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1978 DIGILAW 206 (PAT)

Tarak Nath Roy v. State Of Bihar

1978-09-15

S.SHAMSUL HASAN

body1978
Judgment S. Shamsul Hasan, J. 1. The petitioner in this application prays for quashing of Special Case No.24/72, pending in the court of Mr. S. N. Verma, Special judge, Patna, arising out of a F. I. R. lodged on 1.1,69 by the Superintendent of Police, C. B. I. 2. The investigation in this case was all along conducted by the officers of the Delhi Special Police Establishment and charge-sheet was submitted by shri Amar Singh, Inspector of C. B. I. , S. P. E. , C. I. A. I. under section 120-B of the Indian Penal Code and under section 5 (2) read with section 5 (1) (c) (d) of the Prevention of Corruption Act, 1947, (hereinafter to be referred to as the 1947 Act) on 5.4.72, on the basis of which cognizance was taken and the case was fixed for hearing in the court of Shri S. N. Jha, where charges were framed under section 120-B of the Indian Penal Code, under section 5 (2)read with section 5 (i) (c) as also under section 5 (3) read with section 5 (i) (d) of the 147 Act. The allegations made by the prosecution against the petitioner are not material for disposal of this case. 3. The short point urged by learned counsel for the petitioner is that the investigating agency established under the Delhi Special Police Establishment act, 1946, (hereinafter to be referred to asthe 1946 Act) had no right to investigate this case because in terms of section 6 of that Act consent of the state Government was lacking and this investigation being illegal and without jurisdiction vitiates the trial. 4. The history of this legislation is relevant for the purpose of this case. In 1943 the Government of India set up a police staff called the Special Police establishment War Department under the Special Police Establishment (War department Ordinance No. XXII of 1943 for the purpose of investigating offences of bribery and corruption connected with the Department of the Central government. It was then decided to constitute this establishment on a psrmanent basis. Since Ordinance No. XXII of 1943 lapsed on 30th September, 1946, to avoid break in the continuity Ordinance No.22 of 1946 was promulgated on the 25th March, 1947. This present Act was erected to give permanency to the establishment. It was then decided to constitute this establishment on a psrmanent basis. Since Ordinance No. XXII of 1943 lapsed on 30th September, 1946, to avoid break in the continuity Ordinance No.22 of 1946 was promulgated on the 25th March, 1947. This present Act was erected to give permanency to the establishment. In clause 2 of Ordinance No 21 of 1943 it was provided that the Central Government will constitute a police force which will exercise powers and jurisdiction throughout British India similar to the one exercised in a province by members of the police force of the Province. Sec.5 of ordinance No. XXII of 1946 provides as follows : " (1) The Central Government may by order extend to any area (including railway areas) in British India outside the Chief Commissioners province of Delhi the powers and jurisdiction members of the delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the Delhi Special Police Establishment are extended to any such area, a member of that police establishment may subject to any orders which the Central Government may make in this behalf, discharge the function of a police officer in that area and shall, while so discharging such functions be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force". Sec.6 of the said Ordinance provides as under : "nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in British India outside the Chief Commissioners province of Delhi, not being a Railway area, without the consent- (a) in case such area is in a Governors Province, of the Government of that Province ; and (b) in case such area is in a Chief Commissioners Province, of the chief Commissioner. " It may be noted here that for the first time in 1946 ordinance requirement to seek consent of the Provincial Government was introduced. " It may be noted here that for the first time in 1946 ordinance requirement to seek consent of the Provincial Government was introduced. It appears from an order of the Government of India, Home Department, dated 1.10.46 being no.56/6/46-police, that the powers and jurisdiction of the members of the delhi special police establishment were extended to all provinces, excluding the province of Sind, for the investigation of the specified offences. I have also found in the record a notification dated 29.10.46 by which the Government of Bihar was pleased to direct that the Delhi Special Police Establishment ordinance No. XXII of 1946 would apply to Chota Nagpur Division and to the Santal Parganas district. I have not been able to find any paper nor has any paper been brought to my notice to indicate that the powers conferred under Ordinance No. XXII of 1946 were extended to the whole of the State. 5. Before promulgation of 1946 Act a communication was received from the Government of India, Home Department, being No.178/45-police, dated 9.5.46, to the effect that in view of the fact that Ordinance No. XXII of 1946 was to last only up to September, 1946, and since it was considered necessary that the special police force should continue to function even after that date, the Government of India has decided to introduce a fresh legislation under entry 3 in list II of the Seventh Schedule of the Government of India Act auj to extend the powers and jurisdiction of the members of the Delhi Special police Establishment to any area in another Chief Commissioners Province besides Delhi or in any Governors Province with the consent of the Chief commissioner or the Government of that Province, as the case may be. It further stated that before undertaking legislation on the subject the Government of India wanted to receive the views and consent of the Provincial Governments in this regard. In pursuance to the above communication the matter was considered the Political Department of the Government of Bihar and it resulted in a note by the Chief Secretary dated 27.5.46 in which he recommended that the Provincial Government may agree with the proposal of the Government of India. This was approved on 28.5.46 by the Prime Minister of the State. This note has been exhibited in the case and other allied cases. This was approved on 28.5.46 by the Prime Minister of the State. This note has been exhibited in the case and other allied cases. This note along with the earlier noting in the file is Annexure 1 to this petition. No other document in relation to consent has been brought to my notice except a letter sent by Shri K. B. Mandlekar, Under-Secretary to the Government of India, dated 6th November, 1956, being no.6/46-56-AVD, by which he states that in view of the recognisation of the States it was considered desirable that the State Government should accord fresh consent for the functioning of the Delhi Special Police Establishment within their respective States and a further request was made that the consent of the State Government may kindly be accorded at an early date. In reply to this a communication has bsen brought on the record from Shri C. R. Vaidyanathan, Under-Secretary to government of Bihar, Political Department (Police Branch), dated 29.1.57, being No.1/mi-1015-57 P, P.-664. It is stated in this letter as follows: "i am directed to refer to para 3 of letter No.6/45/56-AVD, dated the 6th November, 1956 from the Ministry of Home Affairs on the above subject and to communicate fresh consent of the State government to the functioning of the Special Police Establishment in bihar for the purposes of the Delhi Special Police Establishment. " This letter was also exhibited in the trial of this case and other allied cases. 6 It is on the basis of this letter that learned counsel for the respondents submitted that the consent of the State Government had been obtained in terms. of Son 6 of the 1946 Act. A mere reading of this letter shows that this letter is not a letter of consent but is merely communicating the fresh consent of the State Government to the functioning of the Delhi Special Police establishment in Bihar No order of the State Government was cither produced in the court below or brought to my notice in this court in spite of repeated opportunities given to the State for the purpose. Even the original file produced in court did not contain any order specifically issued by the State Government according consent. It was submitted by learned counsel for the respondents that the aforesaid acceptance of the proposal by the Prime Minister of Bihar on the notines of the Chief Secretary, Mr. Even the original file produced in court did not contain any order specifically issued by the State Government according consent. It was submitted by learned counsel for the respondents that the aforesaid acceptance of the proposal by the Prime Minister of Bihar on the notines of the Chief Secretary, Mr. Bowstead, amounts to a consent and no fresh order was necessary and further the communication of Mr. Vaidyanathan to the Government of India also amounted to a consent. 7. Learned counsel for the petitioner submitted and rightly that the order of then Prime Minister, Dr. Shri Krishna could not amount to a consent because that was a communication in regard to the letter of the Government of India seeking approval to the introduction of the 1946 Act and, therefore, it could not be termed as a consent within the Act In my view, it was incumbent upon the State Government to produce the order of consent passed by the government of Bihar is accordance with the Rules of Executive Business. Mr Vaidyanathan, who was examined at great length in the trial court has also not given any specific information in regard to having obtained consent of the State Government in due form. Prior to his examination in court he had filed an affidavit in which he stated that the consent of the Government was communicated by him to the Government of India by the aforesaid letter on 29 1.57 and had also stated that the expression "by order of the Governor of Bihar" was not used as it was neither necessary nor the practice to use such phraseology when the consent was communicated in a letter form. He had not however, stated in that affidavit or in his evidence the details of the socalled order of consent of the State Government. It seems that there is no order of the Government according consent specifically and the Under-Secretary merely under the misimpression issued the aforesaid communication, dated 29 1.57 and thought that a valid consent had been communicated. In this state of affairs I have no hesitation in holding that the consent in terms of section 6 of the 1946 has not been given or shown to have been given in this case. In this situation officers of the Delhi Special Police Establishment have no jurisdiction to investigate this case. 8. In this state of affairs I have no hesitation in holding that the consent in terms of section 6 of the 1946 has not been given or shown to have been given in this case. In this situation officers of the Delhi Special Police Establishment have no jurisdiction to investigate this case. 8. The next question to be determined is whether the investigation by an agency not authorised to do so will vitiate the entire trial. In my view, if cognizance is based on a police report, which is the result of an investigation without legal authority, the trial that follows from it cannot be vitiated unless it is shown that such an investigation has brought about miscarriage of justice. An illegality in course of an investigation does not, in my view, affect the jurisdiction or the competence of the court trying the case. It is "well-settled that if the attention of the court is drawn to the illegality at an early stage, it would not be right to perpetuate the illegality by allowing the trial to proceed and giving relief at the end of it, but such illegality will not affect the result of the trial unless it is shown that it has brought about miscarriage of justice. Sec.537 of the Code of Criminal Procedure, 1898, clearly applies to this situation, It is clear in this case that the court taking cognizance was fully empowered to do so. It has been held in //. N. Rishbud V/s. State of Delhi, ( AIR 1955 SC 196 at pp 203-205) as follows : "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 a investigation is provided in section 190, Criminal Procedure Code 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. Sec.190, criminal Procedure Code is one set 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. Sec.190, criminal Procedure Code is one set 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 full either under clause (a) or (b) of section 190 (i), 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, Criminal Procedure Code which is in the following terms is attracted. subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of 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 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. " If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of 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 effect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in Prabhu V/s. Emperor, AIR 1944 PC 73 and Laumbhardar Zutshi V/s. The King, AIR 1950 PC 26, 9 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. 10. 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 re-investigation as the circumstances of an individual case may call for:- Such a course is not altogether out side 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. 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 him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537, Criminal Procedure Code of making out that such an error has in fact occasioned a failure of justice". 11 In this case the fact; that the case had been investigated by an agency which was not empowered to do so and the charge-sheet was submitted by such an agency was pointed out after large number of witnesses had already been examined and it was for the first time on 16.7.74, after 29-30 witnesses had been examined, that a petition was filed by the petitioner to the effect that it appeared from the papers supplied so far by the prosecution and from inspection of the records that no order of sanction, as required under section 6 of the 1946 Act was given by the Government of Bihar and that went to the very root of the jurisdiction of the trial court. After the objection was raised, witnesses with regard to this objection were examined. Shri Vaidyanathans, evidence, which was recorded in cne of the allied cases, was brought on record of this case by an order of the court, It has, however, not been shown by the petitioner was to how miscarriage of justice occurred as a result of the investigation by an unauthorised agency. It has been stated in the petition that this petitioner has been made accused at a very late stage after several other persons had been proceeded against at the instance of the investigating officer, Amar Singh, was forcing this petitioner to become a witness in the allied cases. It has been stated in the petition that this petitioner has been made accused at a very late stage after several other persons had been proceeded against at the instance of the investigating officer, Amar Singh, was forcing this petitioner to become a witness in the allied cases. A series of investigations were being carried out in several cases, being Case No.7/69,8/69,9/69 and 11/69, and the petitioner was fully collaborating in these investigations because at the time of occurrence he was the personal Assistant to the Superintending Engineer (Works) Electric Works, circle I, and, was, in fact, cited as a prosecution witness in Special Case No.10/69. It is further stated that the accused that case was Shri Kailash Roy, who was successor-in-office of the petitioner at Gulzarbagh. This case was being investigated by Shri Amar Singh, Inspector of C. B. I. , S. P. E. , C. I. A. I. , who, during the course of investigation, asked this petitioner to give false evidence against Kailash Roy and it was on his refusal to do so that he has been made accused in case No.24/72. F. I. R. in this case was lodged by sri J. P. Sharma, S. P. , C. P. I. regarding the officers of Bhagalpur Electrical works Division the petitioner was not named as accused in that F. I. R. though gulzarbagh was included in the Bhagalpur Division to which this case related. Investigation of this case was taken up by Sri Amar Singh, who eventually included this petitioner in the charge-sheet submitted on 5. .72, These facts, in my view, even if they are true, only indicate that he has been falsely implicated by the investigating officer. This does not in any way show any prejudice or failure of justice caused by any process of illegal ivestigation. It is also clear that although this happened in 1972, this fact is being stated for the first time after a very considerable period has elapsed. In fact, in the petition dated 16.7.74 the facts that have been stated in the petition in the court have not been stated in that petition filed in the court below. In fact, nothing has been shown in that petition to indicate as to what prejudicehas been caused to the petitioner and how failure of justice has been occasioned. In fact, in the petition dated 16.7.74 the facts that have been stated in the petition in the court have not been stated in that petition filed in the court below. In fact, nothing has been shown in that petition to indicate as to what prejudicehas been caused to the petitioner and how failure of justice has been occasioned. In this view of the matter, although the case was investigated by an agency, which had no authority to investigate the matter in view of the absence of consent under section 6 of 1946 Act, there is no ground for quashing the trial based on such an investigation. In the result, the application is dismissed. Application dismissed.