1. These six revision petitions have been filed by the six accused who have been tried of offences under Section 4(1)(b) of the Madras Prohibition Act find found guilty and. each of them was sentenced to undergo rigorous imprisonment for four months. The learned Additional Sessions Judge, Eluru, dismissed the appeals preferred by these accused. Hence these revision petitions have been filed by the accused.
2. The following facts appear from the record : On 5.6.1960 the Circle Inspector of Police (P.W. 2) accompanied by the Sub-Inspector of Pedapadu (P.W. 3), a Head Constable and two mediators viz., Gubbala Ramalingaswamy (P.W. 1) and Kandula Samuel (D.W. 1) conducted a raid to the Outskirts of the village Ponangi in Eluru Taluk The raiding party divided itself into three batches. When they came near Thammavari Kodu (Channel) all the three batches noticed simultaneously that the distillation of arrack was going on in, the inner side of the western bund. It may be mentioned that P.W. 2 (the Circle Inspector) led a batch; P.W. 1 and the Sub Inspector led another batch; and the Taluk Sub-Inspector led the third batch. The persons composing the three batches surrounded the accused when the accused were kindling fire. It is said that the stills of the accused were found dismantled at that time and that each of the six accused was operating a different still. The Police who thus raided noticed half-burnt fibre fuel. They seized the pots and vessels and also jaggery wash.
P.W. 2 the Circle Inspector, destroyed the wash after examining it. He also took the accused into custody and handed them, and the implements to the Sub-Inspector (P.W. 3). The mahazarnajna (Ex. P-1) was drafted at the tome of seizure of the articles and the same was attested by P.W. 1 and D.W. 1 These mediators were taken from Eluru by the Circle Inspector along with the police party which conducted the raid. It is said that P.W. 2 (the Circle Inspector) made efforts to get other mediators from Ponangi village, but be was unsuccessful. It is also in evidence that P.W. 2 did not wait till the Head Constable, who was sent to bring mediators, returned. P.W. 2, the Circle Inspector also followed to some distance the accused and P.W. 3, the Sub-Inspector, who was taking them, and then returned to Eluru on cycle. It appears that the information regarding the illicit distillation of arrack was received by the Circle Inspector (P.W. 2) and thereafter the intimation sent by the Circle Inspector reached P.W. 3, the Sub Inspector, at 5-30 A.M. on 5.6.1960. P.W. 3, the Sub-Inspector, has mentioned that intimation so received was to assist the Inspector in conducting the prohibition raid.
3. It is also necessary to notice that the police who arranged the raid left no note in the case diary of Pedapadu Police station; nor is this a case in which any report or information had been recorded. It is, therefore, plain that the raid has been organised by the police on their own knowledge or information or otherwise made available to the police. It is, however, the case for the prosecution that after the raid was so conducted and the accused were taken into custody and the' articles were seized under the mahazar (Ex. P-1) that mahazar (Ex. P-1) has been treated as the first information report and on the strength of the same, the Sub-Inspector of Pedapadu Police station (P.W. 3) thereafter registered Crime Nos. 53 to 58 of 1960 and informed the same to the concerned Magistrate. P.W. 2, the Circle Inspector deposed that the Sub-Inspector has thus investigated into the case and filed, the charge-sheet.
4. Mr. Gangadhara Rao for the petitioners contended before me that the evidence as to the place where the accused were apprehended and the articles were seized is discrepant. Secondly he urged that the mediators or attestors to the mahazar (Ex. P-1) did not come from the locality and that, therefore, there has been a violation of Section 108 of the Criminal Procedure Code; and (thirdly the trial is vitiated as P.W. 2, the Circle Inspector, and another one of the raiding party viz., the Striking Force Sub-Inspector, who were officers of police and had taken part in the investigation of the offence, Conducted the prosecution. It may at once be pointed out that the first two points taken by the learned Counsel lack, in my view, any substance. It is fairly certain from die evidence that the accused were apprehended and the articles used in the preparation of illicit arrack were seized on the inner side of the western bund of Thammavari kodu. As regards the attestors to Ex. P-1, it cannot be said that the raiding party committed anything illegal in taking mediators when especially1 they knew that the search had to be made not in the village but in its outskirts where it would not be possible to secure mediators easily. Further, it has not been shown that the accused are thereby prejudiced.
The third point concerning the conduct of the prosecution by the Circle Inspector requires indeed to be dealt with in particular and will, therefore, be considered in detail hereunder. However, yet another argument of the leaned Counsel that the determination of six cases by the appellate Court by a common judgment has rendered the procedure illegal needs to be mentioned only to be rejected; for, tire trial Court, it may be served, dealt with the case of each accused separately, although it is found, that the evidence in each of these cases is stereotyped. Therefore, a consideration of these cases in a common judgment by the appellate Court was not in any way calculated to cause any hardship to the accused; and much less could it be said that the case of the accused suffered by reason of any prejudice thereby caused to them.
5. In answer to the argument of the learned Counsel for the petitioners that the trial of the accused is hit at by the violation of the provisions of Sub-section (4) of Section 495 Cr.P.C., the learned Public Prosecutor argued that the raiding party did not embark upon any 'investigation' as such and the 'investigation' into the crime should be taken to have commenced! only when the Sub-Inspector (P.W. 3) registered, the crimes and sent the reports to the concerned Magistrate and that therefore the part played by the Circle Inspector, or the Sub-Inspector of the striking force, cannot be in the course of investigation of the offence with respect to which the accused were prosecuted and that there could be no bar to any one of these conducting the prosecution. It is urged that no disqualification attached, to these police officers so as to disable them from conducting the prosecution. In support of this argument, it is contended, by the learned Public Prosecutor that instances of actions taken on suspicions roused or on the information which the police had of their own accord or from the informant or otherwise and the raids conducted to detect offences stand on a different footing and apart from 'investigation' of ft crime. It is further urged that it is only that officer of police who registers the crime and sends the report to the concerned Magistrate that should be considered as investigating into the offence and that during the time of raiding or detection of the offence, the other police officers concerned in the raid or detection are not at all prohibited from conducting the prosecution by Sub-section (4) of Section 495 Cr.P.C.
6.However in fairness to the learned Public Prosecutor, it must be mentioned that the argument so put forward doss not ignore the effect of the following decisions which clearly bring out that any police officer taking part in the investigation of the offence with respect to which the accused is being prosecuted, is prohibited from conducting the prosecution and that the violation of this procedure vitiates the trial altogether. In a case for possession of ganja which was recovered from the house of the accused, it was found that the Sub-Inspector who investigated the case conducted the trial : In re Kadikachalam 1955-2 Mad LJ 576 dealing with the objection raised based upon Sub-section (4) of Section 495 Cr.P.C., Somasundaram, J. held that the entire proceedings before the Count became lull and void, and that conclusion is supported by the authority found in the decision of the Division Bench consisting of Govinda Menon and Basheer Ahmed Sayeed, JJ. in Sellamuthu Padayachi v. State : AIR1954Mad318 .
A later decision of this High Court reported in In re Madar Sahib 1956 Andh L.T. 185 followed both the decisions of the Madras High Court an d held, that the dicta in 1955-2 Mad LJ 578 is terms applies to case arising under the Madras Prohibition Act, Manohar Pershad, J., in In re, Dusari Veeraraju : AIR1959AP29 dealt with a case arising under the Madras Prohibition Act and where Section raid has been conducted. He held the view that the conduct of the case by the investigating officer has prejudiced the accused and that, therefore, the trial is hit by Sub-section (4) of Section 495, Cri.P.C. No doubt, in all these cases, no dispute has been raised as regards the conduct of the trial by the officer of police who investigated it. But it may be pointed out that in the instant case the contest concerns the question whether, in the circumstances of this case, the Circle Inspector could be said to have taken any part in the investigation of the offences with which the accused are charged.
7. The learned Public Prosecutor relied upon the decisions in N. Anandayya v. Emperor 1914 Mad WN 382 : AIR 1915 Mad 312, the public Prosecutor v. Chidambaram 55 Mad LJ 231 : AIR 1928 Mad 791 and In re, Mylaswami Chetty AIR 1939 Mad 66 and argued that it is not unknown that instances where the activities of the police concerned the verification of an information got by them or the ascertainment of the truth of a telegram or further shout the news of shooting, which did not exclude an accident are not taken as the starting of an investigation, but that either the recording of an information under Section 151, Cri.P.C. or the despatch of a report as required under Section 157, Cri.P.C. should be considered as a condition precedent to the starting of the investigation into an offence. An examination into these authorities relied upon by the prosecution amply supports the view that the circumstances which lead an officer of police to bestir himself into activity should be looked into to find out whether the police officer is investigating into the offence, or is only ascertaining further with a view to verify the information available to him.
In 1914 Mad WN 382 : AIR 1915 Mad 312, the Division Bench of the Madras High Court have, no doubt, indicated that the fact that the Station House Officer of Guidivada, (P.W. 4 therein) did not send an occurrence report to the Magistrate and thus avoided taking the essential preliminary steps to the commencement of an investigation is indicative that that police officer did not start an investigation. In this view and also having regard to the fact that a police officer is not bereft of the discretionary power to take action or not and could decide upon the course to adopt, held that it is within the competence of the officer of police to decide upon taking the preliminary or informal inquiries to find out whether there is anything in the information so as to render a formal investigation desirable only later on. That Division Bench therefore ruled that 'it can hardly he contended that every inquiry which a police officer makes must necessarily be an investigation tinder Section 151'. The possibility, therefore, of the police officer proceeding to learn more about the information he has, without at the same time investigating into the offence, has not thus been ruled out. But it looks to me that such a thing should be confined to the preliminary or informal inquiries which would be followed by an investigation if necessary.
In 55 Mad LJ 231 : AIR 1928 Mad 791 which is a case after the receipt of a telegram, another Division Bench of the Madras High Court went to the extent of remarking that a police officer will be acting in excess of his powers in taking action under Section 157, Cri.P.C. on the receipt of a mere telegram disclosing the commission of a cognizable offence; for, in its view, a telegram stood in no better position than a village gossip. Thus, that decision held, in the particular circumstances of that case, that no investigation had been embarked upon. The case in AIR 1939 Mad 66 concerns with the activities of the police officer on the receipt of an information in regard to a shooting incident. There, a Sub-Inspector of Police on receiving information of a shooting case from a constable, entered the information in his diary and proceeded to enquire into the matter. He thereafter took the statement from a witness; and the question arose whether this statement recorded by the Sub-Inspector was in the course of an investigation into an offence. It was decided that that was a question of fact depending upon the circumstances of each case. This line of decisions is clearly intelligible in that it is made clear that while an investigation may start with the activity of a police officer on the receipt of the information regarding the commission of a cognizable offence, instances are not wanting, depending upon the facts, in which the police officer may get active without starting an investigation into the offence.
8. t may not be inappropriate if a decision of the Privy Council is noticed at this stage. The pronouncement of the Judicial Committee in Emperor v. Nazir Ahmad AIR 1945 PC 18 lends support to the view that the receipt or recording of an information report is not a condition precedent to die setting in motion of a criminal investigation. The Judicial Committee goes on to say as an implication of this the following at p. 20.
No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the Police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation, into the truth of the matters alleged. Section 157, Criminal Procedure Code, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed shall proceed to investigate the facts and circumstances, supports this view.
9. It becomes therefore clear that not only informal and preliminary inquiries could be started by the police of their own accord, but an investigation also could be started when credible though informal intelligence of the offence has reached the police, and that again what it is that the officer of the police is about or making would thus become merely a question of fact. In my view, it is not possible to gather from the state f law as found in the decided cases or even on a construction of Section 157, Cri.P.C. that the sending of a report to the concerned Magistrate is a necessary condition which ought to precede the starting of an investigation, by a police officer. Sub-section (1) of Section 157, Cri.P.C. is in the following terms:
(1) If from information received or otherwise, an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order prescribe in this behalf to proceed, to the spot, to investigate the facts and circumstances of the case, and if necessary, to take measures for the discovery and arrest of the offender.
A proper reading of this clause would show what the police officer has t0 do when he suspects the commission of an offence which he is empowered to investigate under Section 156 Cr.P.C. and does not, in my view, prescribe the conditions for starting the investigation or specify the conditions which ought to precede an investigation. There is nothing in the decided cases already referred to going against this construction on the language of this section. I am, therefore, unable to accede to the contention of the learned Public Prosecutor that the sending of a report to the Magistrate concerned is a sine qua non for the commencement of an investigation, by a police officer when he suspects that an offence has been committed.
10. It may also be mentioned that it is now fairly clear from the decisions of the Supreme Court reported in H.N Rishbud v. State of Delhi : 1955CriLJ526 and that contained in the State of Madhya Pradesh v. Mubarak Ali : 1959CriLJ920 what an investigation consists of. They have been enumerated clearly and in the case of offences coining under the Prevention of Corruption' Act, the laying of the trap and the recovery of the money with which the bribe has been made and the incidental proceedings leading to the laying of the charge sheet are steps in investigation. While so, it is rather difficult to have to distinguish the activities of a police officer in raiding places, where there is distillation of illicit liquor or the apprehension of the accused in the act of distillation or the seizure of articles with which the operations of distillation are carried out, as constituting only preliminary or informal inquiries and not steps in investigation.
It looks to me that in cases where information is given that illicit distillation is being carried on in a particular place or by a group of persons, it may be that the police set cut to find out whether the information available with them is correct. But the further steps of seizure of the implements or instruments employed or used in manufacturing liquor or apprehension by the police officer of the accused, could not be said to be again in the nature of preliminary or informal inquiry. At that point, when articles are recovered or seized or persons are arrested, it cannot but be said that the investigation into the offence has started. To my mind, it does not also appear that the action so taken by the police officer is because he suspects an offence having been committed, but on the other hand, it must be taken that on an information available to the police officer and on verification, he has thereafter taken definite steps in investigation of the offence. I am, therefore, unable to find force in the contention of the learned Public Prosecutor that the arrest or seizure could be said to be in pursuance of the powers conferred under Section 54 or Section 550, Criminal Procedure Code.
11. Having regard therefore that in a prohibition case the seizure of the articles or the arrest of the accused would start the investigation, it cannot but be held that any officer who has a part in such an investigation would undoubtedly be precluded from conducting any prosecution for the same offence. This position is, as has been pointed out already, unassailable, especially having regard to the language of Sub-section (4) of Section 495, Cri.P.C. find the authority of the decisions which support that view.
12. But yet another point of nicety which, according to the learned Public Prosecutor distinguishes the instant case is stated to be the tact that while P.W. 2 the Circle Inspector took part only in conducting the raid, P.W. 3 the Sub-Inspector later on registered the eases and sent the reports to the concerned Magistrate, and that it is the Sub-Inspector alone that could be said to have started, the investigation while P.W. 2 should be said to have not taken part in that investigation. But J made it already clear that the police officer who wanted to conduct the raid with a view to ascertain the truth of the information, should be taken to have started investigation at the time when the seizure of the articles was effected or the arrest of the accused was made. Therefore it follows that further steps token by that police officer should have been only in pursuance of the investigation. It is also clear from the deposition of P.W. 2 that he was active as ho was moving force in the investigation Of the offence and that he did everything, short of registering the crime and sending the report to the Magistrate concerned. Having regard to this state of affairs revealed by the particular facts of this case, it looks to me that it is not possible to hold that the Circle Inspector (P.W. 2) had not taken a part in investigation of the offences with which &e; accused have been charged. If thereafter the same Circle Inspector (P.W. 2) had conducted the prosecution, undoubtedly the trial should be considered as vitiated.
13. It would follow that the convictions of the accused and the sentences imposed on them by reason of such trials cannot be sustained. Though the normal course while setting aside the convictions and sentences imposed on these accused is to order a retrial, I do not consider that in view of the inconvenience already caused by the illegal trials, the accused should be again put on their trial. In this view, the petitioners are acquitted of the offences with which they were charged. In the result, these revision petitions are allowed.