Union of India etc. Rep. through Superintendent of Police versus T. Nathamuni Respondent(s) : Supreme Court - Section 17 of the Prevention of Corruption Act, 1988 and section 482 of Criminal Procedure Code
Supreme Court of India
CRIMINAL APPEAL NOs.....................OF 2014 (Arising out of Special Leave Petition (Crl.) No Judgment Date: Dec 01, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.....................OF 2014
(Arising out of Special Leave Petition (Crl.) Nos.2521-2522 of 2014)
Union of India etc.
Rep. through Superintendent of Police ...Appellant(s)
versus
T. Nathamuni ...Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.
Leave granted.
2. The present appeals are directed against the common judgment and
order dated 5.7.2013 passed by the Madurai Bench of Madras High Court in
Crl.O.P. No.1943 & 6464 of 2010, whereby the High Court set aside the
order passed by the Trial court permitting a Sub-Inspector of Police to
investigate the matter under the Prevention of Corruption Act.
3. The facts giving rise to the present appeals are that on the basis of
a complaint from one S. Muniraj a case being RC 50(A)/2009 was registered
by Central Bureau of Investigation, ACB, Chennai against respondent - T.
Nathamuni, Inspector of Income Tax on the allegation that the accused had
demanded an amount of Rs. 5,000/- from the complainant. A trap was laid
and allegedly the accused was caught red handed while accepting the bribe
amount. Initially, the case was investigated by Mr. Lawrence, Inspector of
Police and owing to some administrative reasons, the Superintendent of
Police, Central Bureau of Investigation, Anti Corruption Branch, Chennai
filed petition dated 22.9.2007 under Section 17 of the Prevention of
Corruption Act, 1988 (in short, 'the Act') before the Court of Special
Judge CBI cases, Madurai seeking permission for investigation of the case
by Shri G.A. Suriya Kumar, Sub-Inspector of Police, instead of Mr.
Lawrence, Inspector of Police.
4. The Special Judge for CBI cases, Madurai vide order dated 24.09.2009
allowed the aforesaid petition permitting G.A. Suriya Kumar, Sub-Inspector
of Police to investigate the case. After completion of investigation,
charge sheet dated 01.12.2009 was filed in the Court of Special Sessions
Judge for CBI cases, Madurai and the Court took cognizance and assigned it
CC No.7/2009.
5. During the course of trial, the respondent moved the High Court
preferring criminal original petition under section 482 of Criminal
Procedure Code (in short, 'Cr.P.C.') to quash the entire proceedings in CC
No.7/2009 on the ground that there is correction in the FIR and sanction
was not accorded by proper authority. Respondent also preferred another
petition to call for the records and to quash the order dated 24.09.2009
passed by the Special Judge, Madurai in Crl. M.P. No.549 of 2009 permitting
Shri GA Suriya Kumar, Sub-Inspector of Police to investigate the case.
6. The High Court vide its impugned order dated 5.7.2013 set aside
aforesaid order of the Trial Court on the ground that Section 17 of the Act
provides that if the officer not below the rank of Inspector of Police is
authorized by the Government, such officer can investigate the case without
permission of the Court. There is no specific provision in Section 17 of
the Act that the Sub-Inspector of Police is also empowered to investigate
the case with the permission of the Court. The High Court further observed
that the Special Court without assigning any reason in the order permitted
the Sub-Inspector of Police to investigate the matter and the same is not
in accordance with law.
7. Hence, these appeals by special leave by the Union of India as well
as the State.
8. We have heard learned counsel for the parties. Mr. K. Radhakrishnan,
learned senior counsel appearing for the appellant submitted that the High
Court has failed to appreciate that Special Judge granted permission to
aforesaid Sub-Inspector of Police, CBI, Chennai to investigate the case and
after completion of the investigation, charge sheet was filed and
cognizance was taken. Learned counsel contended that the High Court
interpreted Section 17 of the Act erroneously. The provisions of Section
17(a) of the Act prescribe that without the permission of the Court, the
investigation of the case below the rank of Inspector of Police shall not
be done. But in this case, the investigation was done with the order of
the Court. Learned counsel submitted that by virtue of Section 5(3) of the
Delhi Special Police Establishment Act any member of the Delhi Special
Police Establishment of or above the rank of Sub-Inspector is made officer-
in-charge of police station and, therefore, they have the power to
investigate into the offences mentioned in the notification under Section 3
of the Act within their respective limits and they can exercise all the
functions of the Officer-in-charge of the police station.
9. Per contra, it has been submitted on behalf of the respondent that
criminal prosecution was initiated on a complaint given by the Secretary of
Rajapalayam Town Co-operative Housing Society, Rajapalayam relating to an
enquiry in connection with evasion of payment of income tax for the house
building owned by him. However, investigation has been conducted without
prior sanction of the competent authority as required under Section 19 of
the Act. In the present case, sanction had been given by Commissioner of
Income Tax after completion of investigation. It is contended that the
powers of the High Court under Section 482 is wide and full enough to
interfere in this case where the lower court made investigation without
proper sanction as is mandated under Section 19 of the Act and also where
investigation is done by a person below the rank of Inspector of Police as
mandated under Section 17 of the Act. It is further submitted by the
respondent that the Court has no power to grant permission to police
officer below the rank of Inspector of Police, without any specific or
general order of the Government to that effect for such an officer. It was
further submitted by the counsel that the accused has all justification in
challenging the faulty procedure in investigation. Since provisions of
Section 17 and 19 are held mandatory, once protections under the Act are
taken away, public servants cannot carry out their public duties without
fear or fervor.
10. While setting aside order of the trial court, the High Court has
observed that reading of Section 17 of the Act discloses that if the
Officer not below the rank of the Inspector of Police is authorized by the
Government, such officer can investigate the case without permission of the
Court.
11. In the instant case, the only question that needs to be considered is
as to whether the order passed by the Magistrate permitting the Sub-
Inspector, CBI, Chennai to investigate the matter can be sustained in law.
The only ground taken by the respondent in the quashing petition before
High Court is that as per the provisions of Section 17 of Prevention of
Corruption Act, 1988, no officer below the rank of Inspector of Police is
authorized by the Government to investigate the case without permission of
the Court. Further, Section 17 does not confer any power to the Court to
grant permission to Sub-Inspector of Police to investigate the case.
Hence, order passed by the Magistrate permitting the Sub-Inspector of
Police to investigate the case is without jurisdiction and against the
mandatory provisions of Section 17 of the Act as well as Article 21 of the
Constitution of India. Before answering the question we would like to
refer to Section 17 of the Prevention of Corruption Act, 1988 which reads
as under:-
"17. Persons authorised to investigate.-Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer
below the rank,-
(a) in the case of the Delhi Special Police Establishment, of an Inspector
of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and
in any other metropolitan area notified as such under sub-section (1) of
section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an
Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of
equivalent rank,
shall investigate any offence punishable under this Act without the order
of a Metropolitan Magistrate or a Magistrate of the first class, as the
case may be, or make any arrest therefor without a warrant: Provided that
if a police officer not below the rank of an Inspector of Police is
authorised by the State Government in this behalf by general or special
order, he may also investigate any such offence without the order of a
Metropolitan Magistrate or a Magistrate of the first class, as the case may
be, or make arrest therefor without a warrant: Provided further that an
offence referred to in clause (e) of sub-section (1) of section 13 shall
not be investigated without the order of a police officer not below the
rank of a Superintendent of Police."
12. It is clear that in the case of investigation under the Delhi Special
Police Establishment Act, an officer below the rank of Inspector cannot
investigate without the order of a competent Magistrate. In the present
case, order of the Special Judge was obtained by filing an application.
That order dated 24.9.2009 shows that it was passed on request and in the
interest of justice, investigation pursuant to such order did not suffer
from want of jurisdiction and hence, in the facts of the case, the High
Court erred in law in interfering with such investigation more so when it
was already completed.
13. The question raised by the respondent is well answered by this Court
in a number of decisions rendered in a different perspective. The matter
of investigation by an officer not authorized by law has been held to be
irregular. Indisputably, by the order of the Magistrate investigation was
conducted by Sub-Inspector, CBI who, after completion of investigation,
submitted charge-sheet. It was only during the trial, objection was raised
by the Respondent that the order passed by the Magistrate permitting Sub-
Inspector, CBI to investigate is without jurisdiction. Consequently, the
investigation conducted by the officer is vitiated in law. Curiously
enough the respondent has not made out a case that by reason of
investigation conducted by the Sub-Inspector a serious prejudice and
miscarriage of justice has been caused. It is well settled that
invalidity of investigation does not vitiate the result unless a
miscarriage of justice has been caused thereby.
14. In the case of Dr. M.C. Sulkunte vs. The State of Mysore, AIR 1971 SC
508, the main question raised by the appellant in an appeal against the
order of conviction was that the sanction to investigate the offence given
by the Magistrate was not proper in as much as he had not recorded any
reason as to why he had given permission to the Inspector of Police to
investigate the offence of criminal misconduct of obtaining illegal
gratification. Considering Section 5(A) of the Act Their Lordships
observed:-
"15. Although laying the trap was part of the investigation and it had been
done by a Police Officer below the rank of a Deputy Superintendent of
Police, cannot on that ground be held that the sanction was invalid or that
the conviction ought not to be maintained on that ground. It has been
emphasised in a number of decisions of this Court that to set aside a
conviction it must be shown that there has been miscarriage of justice as a
result of an irregular investigation. The observations in State of M.P. v.
Mubarak Ali, 1959 Supp 2 SCR 201 at pp 210 and 211, to the effect that when
the Magistrate without applying his mind only mechanically issues the order
giving permission the investigation is tainted cannot help the appellant
before us."
15. In the case of Muni Lal vs. Delhi Administration, AIR 1971 SC 1525,
this Court was considering the question with regard to the irregularity in
investigation for the offence under the Prevention of Corruption Act.
Following earlier decisions, this Court held:-
"4. From the above proposition it follows that where cognizance of the case
has in fact been taken and the case has proceeded to termination, the
invalidity of the preceding investigation will not vitiate the result
unless miscarriage of justice has been caused thereby and the accused has
been prejudiced. Assuming in favour of the appellant, that there was an
irregularity in the investigation and that Section 5-A of the Act, was not
complied with in substance, the trial by the Special Judge cannot be held
to be illegal unless it is shown that miscarriage of justice has been
caused on account of illegal investigation. The learned counsel for the
appellant has been unable to show us how there has been any miscarriage of
justice in this case and how the accused has been prejudiced by any
irregular investigation."
16. In the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604, this
Court while considering Section 5A of the Act, held as under:
"125. It has been ruled by this Court in several decisions that Section 5-A
of the Act is mandatory and not directory and the investigation conducted
in violation thereof bears the stamp of illegality but that illegality
committed in the course of an investigation does not affect the competence
and the jurisdiction of the court for trial and where the cognizance of the
case has in fact been taken and the case is proceeded to termination, the
invalidity of the preceding investigation does not vitiate the result
unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud
and Inder Singh v. State of Delhi (AIR 1955 SC 196); (2) Major E.G. Barsay
v. State of Bombay (1962) 2 SCR 195; (3) Munna Lal v. State of Uttar
Pradesh, ((1964) 3 SCR 88; (4) S.N. Bose v. State of Bihar, (1968) 3 SCR
563; (5) Muni Lal v. Delhi Administration, 1971 (2) SCC 48, 6) Khandu Sonu
Dhobi v. State of Maharashtra, 1972 (3) SCR 510. However, in Rishbud
[pic]case and Muni Lal case, it has been ruled that if any breach of the
said mandatory proviso relating to investigation is brought to the notice
of the court at an early stage of the trial, the court will have to
consider the nature and extent of the violation and pass appropriate orders
as may be called for to rectify the illegality and cure the defects in the
investigation."
17. In the case of A.C. Sharma vs. Delhi Admn., (1973) 1 SCC 726,
provisions of Section 5A were again considered by this Court and held as
under:
"15. As the foregoing discussion shows the investigation in the present
case by the Deputy Superintendent of Police cannot be considered to be in
any way unauthorised or contrary to law. In this connection it may not be
out of place also to point out that the function of investigation is merely
to collect evidence and any irregularity or even illegality in the course
of collection of evidence can scarcely be considered by itself to affect
the legality of the trial by an otherwise competent court of the offence so
investigated. In H.N. Rishabud and Inder Singh v. State of Delhi (supra) it
was held that an illegality committed in the course of investigation does
not affect the competence and jurisdiction of the court for trial and where
cognizance of the case has in fact been taken and the case has proceeded to
termination of the invalidity of the preceding investigation does not
vitiate the result unless miscarriage of justice has been caused thereby.
When any breach of the mandatory provisions relating to investigation is
brought to the notice of the court at an early stage of the trial the Court
will have to consider the nature and extent of the violation and pass
appropriate orders for such reinvestigation as may be called for, wholly or
partly, and by such officer as it considers appropriate with reference to
the requirements of Section 5-A of the Prevention of Corruption Act, 1952.
This decision was followed in Munna Lal v. State of U.P where the decision
in State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707 was
distinguished. The same view was taken in the State of Andhra Pradesh v. M.
Venugopal, 1964 (3) SCR 742 and more recently in Khandu Sonu Dhobi v. State
of Maharashtra (supra). The decisions of the Calcutta, Punjab and
Saurashtra High Courts relied upon by Mr Anthony deal with different
points: in any event to the extent they contain any observations against
the view expressed by this Court in the decisions just cited those
observations cannot be considered good law."
18. As noticed, on the basis of the permission accorded by the
Magistrate, the Sub-Inspector, CBI proceeded with the investigation and
finally submitted charge-sheet. It was only after that, said order of
Magistrate was questioned by the Respondent by filing a criminal petition
in the High Court. The learned Single Judge, appreciating the submission
made by the learned counsel, held that since the special court without
assigning any reason permitted Sub-Inspector of Police to investigate the
matter, the order is not in accordance with law and disposed of the
petition giving liberty to the prosecution to file a fresh petition before
the court seeking permission to get the matter investigated by a competent
officer.
19. As discussed earlier, the High Court erred in overlooking the gist
of order of Special Judge permitting the Sub-Inspector to investigate.
Further, having regard to the fact that no case of prejudice or miscarriage
of justice by reason of investigation by the Sub-Inspector of Police is
made out, the order of the High Court cannot be sustained in law. For the
reasons stated above, these appeals are allowed and the order passed by the
High Court is set aside. The concerned Court shall now act with utmost
expedition.
..................................J.
[ M.Y. Eqbal ]
..................................J
[Shiva Kirti Singh]
New Delhi
December 01, 2014
For the Latest Updates
Join Now