion of
investigation, charge sheet dated 01.12.2009 was filed in the Court of Special
Sessions Judge for CBI cases, Madurai and the Court took cognizance and
assigned it CC No.7/2009.
During the course of trial, the respondent moved
the High Court preferring criminal original petition under section 482 of
Criminal Procedure Code (in short, 'Cr.P.C.') to quash the entire proceedings
in CC No.7/2009 on the ground that there is correction in the FIR and sanction
was not accorded by proper authority. Respondent also preferred another
petition to call for the records and to quash the order dated 24.09.2009 passed
by the Special Judge, Madurai in Crl. M.P. No.549 of 2009 permitting Shri GA
Suriya Kumar, Sub-Inspector of Police to investigate the case.
The High Court vide its impugned order dated
5.7.2013 set aside aforesaid order of the Trial Court on the ground that
Section 17 of the Act provides that if the officer not below the rank of
Inspector of Police is authorized by the Government, such officer can
investigate the case without the permission of the Court. There is no specific
provision in Section 17 of the Act that the Sub-Inspector of Police is also
empowered to investigate the case with the permission of the Court. The High
Court further observed that the Special Court without assigning any reason in the
order permitted the Sub-Inspector of Police to investigate the matter and the
same is not in accordance with law.
Aggrieved by
the order passed by the Madras High Court, appeals by special leave were
preferred by the Union of India as well as the State.
Mr. K. Radhakrishnan, learned senior counsel
appearing for the appellant contended that the High Court has failed to
appreciate that Special Judge granted permission to aforesaid Sub-Inspector of
Police, CBI, Chennai to investigate the case and after completion of the
investigation, charge sheet was filed and cognizance was taken. He contended
that the Madras High Court had interpreted Section 17 of the Act erroneously. The
provisions of Section 17(a) of the Act prescribe that without the permission of
the Court, the investigation of the case below the rank of Inspector of Police
shall not be done. But in this case, the investigation was done with the order
of the Court. Mr. K. Radhakrishnan further submitted that by virtue of Section
5(3) of the Delhi Special Police Establishment Act , any member of the Delhi
Special Police Establishment of or above the rank of Sub-Inspector is made
officer- in-charge of police station and, therefore, they have the power to
investigate into the offences mentioned in the notification under Section 3 of
the Act within their respective limits and they can exercise all the functions
of the Officer-in-charge of the police station.
Per contra, the respondent contended that criminal
prosecution was initiated on a complaint given by the Secretary of Rajapalayam
Town Co-operative Housing Society, Rajapalayam relating to an enquiry in
connection with evasion of payment of income tax for the house building owned
by him. However, investigation has been conducted without prior sanction of the
competent authority as required under Section 19 of the Act. In the present
case, sanction had been given by Commissioner of Income Tax after completion of
investigation.
It was contended that the powers of the High Court
under Section 482 is wide and full enough to interfere in this case where the
lower court made investigation without proper sanction as is mandated under
Section 19 of the Act and also where investigation is done by a person below
the rank of Inspector of Police as mandated under Section 17 of the Act. It was
further submitted by the respondent that the Court has no power to grant
permission to police officer below the rank of Inspector of Police, without any
specific or general order of the Government to that effect for such an officer.
It was further submitted by the counsel appearing for the respondent that the
accused has all justification in challenging the faulty procedure in
investigation. Since provisions of Section 17 and 19 are held mandatory, once
protections under the Act are taken away, public servants cannot carry out
their public duties without fear or fervor.
While setting aside order of the trial court, the
High Court has observed that reading of Section 17 of the Act discloses that if
the Officer not below the rank of the Inspector of Police is authorized by the
Government, such officer can investigate the case without permission of the
Court.
The Court thereafter proceeded to answer the question
involved in the case, namely, whether the order passed by the Magistrate
permitting the Sub- Inspector, CBI, Chennai to investigate the matter can be
sustained in law. The only ground taken by the respondent in the quashing
petition before High Court was that as per the provisions of Section 17 of
Prevention of Corruption Act, 1988, no officer below the rank of Inspector of
Police is authorized by the Government to investigate the case without
permission of the Court. Further, Section 17 does not confer any power to the
Court to grant permission to Sub-Inspector of Police to investigate the case.
Hence, order passed by the Magistrate permitting the Sub-Inspector of Police to
investigate the case is without jurisdiction and against the mandatory
provisions of Section 172 of the Act as well as Article 21 of the
Constitution of India.
The Court referring to Section 17 of the Act held: “It is clear that in the case of
investigation under the Delhi Special Police Establishment Act, an officer
below the rank of Inspector cannot investigate without the order of a competent
Magistrate. In the present case, order of the Special Judge was obtained by
filing an application. That order dated 24.9.2009 shows that it was passed on
request and in the interest of justice, investigation pursuant to such order
did not suffer from want of jurisdiction and hence, in the facts of the case,
the High Court erred in law in interfering with such investigation more so when
it was already completed.”
The Bench said that the question raised by the
respondent is well answered by this Court in a number of decisions rendered in
a different perspective. The matter of investigation by an officer not
authorized by law has been held to be irregular. Indisputably, by the order of
the Magistrate investigation was conducted by Sub-Inspector, CBI who, after
completion of investigation, submitted charge-sheet. It was only during the
trial, objection was raised by the Respondent that the order passed by the Magistrate
permitting Sub- Inspector, CBI to investigate is without jurisdiction.
Consequently, the investigation conducted by the officer is vitiated in law. “Curiously enough the respondent has not
made out a case that by reason of investigation conducted by the Sub-Inspector
a serious prejudice and miscarriage of justice has been caused. It is well
settled that invalidity of investigation does not vitiate the result unless a
miscarriage of justice has been caused thereby”, said the Bench.
The Court relied on the dictum laid down in the case
of State of Haryana vs. Bhajan Lal3,
wherein the Apex Court while considering Section 5A of the Act, had held as under:
"125. It has been ruled by this Court in several decisions that
Section 5-A of the Act is mandatory and not directory and the investigation
conducted in violation thereof bears the stamp of illegality but that
illegality committed in the course of an investigation does not affect the
competence and the jurisdiction of the court for trial and where the cognizance
of the case has in fact been taken and the case is proceeded to termination,
the invalidity of the preceding investigation does not vitiate the result
unless miscarriage of justice has been caused thereby.
See (1) H.N. Rishbud and Inder Singh v. State of Delhi (AIR 1955 SC
196);
(2) Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195;
(3) Munna Lal v. State of Uttar Pradesh, ((1964) 3 SCR 88;
(4) S.N. Bose v. State of Bihar, (1968) 3 SCR 563;
(5) Muni Lal v. Delhi Administration, 1971 (2) SCC 48,
6) Khandu Sonu Dhobi v. State of Maharashtra, 1972 (3) SCR 510.
However, in Rishbud [pic]case and Muni Lal case, it has been ruled that
if any breach of the said mandatory proviso relating to investigation 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 as may be called for to rectify the illegality and cure the
defects in the investigation."
The Court thereafter referred to the case of A.C. Sharma vs. Delhi Admn.4,
where the provisions of Section 5A were
again considered by the Apex Court and wherein it was held as under:
"15. As the foregoing
discussion shows the investigation in the present case by the Deputy
Superintendent of Police cannot be considered to be in any way unauthorised or
contrary to law. In this connection it may not be out of place also to point
out that the function of investigation is merely to collect evidence and any
irregularity or even illegality in the course of collection of evidence can
scarcely be considered by itself to affect the legality of the trial by an
otherwise competent court of the offence so investigated.
In H.N. Rishabud and Inder Singh v. State of Delhi (supra) it was held
that an illegality committed in the course of investigation does not affect the
competence and jurisdiction of the court for trial and where cognizance of the
case has in fact been taken and the case has proceeded to termination of the
invalidity of the preceding investigation does not vitiate the result unless
miscarriage of justice has been caused thereby.
When any breach of the mandatory provisions relating to investigation 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 5-A of the Prevention of Corruption Act, 1952.
This decision was followed in Munna Lal v. State of U.P where the
decision in State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707 was
distinguished. The same view was taken in the State of Andhra Pradesh v. M.
Venugopal, 1964 (3) SCR 742 and more recently in Khandu Sonu Dhobi v. State of
Maharashtra (supra). The decisions of the Calcutta, Punjab and Saurashtra High
Courts relied upon by Mr Anthony deal with different points: in any event to
the extent they contain any observations against the view expressed by this
Court in the decisions just cited those observations cannot be considered good
law."
The Bench observed that on the basis of the
permission accorded by the Magistrate, the Sub-Inspector, CBI proceeded with
the investigation and finally submitted charge-sheet. It was only after that,
said order of Magistrate was questioned by the Respondent by filing a criminal
petition in the High Court. The learned Single Judge, appreciating the
submission made by the learned counsel, held that since the special court
without assigning any reason permitted Sub-Inspector of Police to investigate
the matter, the order is not in accordance with law and disposed of the
petition giving liberty to the prosecution to file a fresh petition before the
court seeking permission to get the matter investigated by a competent officer.
The Court accordingly opined that the High Court
erred in overlooking the gist of order of Special Judge permitting the
Sub-Inspector to investigate, and held that having regard to the fact that no
case of prejudice or miscarriage of justice by reason of investigation by the
Sub-Inspector of Police is made out, the order of the High Court cannot be
sustained in law.
Accordingly, the Apex Court allowed the appeals and
set aside the order passed by the High Court.
_______________
1. Criminal Appeal Nos.
.....................of 2014 arising out of Special Leave Petition (CRL.)
Nos.2521-2522 of 2014
2. "17. Persons
authorised to investigate.- Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,-
(a) in the case of the Delhi Special Police
Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta,
Madras and Ahmedabad and in any other metropolitan area notified as such under
sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of
1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police
or a police officer of equivalent rank, shall investigate any offence
punishable under this Act without the order of a Metropolitan Magistrate or a
Magistrate of the first class, as the case may be, or make any arrest therefor
without a warrant:
Provided that if a police officer not below the
rank of an Inspector of Police is authorised by the State Government in this
behalf by general or special order, he may also investigate any such offence
without the order of a Metropolitan Magistrate or a Magistrate of the first
class, as the case may be, or make arrest there for without a warrant: Provided
further that an offence referred to in clause (e) of sub-section (1) of section
13 shall not be investigated without the order of a police officer not below
the rank of a Superintendent of Police."
3. AIR 1992 SC 604
4. (1973)
1 SCC 726
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