TMI Blog1963 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Judge for offences under s. 5 (1) (c), read with s. 5 (2), of the Act. Before the Special Judge the prosecution filed a number of documents numbering up to 124 and examined 20 witnesses. The accused admitted before him that he had realized the amounts as alleged by the prosecution, but pleaded that he had no dishonest intention, and that the deficit found was due to inadvertance and oversight. The Special Judge considered the entire evidence and found that the evidence adduced by the prosecution established that the accused misappropriated the amounts received by him as a public servant. It was contended before him that the investigation of the case has been made by SubInspector Mathur, who under the law was not entitled to investigate the case, as he was below the rank of Deputy Superintendent and hence the trial was vitiated. The learned Special Judge held that the said Sub-Inspector did not conduct any investigation before he obtained the requisite permission from the appropriate authority and that even if he did it had not been established that the accused was prejudiced by such an enquiry. In the result he convicted the accused and sentenced him as aforesaid. On appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of misappropriating Government money, giving 7 instances of the acts of misappropriations committed by him and informing him that if a proper investigation was made many more cases of misappropriation would come to light. Mathur, the Sub-Inspector of Police, Special Police Establishment, as P.W. 15 says that on the receipt of the said report, the said Superintendent of .Police directed him to make an enquiry; and he further says that on the basis of the information he checked the railway records, found that the information was correct and submitted a report accordingly. After he submitted the report, on October 8, 1956, the said Sub-Inspector applied to the Additional District Magistrate (Judicial), Lucknow, for permission to investigate the case. On October 19, 1956, the said Magistrate permitted him to investigate. Thereafter, he made further investigation, seized documents, took statements from witnesses and finally submitted a charge-sheet against the accused. The first question is whether the enquiry made by him before he obtained the permission of the Magistrate was investigation within the meaning of the provisions of the Code of Criminal Procedure. Section 154 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the information received by the said officer was not vague, but contained precise particulars of the acts of misappropriation committed by the accused. On April 26, 1956 he sent a report of the information received to the Superintendent of Police, Special Police Establishment, Lucknow, indicating to him that if a proper investigation was made many more cases of misappropriation would come to light. On the receipt of the said report, the matter was entrusted to the said Mathur, a SubInspector of Police of the Special Police Establishment, Lucknow. As P.W. 20 he describes the steps he had taken pursuant to the information given in the said report. He verified the allegations contained in the information given by Khanna, saw the relevant railway records after taking the permission of the Station Master and found the information given to be correct.. On the basis of the information collected, he submitted a report. But the full details of the enquiry were not mentioned therein. He also did not prepare any case diary in respect of the said enquiry. The said report is not in the record. We may assume that the Sub-Inspector did nothing more than what he states he did in his evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er decisions were given in the context of the question whether an information given was the First Information within the meaning of s. 154 of the Code: they are not of much relevance in considering the question whether in a particular case a police officer has made an investigation of a cognizable offence within the meaning of s. 157 of the Code; that would depend upon the nature of the information received by the police officer, and the steps taken by him for ascertaining the 'truth of the information and for detecting the crime. In this case, the information received was clear and precise and the Sub-Inspector, on the basis of the said information, went to the spot to investigate into the truth of the allegations and indeed took some of the crucial steps to detect the crime. We, therefore, hold that the Sub- Inspector of the Police made investigation of the offence before obtaining the requisite permission of the Magistrate. Section 5A of the Act reads: Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank-- X X X X X (c) elsewhere, of a deputy superintendent of police, shall investigate any offence punish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J establishment. The Superintendent of Police in Eorwarding that application endorsed that statement nd further pointed out that he was busy with the supervision of other important cases and administrative duties. The Magistrate on October 19, 1956, on the basis of the said facts gave the necessary permission to the Sub- Inspector to investigate the offence. The Sub-Inspector thereafter made a detailed investigation, took statements, of witnesses, seized the relevant papers, got an investigation ,made, when necessary through other branches of the Special Police Establishment, and thereafter submitted the charge-sheet. In short, after taking the permission of the Magistrate, he started practically a fresh investigation in strict compliance with the provisions of the Code of Criminal Procedure. Indeed, no attempt has been made to point out any defect or contravention of the provisions of the Code of Criminal Procedure in the matter of investigation after the granting of the said permission. After the investigation, the accused was tried by the Special Judge. The prosecution examined 20 witnesses and filed 124 exhibits. The defence examined 3 witnesses. The learned Special Judge, on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conviction and the irregularity in the investigation.' In this case, as we have earlier pointed out, not only the trial was fair and the evidence convincing, but even the earlier defect was rectified by having practically a de novo investigation in strict compliance with the provisions of the Code of Criminal Procedure. We cannot, therefore, hold that the accused has been prejudiced by the illegality committed by the police in the first stage of 'the investigation, The High Court st:t: aside the conviction on the ground that there was a breach of the mandatory safe guards of the Act in that the first stage of the investigation was contrary to the provisions of the Act. But it did not consider the other question whether the said breach caused prejudice to the accused in the matter of' his trial. In doing so, the High Court ignored the provisions of s. 537 of the Code of Criminal Procedure. Having carefully gone through the record, for the reasons aforesaid, we are satisfied that no such prejudice has been caused to the accused. He had a fair trial and had his full say. We, therefore, set aside the order of the High Court and convict the respondent under s. 5 (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure for investigation as follows: Thus, under the Code investigation consists generally of the following steps':(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consists of (a) the examination of various persons (including the accused) and the reduction of the their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filling of a charge-sheet under section 173. This Court, however, has not said that if a police officer takes merely one or two of the steps indicated by it, what he has done must necessarily be regarded as investigation. Investigation, in substance, means collection of evidence relating to the commission of the offence ? The Investigating Officer is, for this purpose, en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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