R.S. Bindra, J.C.
1. After the Special Judge. Manipur, Shri O. Thambal Singh, had taken cognizance of the case Under Sections 161 and 163 of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act, 1947, hereinafter called the Act, against H. Harideva Sarma, Satistical Officer, Government of Manipur, he directed, by his order dated 21st February, 1970, passed at the instance of the accused, that the Deputy Superintendent of Police or some other competent Police Officer should reinvestigate the case 'from the initial stage of investigation', and that until 'the submission of the charge-sheet or final report' the case shall be kept pending on his file. The State having felt aggrieved with the said directions of the Special Judge has come up in revision to this Court.
2. To appreciate the legal point in controversy between the parties the facts leading to the prosecution of Harideva Sarma may briefly be set out. At 10-15 a.m. on 2-1-1969 one Ph. Mulachandra Singh of Andro village made a report to Inspector M. Ibopishak Singh, Officer in charge of the Police Station, Imphal, that he would shortly pay Rs. 200/- to the accused as illegal gratification for the latter having given him the appointment as a Lower Division Clerk in his capacity as a member of the Departmental Promotion Committee. Ibopishak Singh entered that report in the General Diary of the Police station and thereafter hastened to the office of the accused. At about 10-50 a.m. Ibopishak Singh searched the person of the accused and allegedly recovered currency notes worth Rs. 200/. On getting back to the Police station with that money, Ibopishak Singh registered a case against Harideva Sarma on the basis of the facts in his personal knowledge and the report earlier made to him at 10-15 a. m. by Kulachandra Singh. That done, he approached the Deputy Superintendent of Police for undertaking the necessary investigations in the case. The Deputy Superintendent of Police took up the investigations and on their completion and after securing the sanction of the Administrator of Manipur for prosecution of the accused submitted a charge-sheet against him to the Special Judge.
3. When the accused put in appearance before the Special Judge on being summoned by the latter he raised two preliminary objections. Firstly, it was urged that before he could be prosecuted it was necessary that the sanction of the President of India, and not that of the Administrator of Manipur, should have been secured inasmuch as the President had appointed him as an Officer on Special Duty in connection with the National Sample Survey in ex-officio capacity. The second objection taken was that the major part of the investigation having been done by a Police Officer of the rank of Inspector there was obvious violation of the mandatory provisions of Section 5-A of the Act with the consequence that the Special Judge lacked jurisdiction to take cognizance of the case. Both the objections were opposed by the Prosecution. The learned Special Judge rejected the first objection on holding the same as without merit but allowed the other.
4. Shri Ibotombi Singh, the learned Government Advocate, very fairly conceded at the bar that if the whole or part of investigation has been done by an officer not authorised by Section 5-A of the Act and an objection to that effect is raised by the accused at the early stage of the trial, it is open to the Special Judge, after taking cognizance of the case, to suspend the proceedings and issue a direction to the competent Police officer to reinvestigate the case and re-submit the charge-sheet. However, he strenuously urged that such a course can be adopted only when it is practically feasible to reinvestigate the case wholly or in part, and added that if reinvestigation, in the peculiar circumstances of the case, cannot be undertaken, no direction to that effect can be given. The learned Government Advocate next contended that an invalidity or illegality committed during the course of investigation is curable Under Section 537, Cr.PC and that since in the present case the violation of Section 5-A of the Act related only to the recovery of the money by Inspector Ibopishak Singh from the person of the accused and that part of investigation cannot be restaged, the Special Judge went wrong in directing that the reinvestigation should be done right from the initial stage.
5. Shri Manisana Singh, appearing for the accused, urged, on the contrary, on the authority of : 1959CriLJ920 , the State of Madhya Pradesh v. Mubarak Ali, that the provisions of Section 5-A of the Act being obligatory any violation thereof can only be got over by staying the trial and directing de novo investigation to the extent the previous investigation had been done by an Officer not authorised by law.
6. The decision on the point at issue will turn on the interpretation of Section 5-A of the Act, the exact scope and the ambit of which were precisely defined in : 1955CriLJ526 . H. N. Rishbud v. State of Delhi, an authority which was relied upon by the learned Government Advocate as well as Shri Manisana Singh during the course of arguments in this Court to shore up their rival contentions. In substance it was held in that case that the provisions of Section 5-A are of mandatory nature, that an investigation conducted in violation thereof bears the stamp of illegality, and that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. It was observed further that the cognizance of a case taken on the basis of a Police report vitiated by the breach of a mandatory provision relating to investigation is only in the nature of error in a proceeding antecedent to the trial and that to such a situation Section 537, Criminal P.C. is attracted. The Supreme Court held further that a trial which follows in such circumstances cannot be quashed unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The Supreme Court clinched the point by stating that 'an illegality committed in the course of investigation does not affect competence and the -jurisdiction of the Court for trial'. Yet another proposition stated with precision by the Supreme Court was that when a breach of the mandatory provisions of Section 5-A 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 Act.' In para 10 of the report it was stated that when invalidity of the investigation comes to the knowledge of the Court at a sufficiently early stage, 'the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.'
7. The propositions reproduced above from the case of Rishbud were reaffirmed by the Supreme Court subsequently in the case of Mubarak Ali : 1959CriLJ920 (supra) and as such I need not excerpt any of the observations made therein if only to avoid repetition.
8. It is in the light of the principles reproduced above that the validity or otherwise of the direction given by the Special Judge for reinvestigation of the case from the initial stage has to be determined. Undoubtedly, the visit of Ibopishak i5ingh, the Inspector oi Police, to the office of the accused, the search of the person of the latter, and the alleged recovery of the money from him constituted steps in the investigation and that part of the investigation violated the mandatory provisions of Section 5-A of the Act. Therefore, it was within the legal competency of the Special Judge, when that violation was brought to his knowledge immediately the trial opened, to hear the parties for determining whether reinvestigation was called for and if so to what extent. Since the offending part of the investigation related only to two facts just outlined, namely, visit by Ibopishak Singh to the office of the accused and recovery of money from his person pursuant to a search, and since the first fact has already been reinvestigated by the Deputy Superintendent of Police and the second does not admit of being reinvestigated, I agree with the Government Advocate that the Special Judge should have refrained from directing reinvestigation and staying the trial. It was not denied at the bar that the Deputy Superintendent of Police had examined Inspector Ibopishak Singh during the course of investigation done by him, and so there was no point in directing reinvestigation of the fact pertaining to that Inspector's visit to the office of the accused. And since for obvious reasons the scene relating to search of the person of the accused and recovery of the money from him could not be restaged, reinvestigation of that incident was not a practical proposition. It is qua such part of the investigation that the Supreme Court observed twice in its judgment in the case of Rishbud that the Court may order such reinvestigation as the circumstances of an individual case may call for. There is no point in staying the trial and ordering reinvestigation when reinvestigation is not feasible or it will not yield any practical results. The right of the Special Judge to order reinvestigation in case there is violation of Section 5-A of the Act need not necessarily prevail with him in directing reinvestigation even if such a course is not likely to serve any useful purpose. Therefore, I have no alternative but to quash the direction given by the Special Judge for reinvestigation of the case right from the initial stage.
9. In the result, I allow the revision petition and on setting aside the impugned order direct the Special Judge to proceed with the trial. However, nothing said herein, I trust, will prejudice the mind of the Special Judge for or against the accused on merits of the case.