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2011 DIGILAW 326 (JK)

Ghulam Hassan Khan v. State & Ors.

2011-06-10

Hasnain Massodi

body2011
1. Whether investigation of an offence by a Police Officer not authorised to investigate such offence would be fatal to the prosecution initiated on such investigation, is the question that calls for an answer in the present petition. To understand the controversy, it would be advantageous to take an overview of the background facts. 2. The Vigilance Organization some time before 18.11.2002 received a written complaint from one Sh. Ghulam Qadir Bhat resident of Wanbal Rawalpora Srinagar, alleging that Secretary Jammu and Kashmir Sports Council, Director Youth Services and Sports Jammu and Kashmir government, and Chief Sports Officer, Youth Services and Sports in connivance with Dr. Ghulam Hassan Khan-petitioner herein, Miss. Lahoot Hassan daughter of the petitioner and respondent No. 2 Mr. N. Damadharan-Joint Honorary Secretary Table Tennis, Federation, New Delhi-respondent No. 3 forged a Sports Proficiency Certificate in favour of Miss. Lahoot Hassan enabling her to get admission in MBBS Course in the year 1991, on the strength Certificate so forged. It was alleged that the officers of the Sports Council and Youth Services and Sports Department had pursuant to the criminal conspiracy so hatched conferred illegal and undue benefit-on Miss Lahoot Hassan and committed criminal misconduct within the meaning of Section 5(2) Prevention of Corruption Act, 2007 Svt. (1949-AD). The information prompted Police Station Vigilance Organisation Kashmir to register case FIR No. 15 of 1996 under Section 5(2) Prevention of Corruption Act read with section 420,468,471 RPC. The Investigating Officer did not find involvement of the officers and officials of Jammu and Kashmir Sports Council, and Youth Services and Sports Department in the matter. The material collected during the investigation, however, revealed that the petitioner and respondents 2 and 3 hatched a criminal conspiracy to forge a Sports Proficiency Certificate in favour of respondent No 2 Miss. Lahoot Hassan, used the certificate so forged as genuine and cheated the authorities to make possible admission of Miss. Lahoot Hassan in MBBS Course, Session 1990-1991. The investigation was concluded as proved against the petitioner and respondents 2 and 3 and Charge-sheet alleging commission of offence punishable under Section 420, 468, 471 RPC read with 120(B) RPC presented in the Court of Chief Judicial Magistrate Srinagar. 3. Lahoot Hassan in MBBS Course, Session 1990-1991. The investigation was concluded as proved against the petitioner and respondents 2 and 3 and Charge-sheet alleging commission of offence punishable under Section 420, 468, 471 RPC read with 120(B) RPC presented in the Court of Chief Judicial Magistrate Srinagar. 3. The Chief Judicial Magistrate Srinagar on 29.07.2004 rejecting the contention of the petitioner and respondent No. 2 that the Charge sheet was liable to be dismissed in as mush as Police Station VOK lacked jurisdiction to investigate the matter held the material submitted with the Charge-sheet to prima-facie disclose commission of offence alleged in Charge-sheet and formally charged the petitioner and the respondent No. 2 of offences punishable under Section 420, 468, 471 RPC read with 120-B RPC. The petitioner/accused No. 3 passed away before the order dated 29th July 2004 was made. 4. The trial court order dated 29.07.2004, is assailed in the present petition under Section 561-A Cr. P.C/ 44 of 1993 on the grounds that the Charge-sheet was liable to be dismissed, in as much as Police Station Vigilance Organization Kashmir lacked jurisdiction to investigate the matter, much less present the Charge-sheet before the trial Court. It is insisted that Police Station Vigilance Organisation Kashmir in terms of Section 10 Prevention of Corruption Act, is competent to investigate the offence detailed in Section 5 of Prevention of Corruption Act. It is pleaded that in terms of Section, 3, 5, 10 and 12 the offence punishable under section 420, 468, 471 read with Section 120(b) RPC, fall outside jurisdiction of Police Station Vigilance Organisation Kashmir and cannot be investigated by the said Police Station. It is insisted that once the investigation itself is without jurisdiction, the outcome of the investigation is of no legal consequence and the charge sheet emanating there from not maintainable. 5. The petitioner's case is that the trial court though informed that the investigation was incompetent and Charge-sheet liable to be dismissed, rejected the contention on erroneous grounds and proceeded to formally charge the petitioner and the respondent No. 2 of the offences alleged in the charge sheet. 5. The petitioner's case is that the trial court though informed that the investigation was incompetent and Charge-sheet liable to be dismissed, rejected the contention on erroneous grounds and proceeded to formally charge the petitioner and the respondent No. 2 of the offences alleged in the charge sheet. It is next pleaded that as the respondent/accused No. 3 had issued the certificate in question in discharge of his official duties as an officer of Government of India, the Charge-sheet against the respondent/ accused No. 3 could not be presented in absence of sanction for prosecution required under Section 197 Criminal Procedure Code. It is pointed out that once the Charge-sheet was not maintainable against the respondent/accused No. 3 in absence of the sanction from the Competent Authority, the offence alleged against the petitioner and respondent being one of the criminal conspiracy, the Charge-sheet was not also maintainable against the petitioner and respondent No. 2. The trial Court, it is insisted did not appreciate the argument advanced in this behalf by the defence counsel in its right perspective and rejected the case set up without any justifiable reason. 6. Heard and considered. 7. The Code of Criminal Procedure lays down procedure for investigation inquiry, trial of the offences under Ranbir Penal Code as also offences under other laws for the time being in force. However, in case of offences under other laws procedure, if any laid down for investigation, inquiry and trial down under such laws is to govern investigation to the extent procedure is so laid down and in respect of left out matters Code of Procedure is to govern the procedure for investigation, inquiry or trial. 8. The Prevention of Corruption Act Svt. 2006, intended to make effective provisions for the prevention of bribery and corruption in the State makes offence of criminal misconduct by a public servant as defined under Section 5 (1) and 1(A), publishable under Section 5 (2) of the Act. Section 10 of the Act empowers the Government to establish an Organisation for investigation of the offences under the Act under the name of "Vigilance Organisation". In terms of Section 7, Jammu and Kashmir Criminal Law (Amendment Act) 1958 offence punishable under Section 5 (2) Prevention of Corruption Act 2006 as also offence punishable under Section 161, 165, 165-A are triable by a Special Judge. In terms of Section 7, Jammu and Kashmir Criminal Law (Amendment Act) 1958 offence punishable under Section 5 (2) Prevention of Corruption Act 2006 as also offence punishable under Section 161, 165, 165-A are triable by a Special Judge. The State Government vide SRO dated 92 dated 4th March 1963 in exercise of powers conferred by Section 2-A of the Prevention of Corruption Act Svt. 2006 set up an Anti-Corruption Organisation for the investigation of offences under the Act. This was followed by SRO 229 dated April 23rd 1976 whereby Anti-Corruption Organisation offences at Jammu and Kashmir were declared to be Police Stations respectively for Jammu and Kashmir Division for the cases triable under the Act and the Jammu and Kashmir Criminal law Amendment Act 1958. The provisions of Code of Criminal Procedure in terms of SRO 229 are to apply to the investigation of offences under the Act. It is thus clear that the Police Station Vigilance Organisation Kashmir and Police Station Vigilance Organisation Jammu are competent to investigate an offence punishable under Section 5(2) Prevention of Corruption Act and Ss. 161, 165 and 165-A Ranbir Penal Code and while conducting investigation follow provisions of Code of Criminal Procedure. Conversely the Police Stations vigilance organization are not authorised to investigate any offence other than aforementioned offences. 9. In the present case Police Station Vigilance Organisation has investigated offences punishable under Section 420, 468, 47-A read with 120(b) Ranbir Penal Code, the investigation whereof admittedly does not fall within jurisdiction of Police Station Vigilance Organisation Kashmir. The Police Station Vigilance Organisation Kashmir, has concluded the investigation and even presented Charge-sheet in the Court of Chief Judicial Magistrate Srinagar, cognizance whereof stands taken by the Court and the accused even formally charged of the offences alleged in the Charge-sheet. The investigation thus has been conducted by a police station that was not competent to investigate the matter. What is its fall out on the case is required to be seen. 10. The transition from individual to family and family to State brought with it better appreciation and understanding of the responsibility of the state to prevent and punish crime. The investigation thus has been conducted by a police station that was not competent to investigate the matter. What is its fall out on the case is required to be seen. 10. The transition from individual to family and family to State brought with it better appreciation and understanding of the responsibility of the state to prevent and punish crime. The State conscious that it would be beyond resources of an individual to gather evidence, employ investigation shills and bring a criminal to justice, took upon itself responsibility, not only to set up an independent institution to try and punish the offender but also to constitute agencies/institutions to investigate the offences and prosecute the offenders. 11. Section 156 Cr. P.C authorizes a police officer to investigate any cognizable case within limits of its jurisdiction without an order of a Magistrate. Chapter SIV delineates the procedure to be followed by the officer empowered to investigate the case. The investigation involves all the proceedings under the Code for the collection of evidence. The investigation in other words consists in assortment of the facts, the Investigating Officer is to unearth and dig out true facts, where-ever necessary with the aid of modern scientific tools and to conclude whether there is any substance in the allegation leveled. The Investigation Officer thus assumes role of first Judge in a criminal case. The object of investigation is not only to collect the evidence that it may not be possible for the complainant or aggrieved to lay hands on, but also to weed out the matters at the very outset that on investigation are found to be devoid of any substance and send for trial only such cases where there is prima facie, sufficient material to connect the accused with the alleged occurrence. 12. Having regard to the pivotal role, the investigation has to play in criminal justice system, the focus is not to be on the jurisdiction or authority of the Police Officer who investigates the matter but on the material collected during the investigation. In case the material collected during investigation prima facie establishes commission of an offence, the material so gathered cannot be disregarded and the effort made, allowed to go waste only because the Investigating Officer was not authorised to investigate the matter and that the case ought to have been investigated by some other police officer. In case the material collected during investigation prima facie establishes commission of an offence, the material so gathered cannot be disregarded and the effort made, allowed to go waste only because the Investigating Officer was not authorised to investigate the matter and that the case ought to have been investigated by some other police officer. In other words the accused cannot be allowed to go off the hook despite evidence regarding his involvement in a crime, merely because the Investigating Officer for one or other reason lacked authority to investigate the matter. 13. The Supreme Court in H. N. Rishbudh and another versus State of Delhi AIR 1955 SC 196 commenting upon fallout of defective investigation on criminal proceedings, emanating therefrom held: "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 profiled 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 section 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 except in compliance therewith But Section 190 does not. While no doubt, in one sense, Clause (a), (b) and (c) of Section 190 (I) 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 (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. Such an invalid report may still fall 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. The Court further observed; 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." 14. The law on the subject has been reiterated in Ambika Prasad & anr Vs. State (2000) 2 SCC 646 , State of MPA and others Vs. Ram Singh (2000) 5 SCC 88 and followed in Habib-Ullah Reshi (Trali) Vs. State of Jammu and Kashmir 2001 SLJ page 168 and State of Jammu and Kashmir and Others Vs. Abdul Rashid Zargar 2009 (1) SLJ 210. 15. In view of settled legal position there is no merit in the case set up by the petitioner to seek quashment of trial Court order dated 29.07.2004 and proceedings pending before the trial Court, more so, when initially the case registered with VOK was one under Section 5(2) Prevention of Corruption Act, 2006 and on investigation found to disclose commission of offences not falling within the jurisdiction of the Police Station. When investigation from its inception, not within jurisdiction of the Investigating agency, is held not to be a nullity, because of legal incompetence of the Investigating Officer, there is an added reason to hold criminal proceedings emanating from the investigation initially within competence of a police officer but pushed out of jurisdiction because of the outcome of investigation, valid and not to be negated, in absence of prejudice to the accused. 16. 16. The ground urged before the trial Court as also in the instant petition that the cognizance itself was bad and prohibited by Section 197 Cr.P.C as no prior sanction for prosecution of the respondent/accused No. 3 Honorary Secretary Table Tennis Federation of India (deceased) was obtained from the Central Government is devoid of any merit. It is rightly held by the trial Court that the offence alleged against the respondent/accused No. 3 was not one committed by him while acting or purporting to act in discharge of his official duties. Section 197 Cr. P.C is thus not attracted and the cognizance of the offence in absence of previous sanction from the Government of India was not prohibited under the aforesaid provision. 17. For the reasons discussed above the petitioner has not been able to make out a case for exercise of inherent powers under Section 561 Cr. P.C to quash the order of trial Court dated 29.07.2004 and the proceedings pending. 18. The petition is accordingly dismissed. The trial Court, to make good the delay in trial because of pendency of the present petition for last more than six years, shall take up the matter at least once in two weeks and ensure that trial is taken to its logical end with the reasonable dispatch. Dismissed alongwith CMP(s), if any.