H. N. RISHBUD AND INDER SINGH versus THE STATE OF DELHI

1954 Guhinath v . . Kamalabai ¥ahajiin" .. J.

1954 December 14

·For the reasons given above, this appeal fails and jg dismissed, but in the circumstances of the case · we will make no order as to costs. Appeal dismissed.

H. N. RISHBUD AND INDER SINGH tJ. THE STATE OF DELHI (And connected Appeals)

[MuKHERJEA, VIVIAN. BosE and JAGANNADHAMS JJ.]

Prevention of Corruption Act, 1947 (II of 1947), s. 5(4) .and pro-tJiso to s. 3-Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952), s 5-A-Whether mandatory or directory-Cognizance taken on police report vitiated by breach of mandatory provisions .,-Legal effect thereof.

Held, that s. 5(4) and proviso to s. 3 of the Prevention of Cor-ruption Act, 1947 (II of 1947) and the corresponding s. 5-A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation Conducteq in violation thereof is illegal. If cognizance is in fact taken on police report in breach of mandatory provision relating to investigation, the resul~ which fol· low cannot be set aside unless the illegality in the investigation c.an be sh.own to have brought about iniscarriage of justice. It is well-settled · that an· illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby.

When any breach of thi! mandatory provisions relating to irivestigation 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 thay be called for, wholly or partly, and by such officer as it con· s~ders appropriate with reference to the requirements of s. -5-A of the Prevention of Corruption (Second Amendment) Act, 1952.

·. Liverpool Borough Bank v. Turner ( [ 1861) 30 L.J. Ch. 379), Prabhu v. Emperor (A.LR. 1944 P.C. 73) and Lumbhardar Zutshi v. The King (A.1.R. 1950 P.C. 26), referred to.

. CRIMINAL APPELLATE Appeals Nos. 95 to 97 and 106 of 1954.

JURISDICTION : Criminal

S.C.R. SUPREME COURT REPORTS

Appeal by Special Leave from the Judgment and Order dated the 24th August 1953 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal Revision Nos. 109-D, 122-D and 123-D of 1953 arising out of the Judgment and Order dated the 25th May 1953 of the Court of Special Judge, Delhi, in Corruption Case No. 14 of 1954; from the Judgment and Order dated the 27th August 1954 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal Miscellaneous N 6. 131-D of 1954 .

H. /. Umrigar and Rajinder Narain, for appellant

C. K. Daphtary, Solicitor-General of India (G. N. Joshi, P. A. Mehta and P. G. Gokhale, with him), for the respondent. 1954. December 14. The Judgment of the Court was delivered by

JAGANNADHADAS J.-These are appeals by special leave against the orders of the Punjab High Court made in exercise of revisional jurisdiction, reversing the orders of the Special Judge, Delhi, quashing cer-tain criminal proceedings · pending before himself against these appellants for alleged offences under the Penal Code and the Prevention of Corruption Act, .1947. The Special Judge quashed the proceedings on the ground that the investigations on the basis of . which the appellants were being prosecuted were m contravention of the provisions of sub-section ( 4) of sec-tion 5 of the Prevention of Corruption Act, 1947, and hence illegal. In Appeal No. 95 of 1954 the appellants are two persons by name H. N. Risbud and Indar Singh. In Appeals No. 96 and 97 of 1954 H. N. Risbud above mentioned is the sole appellant. These appeals raise common question of law and are dealt with together. The appellant Risbud was the Assistant Development Officer (Steel) in the office of the Directorate-General, Ministry of Industry · and Supply, Government of India and the appellant Indar Singh was the Assistant Project Section Officc;r (Steel) in the office of the Direc~

H. N. Rishbud and lruler Singh v;

TheStatt of Dtlhi

ducted not by any Deputy Superintendent of Police but by officers of lower rank and that after the per-mission was accorded little or no further investiga-tion was made. The question, therefore, that has been raised is, that the proceedings by way of trial mltl-ated on such charge-sheets are illegal and require to be quashed. · To appreciate the argument it is necessary to notice the relevant sections of the Prevention of Corruption Act, 1947 (Act II of · 1947) hereinafter referred to as the Act. Section 3 of the Act provides that offences punishable under section 161 or 165 of the Indian Penal Code shall be deemed to be cognizable offences. Section 4 enacts special rule of evidence against persons accused of offences under section 161 or 165 of the Indian Penal Code, throwing the burden of proof on the accused. Broadly stated, this section provides that if it is proved against an accused that he has accepted or obtained gratification other than legal remuneration, it shall be presumed - against him that this was so accepted or obtained as motive or reward, such as is mentioned in section 161 of the Indian Penal Code. Sub-sections (1) and (2) of section 5 create new offence of "criminal misconduct in dis-charge of official duty" by public servant punish-able with imprisonment for term of seven years or fine or both. Sub~section (3) thereof enacts new rule of evidence as against person accused of the commission of offences under section 5(1) and (2). That rule, broadly stated, is that when person so accused, or any other person on his behalf, is in possession of pecuniary resources or property disprO'-portionate to the known sources of his income and for which he cannot satisfactorily account, the Court shall presume him to be guilty of criminal m1scon~ duct unless he can displace that presumption by evi-dence. The offence of criminal misconduct which has been created by the Act, it will be seen, is in itself cognizable offence, having regard to item 2 of- the last portion of Schedule II of the Code of Criminal Procedure under the head "offences against the :other laws". In the normal course, therefore, ·an investi-

H. N. Rishbud anti lnder Singh v. The State of Delhi :Jagannadhadas :J.

H. N. Rirhbud ·anJ lnder Singh · v. T h1 State of Delh. J~gannadhat/as].·

gation into the offence of criminal misconduct under section 5(2) of the Act and an investigation into the offence under sections 161 and 165 of the Indian Penal Code which have been made cognizable by section 3 of the Act would have to be made by an officer in-charge of police station and no order of any Magis-trate in this behalf would be required. But the prc>-viso to section 3 as well as sub-section ( 4) of section 5 of the Act specifically provide that "a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of Magistrate of the First Class or make any arrest therefor without warrant". It may be men-tioned that this Act was amended by Act LIX of 1952. The above mentioned proviso to section 3 as well .as sub-section ( 4) of section 5 have been thereby omitted and substituted by section 5-A, the relevant portion of which may be taken to be as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, no police officer below the rank of Deputy Superintendent of Police (else-where than in the presidency towns of Calcutta, Madras and Bombay) shall investigate any offence punishable under sections 161, 165 or 165-A of the Indian Penal Code or under section 5(2) of this ~ct without the order of Magistrate of the First Class". This amendment makes no difference. In any case the investigation in these cases having taken place prior to the amendment, what is relevant is section 5( 4) as it stood before the amendment. It may also be mentioned that in 1952 there was enacted the Cri-minal Law Amendment Act, 1952 (Act XLVI of 1952) which provided for the appointment of Special Judges to try offences under sections 161, 165 and 165-A of the Indian Penal Code and under sub;section (2) of section 5 of the Act such offences were made triable only by such Special Judges. Provision was also· made that all pending cases relating to such offences · shall be fonvarded for trial to the Special Judge. That is how the present cases are all now before the Special Judge of Delhi appointed under this Act. On the arguments urged before us two points . ·arise

for consideration. ( 1) Is the provision of the Preven-tion of Corruption Act, 1947, enacting that the investi-gation into the offences specified therein shall not be conducted by any police officer of rank lower than Deputy Superintendent of Police without the speci-fic order of Magistrate, directory or mandatory. (2) Is the trial following upo11 an investigation in con-travention of this provision illegal.

To determine the first question it is necessary to consider carefully both the language and scope of the section and the policy underlying it. As has been pointed out by Lord Campbell in Liverpool Borough Bank v. Turner(1 ), "there is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Court to try to get at the real intention of the Legis-lature by carefully attending to the whole scope of the statute to be construed". (See Craies on Statute Law, page 242, Fifth Edition). The Code of Criminal Procedure provides not merely for judicial enquiry into or trial of alleged offences but also for pnor m-vestigation -thereof. Section 5 of the Code shows that all offences "shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code" (except in so far as any special enactment may provide otherwise). For the purposes of investigation offences are divided into two categories 'cognizable' and 'non-cognizable'. When information of the com-mission of cognizable offence is received or such commission is suspected, the appropriate polic.e officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground). But where the information relates to non-cognizable offence, he shall not investigate it without the order of competent Magistrate. Thus it may be seen that according to the scheme of the Code, investigation is normal preliminary to an ac-. cused being put up for trial for cognizable offence (except when the Magistrate takes cognizance . other-(1) [1861] 30 L.J. Ch 379·

ff. N. Rishbud and lnder Singh v. "The' State. of Delhi 7agannadhadas J.

1954 H. N. Rishbud and lnder Singh v. The State of Delhi :Jagannadhadas ].

purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there 1s no other competent officer available. The investi-gating officer has also the power to arrest the person or persons suspected of the commission of the offence under section 54 of the Code. police officer making an investigation is enjoined to enter his proceedings m diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send copy of the entries in the diary to the Magistrate concerned. It is important to notice that where the investigation is conducted not by the officer in charge of the police station but by subordinate officer (by virtue of one or other of the prov1S1ons en-abling him to depute such subordinate officer for any of the steps in the investigation) such subordi-nate officer 1s to report the result of the investigation to the officer in charge of the police station. If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may de-cide to release the suspected accused, if m custody, on his executing bond. If-, however, it appears to ·him that there is sufficient evidence or reasonable ground, to place the accused on trial, he 1s to take the necessary steps therefore under section 170 of the Code. In either case, on the completion of the in-vestigation he has to submit report to the Magis-trate under section 173 of the Code in the prescribed form furnishing vanous details. 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) Dis-covery and arrest of the suspected offender, ( 4) Collec-tion of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the re-duction of 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 opi-

H. }{. Rishbw/ and lnder Singh

"The State of Delhi Jagannadhadas ]I

S.C.R. SUPREME COURT REPORTS

servants as such, are non-cognizable. cursory peru-sal of Schedule II of the Code of Criminal Proce-dure discloses that almost all the offences which may be alleged to have been committed by public ser-vant, fall within two chapters, Chapter IX "Offences by, or relating to, public servants", and Chapter XI "Offences against public justice" and that each one of them is non-cognizable. (Vide entries in Schedule II under sections 161 to 169, 217 to 233, 225-A as also 128 and 129). The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions--often enough in difficult circumstances-should not be exposed to the harassment of investi-gation against them on information levelled, possibly, by persons affected by their official acts, unless Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same. This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour. When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the of-fences of corruption comprised in the Act, by making them cognizable, it may be presumed that it was con -sidered necessary to provide substituted safeguard from undue harassment by requiring that the investi-gation is to be conducted normally by police officer of designated high rank. Having regard therefore to the peremptory language of sub-section ( 4) of sec-tion 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory. It has been suggested by the learned Solicitor-General in his arguments that the consideration as to the. policy would indicate, if at all, only the necessity for the charge-sheets in such case having to be filed by the authorised officer, after coming to his own conclu-sion. as to whether or not there is case to place the accused on trial before the Court, on perusal of the material previously collected, and that at best this might extend also to the requirement of arrest of the 18-89 S.C. India/59

H. N. Rishhud anti lnder Singh v.

The State of Delhi

Jagannadhada.s ].

· H. N. Rishbud and /ruler Singh v. The State of Delhi Jagannadhadas J.

SllPREME COURT REPORTS

H. N. Rishbud and lnder Singh v. The State of Delhi Jagannadhadas ],

H. N. Rishbud and ---lnder Singh v. Tfje State of Delhi -Jagannadhadas J.

~zance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore 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 onlv in the -! nature of error in proceeding antecedent to 'the trial. To such situation section 537 of the Code of Criminal 'i Procedure which is in the following terms is attracted:

"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by Court of competent jurisdiction shall be reversed . or altered on appeal ot revision on account of any error, om1ss10n . or irregularity in the complaint, summons, warrant, ) . charge, proclamation, order, judgment or other pro-ceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned fail-ure of justice". If, therefore, cognizance is in fact taken, on police report vitiated by the breach of 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 miscarriage of justice. That an illegality committed in the course of investi-gation does not affect the competence and the juris-dictio11 of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor(1) and Lumbhar-dar Zutshi v. The King(2 ). 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 col-lection of the evidence. This distinction may have • 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 .J. fact been taken and the case has proceeded to termi-(1) A.I.R. i944 P.C. 73• (2) A.LR .. 1950 P.C. 26.

H, N. RiJhbud and lnder Singh v. The State ef Delhi Jagannadhadas J.

S.C.R. SUPREME COURT REPORTS

"4.,' vision itself allows an officer of lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of lower rank without such permission cannot be said to cause prejudice. ~ When Magistrate is approached for granting such • ~ permission he is expected to satisfy himself that there ~ are good and sufficient reasons for authorising an officer of lower rank to conduct the investigation. The granting of such permission is not to be treated by Magistrate as mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such breach 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 viola-tion and pass appropriate orders for such reinvestiga-tion as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the req11irements of section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the viola-• ti on of section 5 ( 4) of the Act has to be decided and the course to be adopted in these proceedings, deter-mined.The learned Special Judge before whom the objection as to the violation of section 5 ( 4) of the Act was taken took evidence as to the actual course of the investigation in these cases. In the cases out of which Criminal Appeals Nos. 96 and 97 of 1954 arise, the first information report which in each case was filed on 29-6-1949 was in terms on the basis of com-plaint filed by the Director of Administration and Co-ordination, Directorate of Industry and Supply. This disclosed information constituting offences in-cluding that under section 5(2) of the Act. The cases were hence registered under various sections includ-ing section 5(2), of the Act. The investigation that was called for on the basis of such first information report was to be by an officer contemplated under section 5( 4) of the Act. The charge-sheets in these two cases were filed on 11-8-1951 by Sub-Inspector

H. N. Rishbud and lnder Singh v. The State of Delhi Jagannadhadas J.

' [1]954 H. N. Rishbud and lnder Singh v. The State of Delk Jagannadhadas J.

:as 25 witnesses in the case. It appears further that in the course of this investigation it was found that the two appellants and another public servant were liable to be prosecuted under section 5(2) of the Act. Application was then made to the Magistrate by Bal-bir Singh for sanction being accorded to him under section 5 ( 4) of the Act and the same was given on '· 20-3-1951. The charge-sheet was filed by Balbir Singh on 15-11-1951. He admits that all the investi-gation by him excepting the filing of charge-sheet was prior to the obtaining the sanction of the Magis-trate for investigation. But since the investigation prior to the sanction was with reference to case registered under section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Tem-porary) Powers Act, 1946, that was perfectly valid. It is only when the material so collected disclosed the ·commission of an offence under section 5(2) of the Act by public servants, that any question of taking the sanction of the Magistrate for the investigation .arose. In such situation the continuance of such portion of the investigation as remained, as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate. We are, therefore, of the ·opinion that there has been no such defect in the in-vestigation in this case as to call for interference. In the result, therefore, Criminal Appeal No. 95 of 1954 is dismissed. Criminal Appeals Nos. 96 and 97 of 1954 are allowed with the direction that the Special Judge will take back the two cases out of which these :appeals arose on to his file and pass appropriate orders after reconsideration in the light of this judg-Criminal Appeal No. 106 of 1954. This is an appeal by special leave against com-mon order of the High Court of Punjab relating to Cases Nos. 19 to 25 of 1953 before the Special Judge, Delhi. It raises the same questions which have been disposed of by our judgment in Criminal Appeals Nos. 95 to 97 of 1954. Since the appeal is, in form, one

H. N. Rishbud and Inder Singh v. The State of Delhi JagannadhadaJ J,

1954 H. N. Rishbud and lnder Singh v. 1'he State ·of Delhi Jagannadhadas J.

1954 Decemher 20

against the order of the High Court refusing to grant stay of the proceedings then pen din o-, it is sufficient to dismiss this appeal with the obsen~'ation that it will be open to the appellants to raise the objections before the Special Judge.

SRI MONOHAR DAS MOHANTA

CHARU CHANDRA PAL AND OTHERS.

[MEHAR CHAND MAHAJAN C.J., BHAGWATI, JAGANNADHADAS, VENKATARAMA AYYAR and B. P. SINHA JJ.]

Lost Grant-Presumption of-lVhen such presumption does or does not arise-Legality of lost grant of Niskar from Mohunt-Plead-ing and proof-Findings of fact.

presumption of lost grant arises in favour of person who does not claim adversely to the o\vner but who on the other hand proves ancient and continued possession in assertion of title derived from the owner without any challenge and such possession and assertion cannot be accounted for except by referring to legal origin of the grant claimed.

But the presumption of lost grant is not an irrebuttable pre-su1nption of la\V and the court cannot presume grant where it is convinced of its non-existence by reason of legal i1npediment, as where the presu1nption of lost grant is claimed by fluctuating body of persons. Si1nilarly presun1ption of lost grant cannot arise when there is no person capable of making such gran.t or if the grant pleaded is illegal or beyond the powers of the granter.

presumption of lost grant by way of 1\iskar cannot be in1-puted to the Mohunt of an . .\sthal inasni.uch as he is legally incom-petent to make any Niskar grant.

When defendant who denies the title of the plaintiff in res-pect of any land, fails in that plea, he cannot fall back on the pre-sumption of lost grant from the very person whose title he has denied.

Findings of fact arrived at by courts should not be \'ague.

Attorney-General v. Simpson ([1901] 2 Ch. D. 671), Raja Braja Sunder Deb v. Mani Behara and others ([1951] S.C.R. 431), Barker v. Richardson ([1821] 4 B. & Al<l. 579), The Rochdale Canal Com-