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2013 DIGILAW 328 (CHH)

DHANANJAY CHOUHAN v. STATE OF C. G.

2013-11-20

T.P.SHARMA

body2013
ORDER 1. By this petition under Section 482 of the CrPC, the petitioners have prayed for quashment of the criminal proceeding pending against the petitioners before the Court of Judicial Magistrate First Class, Pamgarh in Criminal Case No. 398/2010 on the ground of investigation by incompetent authority. 2. Brief facts necessary for decision of this petition are that Crime No. 209/2010 for the offence punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 has been registered against the petitioners relating to violation of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. The Sub Inspector of Police has registered the FIR. He has investigated the offence and finally, submitted charge sheet. 3. As per grievance of the petitioners, the Sub Inspector of Police is not competent to investigate the offence. As per Notification No. F4-18/food/2005/29 dated 16th December, 2005, police officer not below the rank of Inspector is only the competent authority to investigate the offence. Therefore, continuance of criminal case before the trial Court is abuse of process of the Court. 4. Counsel for the parties are heard. Copy of the charge sheet and copies of other documents perused. 5. Learned counsel for the petitioners submitted that as per the notification dated 16-12-2005, police officer not below the rank of Inspector is only the competent authority to investigate the offence. In the present case, offence has been investigated by the Sub Inspector of Police i.e. below the rank of Inspector. Therefore, investigation by unauthorized person and criminal proceeding on the basis of unauthorized investigation is required to be quashed under the provisions of Section 482 of the CrPC. Learned counsel placed reliance in the matter, of Umesh Kumar Chaubey Vs. State of Madhya Pradesh 2000 Cri.LJ. 1760 in which the High Court of Madhya Pradesh has held that investigation of the offence punishable under the provisions of the Prevention of Corruption Act, 1988 by unauthorized officer i.e. below the rank of Deputy Superintendent of Police, is liable to quashed under Section 482 of the CrPC. 6. On the other hand, learned State counsel opposed the petition and submitted that investigation even by unauthorized officer cannot be quashed merely on the ground that the officer investigated the offence is not competent under the law, unless prejudice caused to the accused is shown. 7. 6. On the other hand, learned State counsel opposed the petition and submitted that investigation even by unauthorized officer cannot be quashed merely on the ground that the officer investigated the offence is not competent under the law, unless prejudice caused to the accused is shown. 7. In the present case, offence punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1955 for violation of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, has been investigated by the Sub Inspector of Police. Notification No. F4-18/food/2005/29 dated 16th December, 2005 reads thus, “Notification No. F4-18/food/2005/29 dated the 16th December 2005.-In exercise of the powers conferred by sub clause (1) of clause (13) of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000 the State Government hereby notifies the officers mentioned below to take necessary action under the provisions of said order within their respective jurisdictions, namely:- 1. All officers of the Food Department not below the rank of the Food Inspector. 2. All officers of the Revenue Department not below the rank of the Naib Tehsildar. 3. All officers of the Police Department not, below the rank of Inspector." 8. As per clause 3 of the notification dated 16-12-2005, in case of investigation by officer of the police, officer not below the rank of Inspector is competent to investigate the offence. Undisputedly, in the present case, offence has been investigated by the Sub Inspector of Police i.e. below the rank of Inspector of Police. 9. While dealing with the question of quashment of investigation conducted by unauthorized officer, the High Court of Madhya Pradesh in the matter of Umesh Kumar 2000 Cri.LJ. 1760 (supra) has held that investigation by unauthorized officer is liable to quashed under Section 482 of the CrPC. 10. Question of competency of criminal proceeding on the basis of investigation by officers not competent to investigate under different provisions of the Act has been considered by the Supreme Court from time to time. 11. While dealing with the effect of investigation by unauthorized officer in case of investigation of the offence punishable under, the Prevention of Corruption Act, 1947, in the matter of H.N. Rishbud and another Vs. 11. While dealing with the effect of investigation by unauthorized officer in case of investigation of the offence punishable under, the Prevention of Corruption Act, 1947, in the matter of H.N. Rishbud and another Vs. State of Delhi AIR 1955 SC 196 , the Supreme Court has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. The Supreme Court has observed in para 9 as follows:- "(9) The question then requires to be considered whether and to what extent the trial which follows such investigation 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. 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 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 provided 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 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. 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 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, Cr.P.C. which is in the following terms is attracted: "Subject to the provisions herein before 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 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 as appears from the cases in - 'Prabhu v. Emperor', AIR 1944 PC 73 (C) and 'Lumbhardar Zutshi v. The King’, AIR 1950 PC 26 (D). These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases 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. 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 caused thereby." 12. While dealing with same question under the provisions of the Prevention of Corruption Act, 1947 in the matter of Munnalal Vs. State of Uttar Pradesh AIR 1964 SC 28 , the Supreme Court has held that investigation in violation of the provision is illegal, however, trial will not vitiate in absence of miscarriage of justice. 13. While dealing with same question in the matter of The State of Andhra Pradesh Vs. P.V. Narayana AIR 1971 SC 811 , the Supreme Court has held that illegal investigation by police prior to taking cognizance of offence does not vitiate either the trial or conviction unless miscarriage of justice has been caused. 14. In the matter of State of Chhattisgarh v. Harmahendra Singh Gandhi (Criminal Appeal No. 843/2001 decided on 21-9-2005), the Supreme Court has further held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. While dealing with same question in the matter of Ghunnu Ram Gawade vs. State of Madhya Pradesh 2009 Cri.L.J. 559, this Court has held that defect in investigation will not affect competence of trial and observed in para 19 as follows:- "19. In the matter of State of Andhra Pradesh v. P.V. Narayana, 1971 (1) SCC 183 : (1971 Cri LJ 676) in which while dealing with the provisions of Section 5(1) of the Act of 1947 it has been held by the Apex Court that in case of illegal investigation the Court is required to see whether it has resulted in prejudice to the accused. In the matter of State of Chhattisgarh v. Harmahendra Singh Gandhi (Criminal Appeal No. 843 of 2001 decided on 21-9-2005) it has been held by the Apex Court that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. In the matter of State of Chhattisgarh v. Harmahendra Singh Gandhi (Criminal Appeal No. 843 of 2001 decided on 21-9-2005) it has been held by the Apex Court that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. While dealing with the provisions of Section 5-A of the Act of 1947 in the matter of H.N. Rishbud and another v. State of Delhi AIR 1955 SC 196 : (1955 Cri LJ 526) in which it has been held by the Apex Court that investigation by unauthorized person does not by itself is rendered illegal unless serious prejudice caused to the accused or party is shown and it does not affect the competence or jurisdiction of the Court. Relying on the decision in the matter of H.N. Rishbud (supra) it has been held by the Apex Court in the matter of Munnalal (in all appeals) v. State of Uttar Pradesh (in all appeals) AIR 1964 SC 28 : (1964 (1) Cri LJ 11) that investigation in violation of the provision is illegal. Trial is however not vitiated in absence of miscarriage of justice. I do not find force in the contention of the learned counsel for the appellant." 15. In the present case, Sub Inspector of Police was not authorized to investigate the offence. After investigating the offence, charge sheet has been filed and the trial Court has taken cognizance. In absence of any prejudice caused to the petitioner, defect in investigation or investigation by unauthorized officer is not sufficient to vitiate the criminal proceeding or quash the criminal proceeding in terms of Section 482 of the CrPC. In the light of dicta of the Supreme Court in aforesaid cases and has held by the High Court of Madhya Pradesh in Umesh Kumar’s case 2000 Cri.L.J. 1760 (supra), in case of investigation by unauthorized officer, investigation can be held as investigation in violation of the provisions or investigation by unauthorized officer, but criminal proceeding or order taking cognizance of the offence by the Court cannot be quashed. 16. For the foregoing reasons, the petition is liable to be dismissed and is hereby dismissed. Application Dismissed.