Research › Browse › Judgment

Patna High Court · body

1979 DIGILAW 292 (PAT)

Jiwachhlal Saraf v. State of Bihar

1979-12-21

MEDINI PRASAD SINGH

body1979
JUDGMENT : Medini Prasad Singh, J. 1. A trial being Special Case No. 12 of 1978 is pending before the Special Judge, C.B.I. Patna in Phulparas P.S. Case No. 30 dated September 30, 1973 initiated by one Subedar Singh. The petitioner Jiwachh Lall Saraf with six others are accused in that case. The main allegations against the accused are that they were exporting large quantities of Indian rice in the garb of Neal rice from Bihar to other States and in that connection they in conspiracy with each other committed various offences under Sections 120B, 419, 420, 465, 467, 468 and 471, Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 at Ghoghardiha railway station of the district Madhubani and other places. The Investigation of this case was taken over by the C.B.I. at the request of the Government of Bihar which admittedly gave consent to the members of the Delhi Special Police Establishment (briefly, the S.P.E.) to exercise powers and jurisdiction in the whole State of Bihar for investigation of the above offences by ORDER :No. 2328/C dated 24 July 1974 as required by Section 6 of the Delhi Special Police Establishment Act, 1946 (the Act, for short) it is not in doubt that the provisions of Sections 5 and 6 of the Act are mandatory and the S.P.E. cannot investigate any offence without complying with the provisions of Sections 5 and 6. Section 5 of the Act authorises the Central Government to extend to any area the powers and jurisdiction of the S P E for the investigation of any offence or classes of offences specified in a notification under Section 3 thereof. But Section 6 says that nothing contained in Section 5 shall be deemed to enable any member of the S P E to exercise powers and jurisdiction in any area in a State not being a Union Territory or railway area without the consent of the Government of that State. It is clear that any investigation conducted in violation thereof will be illegal. The point to be noted, however, is as I will presently show that cognizance taken or the trial held by the Special Judge on the basis thereof cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation. Mr. The point to be noted, however, is as I will presently show that cognizance taken or the trial held by the Special Judge on the basis thereof cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation. Mr. Desraj the Superintendent of the S.P.E. investigated the case. During the course of investigation he examined three witnesses at Gorakhpur and a few witnesses in Kerala. He submitted charge-sheet against the seven accused. Cognizance of the case was taken by the Special Judge on April 22, 1978 and ORDER :for issue of summonses to the accused for their appearance was passed on that very day. Charges were framed against the accused under various penal sections on May 2, 1979. Witnesses were summoned for evidence fixing 6.7.1979 and 7.7.1979 for hearing and, in fact, the prosecution witnesses did come but the accused persons filed several petitions on those dates and also on 4.8.1979 contending that the investigation conducted by the S P E was illegal for want of "consent ORDER :" of the State Government and so the continuance of the criminal proceeding was bad in law and the accused should be discharged. Mr. A.K. Sinha the Special Judge did not find merit in the contention and rejected all the three petitions of the accused by his ORDER :dated 7 August 1979. Hence this application. 2. The Government of India specified the offences and classes of offences to be investigated in a Notification No. 7/55/AVD dated 6.11.1956 issued under Section 3 of the Act: vide Annexure--3 to the counter-affidavit. The prosecution further filed a letter issued by the Government of India No. 6/45/56-AVD, dated 6.11.1956 requesting all the State Government to give fresh consent for the functioning of the S P E in view of the reorganisation of the States: Vide Annexure-A to the counter affidavit. The prosecution further filed a letter issued by the Government of India No. 6/45/56-AVD, dated 6.11.1956 requesting all the State Government to give fresh consent for the functioning of the S P E in view of the reorganisation of the States: Vide Annexure-A to the counter affidavit. The prosecution has also filed the consent ORDER :of the Government of Uttar Pradesh No. 453/VIII-483/56 dated Lucknow, February 19, 1957 issued by the Deputy Secretary to Government; Uttar Pradesh to the Secretary to the Government of India, Ministry of Home Affairs for functioning of the S P E in that State Vide Annexure C to the counter-affidavit and also, the consent ORDER :of the Government of Kerala No. H2-38582/56/Home dated Trivandrum, 14.12.1956 issued by the Assistant Secretary acting for the Chief Secretary to the Undersecretary to the Government of India, Ministry of Home Affairs for the functioning of the S.P.E. In that State, vide Annexure--D to the counter affidavit, Annexure--C which is the consent ORDER :of the Government of Uttar Pradesh runs as under:-- No. 453/VIII-483/56. From Shri Altaf Hussain, Deputy Secretary to Government; Uttar Pradesh. To The Secretary to the Government of India, Ministry of Home Affairs, Home Department (Police-A) Dated, Lucknow, February 19, 1957. Sub:--Sanction for the functioning of the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946. Sir, In continuation of this Governments letter No. 2 C I/VIII-483/50 dated the January 14, 1957, on the above subject, I am directed to say that the State Government have no objection to the functioning of the Delhi Special Police Establishment in this State in respect of offences punishable under sections of the Act specified in the Ministry's Notification No. 7/5/55-AVD, dated November 6, 1956. Sd. A. Hussain, Dy. Secretary. Annexure-D which is the consent ORDER :of the Government of Kerala runs as under:-- Government of Kerala Home (A) Department. No. H 2-38582/56/Home dated Trivandrum 14.12.1956. From The Chief Secretary. To The Under Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi-2. Sir, Sub:--Functioning of the Delhi Special Police Establishment consent grant of. Reg:--Your letter No. 6/45-55-AVD dated 6.11.1956. I am directed to state that the Government of Kerala accord their consent for the members of the Delhi Special Police Establishment exercising powers and jurisdiction within the Kerala State in respect of the matters specified in the Notification received with the letter cited. Reg:--Your letter No. 6/45-55-AVD dated 6.11.1956. I am directed to state that the Government of Kerala accord their consent for the members of the Delhi Special Police Establishment exercising powers and jurisdiction within the Kerala State in respect of the matters specified in the Notification received with the letter cited. The said notification is being republished in the Government Gazette. Yours faithfully, Sd/- Assistant Secretary for Chief Secretary. 3. Mr. S.B. Sanyal appearing for the petitioner challenged the validity of the investigation conducted by the SPE in Uttar Pradesh and Kerala and contended that it was illegal because it had not obtained the requisite consent of the Government of Uttar Pradesh or of the Government of Kerala under Section 6 of the Act and under Entry 80 of List I of the VII Schedule of the Constitution and this made entire investigation illegal and it has prejudiced the entire case of the accused and hence the continuance of the entire criminal proceeding from the stage of taking cognizance was illegal and without jurisdiction. In continuation of this argument it was urged that the letters Annexures-C and D did not establish the fact that the requisite permission was given by the Uttar Pradesh Government or Kerala Government, they not being in the form and manner as required by Article 166 of the Constitution. On the other hand, Mr. Pandey appearing for the CBI contended that the entire investigation by the SPE was legal and that in any view of the matter it could not affect the cognizance of the offences taken by the Special Judge. Relying on the principles laid down in (1) Major Barsay's case, AIR 1961 SC 1762 and the case of (2) N. Konappa V. Delhi Special Police Establishment Bangalore (1974) M.I.J. (Cri) 527 be further contended that any way the letters Annexures C and D amounted to proper compliance of Section 6 of the Act and of the Entry 80 List I of VII Schedule to the Constitution, it was also said that after obtaining the consent of the Bihar Government, the Investigating Office of the CBI had all the powers of the Officer Incharge of Phulparas P.S. under Section 5 of the Act and in exercise of those powers he could go to Uttar Pradesh and Kerala to examine the witnesses. It was pointed out by him that the requisite permission of the State Government is to be obtained only for the purpose of starting the investigation and not where the investigation has already been started validly and legally in which situation no restriction can be put on the investigating agency to pursue the crime. In the view which I take I do not think it necessary to express any opinion on the points as to whether or not the consent ORDER :s of the Uttar Pradesh Government and Kerala Government expressed in Annexures C and D respectively fulfil the requirements of Article 166 of the Constitution nor do I think necessary to decide the point whether the small portion of the investigation done by the S P E in Uttar Pradesh and Kerala is illegal although I must say that prima facie the contentions of Mr. Pandey cannot be said to be devoid of force. It is not, therefore, necessary to refer to the authorities cited by the parties on that point. Mr. Sanyal has also referred to the decision in (3) Management of the Advance insurance Co. Ltd. V. Gurudasmal, AIR 1969 Delhi 330 but that case also is of no assistance to him for the point on which I am disposing of this case. It is not, therefore, necessary to discuss it. 4. In the instant case I will proceed on the footing that the small portion of the investigation conducted by the SPE in Uttar Pradesh and Kerala was illegal but even in that view of the matte I am of the opinion that illegality in investigation will not affect the cognizance of the offences taken by the Special Judge, CBI Patna. The controversy has been set at rest by the decision in (4) H.N. Rishbud V. State of Delhi, AIR 1956 SC 196: (1955) 1 SCR 1150 . In that case it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the court to take cognizance, that an invalid investigation does not nullify the cognizance or trial based thereon because a defect of illegality in investigation, however, serious had no direct bearing to the competence of the procedure relating to cognizance or trial. At page 204 it was lather observed: Such an invalid report may still fall either under Clauses (a) and (b) of Section 190(1), and in any case cognizance so taken is only in the nature of an error in a proceeding antecedent to the trial. To such a situation Section 537 Cr.P.C. is attracted. From the above it is clear that an invalid police report may be regarded as a complaint and the Magistrate can proceed with the case and that in any case cognizance taken on an invalid police report is only in the nature of an error in a proceeding antecedent to the trial and to such a situation Section 537 of the Code of Criminal Procedure was attracted. It was further held in that case that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the preceding investigation did not vitiate the result unless miscarriage of Justice had been caused hereby. However, it was observed: It does not follow that the validity of the investigation is to be completely ignored by a 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 in declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ORDER :ing such reinvestigation as the circumstances of an individual case may call for. When the breach of such a mandatory provision is brought to the knowledge of the court, at a sufficiently early stage, the Court, while in declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ORDER :ing such reinvestigation as the circumstances of an individual case may call for. This case, thus, is a clear authority for five things: (1) that a valid and legal police report is not necessarily the foundation of the jurisdiction of the court to take cognizance (ii) that a defect or illegality in investigation, however serious does not affect the competence and jurisdiction of the court for trial and cannot nullify the cognizance or trial (iii) that an invalid police report may be treated as a complaint under Section 190(1)(a) of the Code of Criminal Procedure, (iv) that in any case cognizance taken on an invalid police report is only in the nature of an error in the proceeding antecedent to the trial and to such a case Section 537 of the Code of Criminal Procedure is attracted and (v) that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the court, defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it (Now a new provision Section 173(8) has been introduced in the Code of Criminal Procedure, 1973 for making further investigation). Principles laid down in Rishbud's case (1955) SC. 196 (Supra) have never been challenged till today. Those principles have been followed in a number of cases. See the cases of (5) Munnalal V. State of Uttar Pradesh, (A.I.R. 1964 SC. 28). (6) State of Andhra Pradesh V. P.V. Narayana, (A.I.R. 1971 SC. 811). (7) State V. Malnabal, AIR 1962 Bom 202 , (8) Parasnath Pandey V. State, 1962 Bombay 205, (9) Tarak Nath Roy V. State of Bihar, 1979 BBCJ 61 . In Parasnath Pandey's case, AIR. 1962 Bom 205 (Supra) it was held that cognizance is not vitiated merely because there is illegality in the process of investigation, that the Special Judge can act on any material placed before him and he need not stop to consider whether the material placed before him has been collected in a legal way and through proper medium of an authorised person. It is true that in the case of Tarak Nath Roy (1979 B.B.C.J. 61 Supra) 30 witnesses had been examined at the trial and on that account the trial was not quashed on the ground of illegality of investigation but in my opinion, it makes no difference in principle. Even if no witness has been examined at the trial but cognizance has, in fact, been taken, the cognizance cannot be quashed simply on the ground of illegality in investigation. As observed in Emperor V. Nazir Ahmad, AIR 1945 SC. 18 : 71 Ind. App. 203 ....Court's functions begin when a charge is preferred before it and not until then. It may be noted that the power of a Special Judge to take cognizance is derived from Section 8 of the Criminal Law Amendment Act 1952 and not from the police report which is merely a type of material placed before him for his consideration. The act of taking cognizance is a judicial act and it can be undone only by a judicial act e.g. by the ORDER :of a superior court. It cannot be undone by illegal or improper act at the police officer. 5. Even prior to the decision in Rishbud's case ( AIR 1955 SC 196 , Supra) it had been held by the Privy Council that the illegality of arrest in the course of investigation did not affect the competence and the jurisdiction of the Court for trials see the cases of (10) Prabhu V. Emperor, AIR 1944 P.C. 73 and (11) Lumbhardar Zutshi V. King, AIR 1950 P.C. 26. These cases no doubt related to the illegality of arrest in the course of investigation whereas we are concerned in the instant case with the Illegality with reference to the (sic) machinery for the collection of evidence but nonetheless both of them clearly show that invalidity of the investigation has no relation to the competence of the Court. The principles, enunciated by the Privy Council in these two cases were approved and followed in Rishbud's case (Supra). 6. Mr. Sanyal appearing for the petitioner relied on Delhi Administration V. Ram Singh, AIR 1962 SC. 63 . But that cess is of no help to him. That was a case which arose under the Suppression of Immoral Traffic in Women and Girls Act, 1956. 6. Mr. Sanyal appearing for the petitioner relied on Delhi Administration V. Ram Singh, AIR 1962 SC. 63 . But that cess is of no help to him. That was a case which arose under the Suppression of Immoral Traffic in Women and Girls Act, 1956. In that case the offence was investigated not by a special police officer as required by that Act but by an ordinary Sub-Inspector of the regular police. After he submitted the charge sheet the Magistrate quashed the charge sheet from which a revision application was taken to the High Court which failed and an appeal to the Supreme Court also failed. It is clear that no cognizance had been taken in that case and the question of quashing the cognizance on the ground of illegality in investigation did not at all arise, the Magistrate had quashed the charge sheet itself, holding that the Special Police Officer alone was competent to investigate and the police officer who was neither a Special Police Officer under the Suppression of Immoral Traffic in Women and Girls Act, 1956 nor subordinate to the Special Police Officer could not have investigated it Counsel next relied on (12) State of Madhya Pradesh V. Mobarak Ali, AIR 1959 SC 707 : 1959 Supp-2 SCR 201 : 1959 Cri-L.J. 820. That case also does not help him. In that case investigation had been conducted in breach of Section 5A of the Prevention of Corruption Act; 1947. The matter went before the High Court and it directed that in ORDER :to rectify the defect and cure the illegality in investigation, the Special Judge should have ORDER :ed the Deputy Superintendent of Police to carry on the investigation himself while the case remained pending before him. That ORDER :of the High Court was brought in appeal to the Supreme Court and the appeal was dismissed. That case, therefore is of no assistance to the petitioner because even in that case the cognizance was not quashed. It cannot be denied that the Special Judge has power to ORDER :further investigation as may be required in the circumstances of the case. 7. In the present case the major part of the investigation conducted by the SPE in Bihar was undoubtedly legal and only a small portion of it done in Uttar Pradesh and Kerala is challenged to be illegal. 7. In the present case the major part of the investigation conducted by the SPE in Bihar was undoubtedly legal and only a small portion of it done in Uttar Pradesh and Kerala is challenged to be illegal. In such a situation, I think, it must be held that there has not been such defect in the Investigation so as to hold the entire investigation illegal. In any view of the matter the cognizance taken of the case cannot be said to be vitiated on the ground of illegality in investigation. Moreover it will at best be a case of incomplete police report. In (13) Tara Singh V. State ( 1951 SCR 729 ) the police first submitted a report as "an incomplete challan" which, however, contained all the particulars prescribed by Section 173 (1). Later; two supplemental challans were submitted containing the names of certain formal witnesses. The Magistrate had taken cognizance of the case when the incomplete challan was submitted. It was urged that the Magistrate had taken cognizance of the case illegally and the statements of witnesses examined before submission of the supplemental challans should be excluded from the record. The Supreme Court held that the so-called Incomplete challan was in fact a complete report of the kind contemplated by Section 173(1)(a), and, therefore, the Magistrate had properly taken cognizance of the case. From that view point also the present case is without any merit. 8. Mr. Sanyal submitted that prejudice has been caused to the petitioner on account of illegal investigation conducted by the C.B.I. In my opinion, the point has no force. I do not see how any prejudice has been caused to the accused. The C B I simply investigated the case. The accused is still to be tried by the special Judge. There is, therefore, no question of prejudice at this stage. It was submitted that the infraction of Section 6 of the Act and of the Constitutional bar of Entry 80 of List 1 of Schedule VII of the Constitution is itself prejudice to the accused. Reference was made to the case of (14) Manak Lal, Advocate V. Dr. Prem Chand Singhvi, AIR 1957 SC 485. In that case Manak Lal an Advocate of the High Court of Rajasthan was held guilty of professional misconduct by the Tribunal. Reference was made to the case of (14) Manak Lal, Advocate V. Dr. Prem Chand Singhvi, AIR 1957 SC 485. In that case Manak Lal an Advocate of the High Court of Rajasthan was held guilty of professional misconduct by the Tribunal. The High Court agreed with the finding of the Tribunal and directed Manak Lal, Advocate to be removed from practice. The matter was carried to the Supreme Court but the appeal was dismissed. In that case it was argued before the Supreme Court that one member of the Tribunal had bias against Manak Lal and hence the report of the Tribunal was vitiated. But it was pointed out by the Supreme Court that the appellant had not deliberately raised the objection to the constitution of the Tribunal on the ground of bias before the Tribunal at the early stage of the proceeding and this created an effective bar of waiver against him and he was precluded from raising it before the High Court for the first time, that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report he adopted the device of raising the present technical ground. That case, therefore, has no application to the facts of the present case. I do not see how that case can in any way help the petitioner in the instant case. I am of the view that there has been no failure of justice in this case. The contention, thus must be repelled. 9. Mr. Pandey appearing for the C.B.I. contended that the proceeding of a police officer cannot be called in question under Section 156 (2) of the Criminal Procedure Code. The point has no force. In the words of the Supreme Court in Rishbud's case (AIR. 1955 SC 196 Supra): What Sub-section (2) of Section 156 Criminal Procedure Code cures is investigation of an officer not empowered under that section, i.e., with reference to Sub-section (1) and (3) thereof. It is the violation of these provisions that is cured under Sub-section (2). Obviously Sub-section (2) of Section 156 cannot cure the violation of any specific statutory provision prohibiting investigation under a special Act. Therefore, this contention must be repelled. It is the violation of these provisions that is cured under Sub-section (2). Obviously Sub-section (2) of Section 156 cannot cure the violation of any specific statutory provision prohibiting investigation under a special Act. Therefore, this contention must be repelled. For the foregoing, however, my considered view is that the cognizance taken on 22nd April 1978 by the Special Judge, C B I, Patna was not illegal and it cannot, therefore, be quashed. The application is dismissed.