JUDGMENT 1. - Challenge in this appeal is to the orders dated 12th May, 2009 and 6th November, 2009 rendered by the learned Judicial Magistrate, No.1, Sikar and learned Additional Sessions Judge, No.2, Sikar respectively, whereby the learned trial court ordered to frame charge against the accused petitioner Noranglal for the offence under Section 4 of the Indecent Representation of Women (Prohibition) Act, 1986 (hereinafter referred to as the 'Act, 1986') and the same confirmed by the learned Appellate Court. 2. Heard learned counsel for the petitioner as also the learned Public Prosecutor appearing for the State and carefully perused the impugned orders rendered by the courts below. 3. Learned counsel for the petitioner took me through Section 5 of the 'Act, 1986' and contended that only a gazetted officer, authorised by the State Government was required to enter and search the place or places and seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing painting, photograph, representation or figure in any case, registered at the concerned police station. In the instant case, the search has been taken by the Sub-Inspector, and the articles also are found to have been seized by Sub-Inspector, Vijay Singh of police station Kotwali, Sikar, who was not authorised to do so. In support of his arguments, he has cited the decision of this High Court given in the case of Abdul Hafiz & Ors. v. State of Rajasthan reported in 1998 (2) RCC 693 .Section 5 of the Act, 1986 envisages as under : "5. Powers to enter and search. In support of his arguments, he has cited the decision of this High Court given in the case of Abdul Hafiz & Ors. v. State of Rajasthan reported in 1998 (2) RCC 693 .Section 5 of the Act, 1986 envisages as under : "5. Powers to enter and search. - (1) Subject to such rules as may be prescribed, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised:- (a) enter and search at all reasonable times, with such assistance, if any , as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed; (b) seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act; (c) examine any record, register, document or any other material object found in any place mentioned in Clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act. Provided that no entry under this sub-section shall be made into a private dwelling-house without a warrant : Provided further that the power of seizure under this sub-section may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof." 4. From a bare perusal of the provisions of Section 5 of the 'Act, 1986', it is clear that the search and seizure of any advertisement or book, pamphlet etc. as enumerated in the Section 5 can be made only by Gazetted Officer authorised by the State Government within the local limits of the area for which he is so authorized. In the instant petition, 10 books showing nude photographs of women, 13 photographs of sex models, pamphlets displaying a man and woman in a compromising position and other nude pictures are found to have been seized by Mr. In the instant petition, 10 books showing nude photographs of women, 13 photographs of sex models, pamphlets displaying a man and woman in a compromising position and other nude pictures are found to have been seized by Mr. Vijay Singh, Sub-Inspector, who was not a gazetted officer at the relevant point of time, hence, the entire act of seizure is found to have been performed by an officer without jurisdiction. 5. In the case of Abdul Hafiz & Ors. v. State of Rajasthan (supra) , this Court has held that : "10.It is true that an illegality or irregularity in conducting the investigation is not sufficient to quash the proceedings initiated by taking cognizance of the offence by the criminal court. But it does not mean that in no case the proceedings can be quashed, even if, any serious illegality or irregularity in the matter is brought to the notice of the Court. Having regard to the facts and circumstances of the case and the stage at which the matter is pending in the Court of learned Addl. Chief Judicial Magistrate, it will be just and proper to quash the proceedings initiated by taking cognizance of offence by the learned Addl. Chief Judicial Magistrate. The object behind sub-section 19 of the Section 203 of the Act is to ensure that the investigation must not be conducted by an officer of the rank not below the Dy. Supdt. of Police so that innocent persons may not be subjected to any harassment. 6. In H.N. Rishbud & Anr. v. State of Delhi, AIR 1955 Supreme Court 196 , the Hon'ble Supreme Court considered the consequences of illegality committed during the investigation by the police. At page 203 of the AIR, His Lordship observed : "The question then requires to be considered whether and to what extent the trial which follows such investigatio is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly 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 trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. This is undoubtedly 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 trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has not 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, 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. Section 190, Criminal Procedure Code 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, (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, Criminal Procedure Code which is in the following terms is attracted...... If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provisions 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 mis-carriage of justice." 7. If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provisions 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 mis-carriage of justice." 7. It is further noticed that police, after completion of investigation, has filed the police report under Section 173(2) of Criminal Procedure Code, which has been pending trial before the learned Judicial Magistrate, Sikar. 8. Now, the crucial question springing for consideration in the instant case is as to what should be done by the Court when any defect or illegality is found to have been committed in the investigation and the same is brought before the Court? 9. This Court while adjudicating the case of Abdul Hafiz & Ors. v. State of Rajasthan (supra) relied upon the case of Prabhu v. Emperor, AIR 1944 PC 73 (C) and Lumbhardar Zutshi v. The King, AIR 1950 PC 26 (D) and observed thus:- "12. What should be done by a Court when any defect or illegality committed in the investigation is brought to his notice was also considered by their Lordships of the Apex Court. At page 204 of AIR, it was observed that : "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 cases 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 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 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 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. 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, Criminal Procedure Code 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." 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 cases 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. 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 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 investigation is conducted by the office in-charge of police station, it shows that the submission of a report under Section 173(2) of Criminal Procedure Code, after the completion of investigation must be by the Police Officer, who is competent to investigate the case. 11. Since, the act of seizure of nude photographs, films, pictures and other articles has been made by the unauthorized officer Vijay Singh Sub-Inspector of Police, without jurisdiction, the investigation as made deserves to be quashed in view of the provisions of Section 5 of the Act, 1986 and the judgment of this Court rendered in the case of Abdul Hafiz & Ors. v. State of Rajasthan (supra). 12. For the reasons stated above, the petition is allowed and the impugned order dated 6th November, 2009 passed by the Additional Sessions Judge, NO.2, Sikar and order dated 12th May, 2009 passed by the Judicial Magistrate, No.1, Sikar are set aside and the investigation made by the unauthorized police officer is quashed. 13. The learned Judicial Magistrate, No.1, Sikar is directed to pass an order afresh in view of Section 5 of the Act, 1986 and the observations made by this Court in the case of Abdul Hafiz & Ors. v. State of Rajasthan (supra) directing re-investigation of the case to be made by the Gazetted Officer authorised by the State Government who shall complete the investigation within a one month and submit police report before the court in accordance with the provisions of law.Petition allowed. *******