1. This appeal has been filed by the State Government of Madhya Pradesh against the judgment of the Special Judge, Nagpur, acquitting the respondent Bhagirathi who was prosecuted for the offence Under Section 165-A, Penal Code for abetting the commission of an offence Under Section 161 'ibid' by sending a letter Ex. P-F to Rajbahadursingh (P.W. 2).
2. It is not disputed that Rajbahadursingh (P.W. 2) was the Chief Executive Officer of the Nagpur Janapada and was competent to employ teachers working in primary schools under the Janapada.
3. The prosecution case was that the respondent sent two letters (Ex. P-E and Ex, P-F), both dated 16-9-1952, to Raj Bahadur singh. The first letter (Ex. P-E) is the application of the respondent for appointment as a teacher in the Janapada Sabha. In the second letter (Ex. P-F) he offered to pay a bribe of Rs. 100 to Raj Bahadur singh if he provided him with a job of teacher ship. The respondent denied that he wrote or sent those two letters and claimed to be innocent.
4. It is not disputed that the investigation in this case was made by the- Sub-Inspector V. S. Mehta (P.W. 3). It was contended that the investigation by the Sub Inspector without being authorized by a Magistrate was contrary to the provisions of Section 5-A of the Prevention of Corruption Act, 1947, (2 of 1947). Therefore, the entire proceedings based on the report of the officer not competent to investigate must fail. This contention of the respondent was negatived by the trial Court. The trial Court happened the evidence of the handwriting expert Shri M. B. Dixit (P.W. 1) that both the letters (Ex. P-E and Ex. P-F) were written by the same person who wrote the letters Ex. P-I and Ex. P-J which were written by the respondent at the instance of the Sub-Inspector V. S. Mehta (P.W. 3). Accordingly it held that the letters in question (Ex. P-E and Ex, P-F) were written by the respondent himself. But the trial Court acquitted the respondent only on the ground that the prosecution did not establish whether the respondent had posted these letters or sent them to Raj Bahadur singh. It is contended on behalf of the State that the acquittal was wrong inasmuch as the provisions of Section 114, Evidence Act were overlooked by the trial Court,
5. The amended Section 5-A of the Prevention of Corruption Act (2 of 1947), which came into force on 12-8-1952, makes it clear that this particular offence could not be investigated by an officer subordinate to the rank of a Deputy Superintendent of Police unless he was authorised by a Magistrate of the First Class. It was pointed out by the Government Pleader that the attention of the District Magistrate was drawn to the above provision by the District Superintendent of Police by memorandum (Ex. P-L) dated 8-11-1952 to which the District Magistrate replied by memorandum (Ex. P-K) dated 2-12-1952 that steps be taken and a chalan be put up after completing the enquiry. This, he contends, amounts to the necessary authority contemplated Under Section 5-A. We are unable to accept this proposition as there is no clear authority given to the Sub-Inspector to investigate the offence.
6. The main question for consideration in this appeal is whether the failure to comply with the directions given in Section 5-A (c) of the Prevention of Corruption Act would vitiate the trial because the investigation was held by a Sub-Inspector of Police without the requisite authority.
7. The effect of want of authority to investigate was considered in 'Promod Chandra v. Rex : AIR1951All546 , where it was observed as follows:
Section 156 (2), Criminal P. C, is in terms wide enough to cover an investigation into an offence punishable Under Section 161 or Section 165, Penal Code, which is conducted by a police officer not authorised under the proviso to Section 3, Prevention of Corruption Act.
It was held that
The failure to comply with the proviso to Section 3, Prevention of Corruption Act, is therefore an irregularity falling within Section 156 (2), Criminal P. C, and accordingly the proceedings of the investigating officer cannot be called in question.
The Allahabad view was dissented from in 'Sudhir Kumar v. The State : AIR1953Cal226 , where it was held that
The failure to comply with the mandatory provisions of the proviso to Section 3, Prevention of Corruption Act is not a mere irregularity but an illegality, the effect of which is that the entire proceedings based on the charge-sheet reported by the officer who was not competent to investigate must fail and must be quashed.
The view of the learned Judges was that Section 156, Criminal P. C. is made inapplicable to investigation of an offence Under Section 161, Penal Code by the proviso to Section 3 of the Prevention of Corruption Act. (The proviso to Section 3 of the Act has now been substituted by the amended Section 5-A(c)).
8. The Allahabad High Court takes the view that an investigation by a police officer of an inferior rank not duly authorised cannot be called in question in view of Section 156(2), Criminal P. C, and has in effect no consequence on the prosecution. The Calcutta High Court on the other hand takes the extreme view that the whole prosecution based on the report of an officer not competent to investigate must fail and must be quashed.
9. The effect of non-compliance with the express provisions of law has been considered in several cases. In 'Abdul Rahman v. Emperor , the non-compliance was with respect to the provisions of Section 360, Criminal P. C. which enjoins that the deposition of a witness shall be read over to him as soon as it is completed in the presence of the accused, if in attendance, or his pleader. At the trial the depositions of witnesses were read over to them while the case otherwise proceeded, and the depositions of some of the witnesses were handed over to them to read to hem-selves. The High Court confirmed the conviction holding that the course pursued was merely an irregularity within Section 537 of the Code, and that as no failure of justice had been occasioned that section saved the conviction from being vitiated. On an appeal to the Privy Council, their Lordships observed as follows:
As there had been no actual or possible failure of justice the appeal failed whether the sections of the Code had or had not been properly applied. According to the well established practice of the Privy Council appeals in criminal cases are allowed only when it was shown that substantial and grave injustice had been done; the granting of special leave does not relieve an appellant of showing that that is the case.
10. In 'Kottaya v. Emperor' AIR 1947 PC 67 (D), there was a breach of the proviso to Section 162, Criminal P. C. as the accused was not supplied with the copies of the statements recorded by the Sub-Inspector Under Section 162, Criminal P. C. during the sessions trial when one of the principal witnesses was in the witness-box. Their Lordships held as follows:
When a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct the irregularity can be cured Under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. A trial, therefore, is valid notwithstanding the breach of Section 162.
11. In 'Tara Singh v. The State' : 2SCR729 , there was no proper compliance with the provisions of Section 342, Criminal P. C, by the Sessions Judge in examining the accused. The relevant portion of the observations made by Bose J. at p. 445 are as follows:
The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that : each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned.
12. In our view, the failure to comply with the mandatory provisions of Section 5-A (c) would not necessarily vitiate a trial as the omission of this type falls within the category of curable irregularities. The- question in each case depends upon whether1 prejudice has been occasioned or is likely to have been occasioned due to the non-compliance. The question whether the evidence has been elicited by an officer not authorised to investigate does not appear to have much bearing on the merits of the case, the decision of which rests entirely on the evidence appearing against the accused at the trial. It is, therefore, not right to regard the entire proceedings based on the charge-sheet reported by an officer who was not competent to investigate to be bad if the evidence tendered has been found to be uninfluenced by the investigation and independently leads to a particular conclusion. The order of acquittal in 'Babu Khan v. The State', Cri. Revn. No. 286 of 1951, D/- 14-8-1952 (Nag) (F) was based on the evidence tendered on merits during the trial, hence it was not considered necessary to examine the question now raised here.
13. In the present case, the only thing that the investigating officer did, was to obtain the specimen handwriting of the respondent for comparing it with the writing in the two letters (Ex. P-E and Ex. P-F). It cannot be said that die accused was in any way prejudiced during investigation or at the time of the trial. He denied to be the author of the two letters (Ex. P-E and P-F). It has been satisfactorily proved by the handwriting expert Shri M. B. Dixit (P, W. 1) that the respondent was the person who wrote these two letters. Raj Bahadur singh (P.W. 2) has proved that these two letters were received by him. There is presumption Under Section 114, Evidence Act that the letters were sent by the respondent to Raj Bahadur singh. In one of the letters (Ex. P-F) he has offered to pay a bribe of Rs. 100/- to Raj Bahadur singh who was the Chief Executive Officer, Janapada Sabha, Nagpur. He was the appointing authority of the subordinate staff in Janapada, especially of the teachers. The respondent is guilty of the offence Under Section 165-A, Penal Code, His acquittal is set aside and we convict him under the said section. Considering the extreme poverty of the respondent, we sentence him to pay a fine of Rs. 15/-; in default he shall undergo rigorous imprisonment for one month.