TMI Blog1970 (3) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1935. He attained the age of 55 years on March 14, 1964 on which date he was asked to hand over charge of his office to one Shiv Shankar Mudaliar, Superintending Engineer, Madras. He expected to be retained in service up to the age of 58, a privilege said to be normally accorded to persons physically and otherwise fit for public service. It appears that on March 1, 1964 a copy of a petition concerning him and dated February 28, 1964 addressed to the Minister, Public Works by one Rangaswami Nadar was received by the Chief Minister of the State. It is said that apart therefrom allegations about want of rectitude of the appellant had already reached the Government. The Chief Minister asked the Director of Vigilance and Anti-Corruption to make confidential enquiries. On March 10, 1964 Government received a note from the said officer which cast serious aspersions on the appellant's reputation and mentioned quite -a few instances of his lack of probity. The endorsement of the Chief Minister on the note read: Secretary, P.W.D. I had this (petition already mentioned) from the Director of Vigilance. This may be immediately looked into. I have asked the Director to pursue the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act within the limits of the whole of .he State of Madras except the Presidency Town. The complaint by Ranganathan to the Additional Superintendent of Police, Vigilance and Anti-Corruption, gave details of various malpractices with which the appellant was charged. He was inter alia said to have obtained various articles of furniture with the help of Sivasubrahmanyam and Chidambaram mentioned above by paying only a small fraction of the cost -and asking them to adjust the balance by manipulations of the muster rolls claims. He was also said to have got his residence whitewashed in a similar manner. It was also alleged against him that he had constructed a bungalow by diverting building materials allotted for the construction of 'the Cauveri bridge at Tiruchinapalli. The complaint wound up with a paragraph to the effect that a criminal case would be registered against him as a regular investigation alone would facilitate the collection 9 3 5 of additional evidence by way of recovery of valuable things which he had obtained from his subordinates by various illegal means and in addition more incriminating evidence was likely to be ,forthcoming during the investigation. Sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il for lack of evidence. 9 3 6 Against that order dated January 16, 1965 the Public Pro- secutor Preferred Cr. R.C. 294 of 1965 and the appellant preferred Cr.M.P. 934 of 1965 under s. 561-A of the Code, for quashing the proceedings and discharging him as the charge was groundless. The appellant filed. two writ petitions before the High Court, namely, one for a writ of mandamus directing the forbearing from prosecution of C.C. No. 10 of 1964 and a second for a writ of certicrari to quash the order of the Special Judge mentioned above. There was a petition under ss. 435/439 of the Criminal Procedure Code for revision of the order of the Special Judge and one under s. 561-A of the Code for quashing his said order. The High Court dealt with all the Writ Petitions and the different allied matters together. Broadly speaking, it was urged before the High Court: 1.There had been such a violent departure from the provisions of the Code in the matter of investigation and cognizance of offences as to amount to denial of justice and to call for interference by the issue of prerogative writs. 2. The investigation and prosecution were wholly mala fide and had been set afoot by his imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oundation vitiated the enquiry and necessitated the discharge of the appellant. The High Court examined the case made out in the affidavits of the appellant and the counter affidavits on behalf of the State. It expressed great dissatisfaction at the variance in the attitude of the State in the different affidavits in that whereas in the first counter affidavit there was no contradiction of the appellant's averment that assurances of immunity had been given to all the 18 persons examined before the lodging of the first information report, the plea put forward in a subsequent affidavit was that such assurance had been given only to two persons, namely, the two subordinates of the appellant and only after signed statements had been given by them. The Court was however not satisfied that a direction was called for for the prosecution of the subordinate officers also. Further the High Court was not impressed with the plea of hostile discrimination against the appellant observing that although the policy of not securing judicial pardon to accomplices by bringing them as approvers but retaining them at the sole discretion of the prosecution might be open to question that cannot by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code and in particular to Zahiruddin v. King Emperor(74 I.A. 65, 74.) that the evidence of a witness who had previously signed a statement in writing did not become inadmissible or vitiate the whole proceeding although the value of the evidence would be seriously impaired thereby. The court seems to have been of the view that it was the duty of the Magistrate or the presiding Judge on discovering that a witness had while giving evidence, made material use of a statement given by him to the police to disregard the evidence of that witness as inadmissible. The High Court's definite conclusion was that there had been a deliberate violation of the provisions of the Code and a departure from a recognised and lawful procedure, for investigation. With regard to the propriety of taking self-incriminatory statements even when there had been no assurance of immunity from prosecution, the High Court observed that as the learned Advocate General for the State had stated that the record of manipulations in the muster rolls by the subordinate officers of the appellant had to be disregarded as not proper material for consideration as the Special Judge had not considered these v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. the enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary depart- mental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charged sheet is submitted and a full-scale enquiry is launched. When the enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any pressure or inducement by an investigating officer S., 163(1) lays down an embargo on the investigating authorities using any inducement, threat or promise to the maker which might influence his mind and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings. It is to be noted that whereas the other sections hereinbefore referred to contain guidelines for the police officers in making investigation, this section expressly provides that any person in authority even if he is not a police officer must guide himself accordingly, in case where a crime is. being investigated under this Chapter of the Code. All this is however subject to the provisions of sub-s.(2) which allows a person to make any statement against his own interest by way of confession if he does so of his own free will. Even then the law enjoins by S. 164 that such a statement or con- fession can only be recorded by a Magistrate of the Class mentioned therein and even such a Magistrate must explain to the person making the confession before recording the same, that he is not bound to make it and if he does so it may be used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant with articles of food worth trifling sums of money long before the launching of the enquiry. The whole course of investigation as disclosed in the affidavits is suggestive of some predetermination of the guilt of the appellant. The enquiring Officer was a high-ranking police officer' -and it is surprising that simply because he was technically not exercising powers under Chapter XIV of the Criminal Procedure Code in that a formal first information report had not been lodged he overlooked or deliberately overstepped the limits of investigation contained in the said Chapter. He recorded self-incriminating ' statements of a number of persons and not only secured their signatures thereto obviously with the idea of pinning them down to those but went to the length of providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded. It was said that the certificates were given after the statements had been signed. It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates. There can be very little-doubt that the persons who were given su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fects thereof whether oral or in writing. There can be no excuse for the Directorate of Vigilance and Anti-Corruption for proceeding in the manner adopted in the Preliminary enquiry before the lodging of the first information report.As soon as it became clear to them- and according to the High Court it was before March 13, 1964 in which we concur-that the appellant appeared to be guilty of serious misconduct. it was their duty to lodge such a report and proceed further in the investigation according to Chapter XIV of the Code. Their omission to do so cannot but Prejudice the appellant and the State ought not to be allowed to take shelter behind the, plea that although the steps taken in the preliminary enquiry were grossly irregular and unfair, the accused cannot complain because there was no infraction of the rules of the 'Evidence Act or the provisions of the Code, In our view the granting of amnesty to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate. It was rightly pointed out by the High Court Neither the Criminal Procedure-Code nor the Prevention of Corruption Act recognises the immunity from prosecution giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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