1. In this Reference to a Full Bench, we find It necessary to formulate the Questions arising out of the facts ourselves, inasmuch as they have not been formulated in the Order of Reference. The questions which do arise may be stated in the following form:
(1) Whether when a Police Officer belowthe rank of a Deputy Superintendent of Policeinvestigates an offence under Section 120B, read withSection 420, Penal Code and Section 5(2), Prevention ofCorruption Act of 1947 without complying withthe provisions of Section 5(4) (now Section 5A) of the latter Act, such failure would vitiate the entire proceedings in Court based on the charge-sheet submitted by the Investigating Officer; And
2. Was the case of 'Sudhir Kumar v. The State', : AIR1953Cal226 , in so far as it decided that the entire proceedings in Court would be vitiated in such circumstances, rightly decided?
2. Since the reference was made, the identical question has been decided by the Supreme-Court and we are therefore relieved of the necessity of trying to find an answer to the question for ourselves. In view of the decision of their Lordships in the case of 'H. N. Rishbud v. State of Delhi', (S) : 1955CriLJ526 , the answer to the first question must be in the negative.
3. The second question is consequential The answer to that question must, therefore, be also in the negative.
4. Since this is a Reference in a criminal matter arising out of a Revision Case, the whole case has been referred to the Full Bench and we have not only to answer the questions referred or arising out of the facts, but have also to make the final order in the Revision Case itself.
It would appear from the decision of the Supreme Court, to which I have just referred-that their Lordships, while holding that a valid and legal police report could not be regarded as the foundation of the jurisdiction of a Court to take cognizance of an offence, added, at the same time, that it did not follow that the invalidity of the investigation was to be completely ignored by the Court during trial. In what manner the illegality of the investigation could be called In aid, either to obtain a reversal of the conviction when a conviction was made or to obtain an order for reinvestigation, if the case was still pending was also explained by their Lordships.
We are not directly concerned with a case-where the trial has ended, but for the sake of completeness, I might refer to what their Lordships have said with regard to such a case. 'Where the cognizance of the case,' observed their Lordships,
'has in fact been taken and the case has proceeded to termination, the Invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.'
All that we need point out is that their Lordships seem to contemplate that even after a conviction has been made on the evidence given in Court, there may be cases where the accused will be able to satisfy the Court that some miscarriage of justice had yet been caused to him by reason of the very invalidity of the precedent investigation.
5. The other type of cases, which their Lordships considered in their judgment, are cases where the trial has not ended but is proceeding. With regard to cases of that type, their Lordships observed as follows:
'When the breach of such a mandatory provision is brought 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.'
'When the attention of the Court is called to such an illegality at a very early stage, it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage, but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537, Cr. P. C., of making out that such an error has in fact occasioned a failure of justice.'
'In our opinion, therefore, when such a 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 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.'
6. It would be noticed that in the passages which I have quoted, their Lordships always emphasise the condition that the question regarding the invalidity of the precedent investigation must be raised at an early stage. They qualify the adjective 'early' once by the adverb 'sufficiently' and again by the adverb 'very' but there can be no doubt that what their Lordships had in mind was a stage not far removed from the stage when the Magistrate took cognizance.
That intention of their Lordships, to my mind would appear from the first of the passages I have quoted, where their Lordships say that the Court would have to take the necessary steps to get the illegality cured 'while not declining cognizance.' It is clear that the stage contemplated is a stage when the question of taking or declining cognizance is still relevant.
In the two cases where their Lordships directed the Special Judge to take the cases to his file and pass appropriate orders, after reconsideration in the light of their judgment, no evidence at all had been taken except evidence as regards the nature of the investigation which had been held.
7. In the present case, the investigation was held by two Police Officers, both of whom were only Inspectors in rank and neither of whom had obtained any prior permission from a competent Magistrate, as required by the Act.
The matter for decision before us is thus whether it can be said of the present case that the objection to the validity of the investigation was taken at a sufficiently early stage within the meaning of the judgment of the Supreme Court and that, therefore, the same order as was made in the two cases in which appeals were allowed ought to be made or whether the objection was a belated one and, therefore, no reconsideration of the case for a decision as to whether any reinvestigation should be ordered, can properly be directed.
8. The facts are that as many as twenty-three prosecution witnesses were examined before an interim order made by this Court stayed further proceedings. It would appear from 'the cross-examination of the very first witness for the prosecution, who was a Police Officer who had taken over the investigation from another Officer, that the defence asked him what his status was at the time when he had held the investigation.
That question could have been asked only with the view to eliciting from the Police Officer the fact that at the relevant time, he held a rank below that of a Deputy Superintendent of Police and then urging, on the basis of the information elicited, that if no permission from the appropriate Magistrate had been taken, the entire investigation must be condemned as invalid. The first witness was examined on 11-8-1953 and the application to this Court was not made till 10-5-1954.
The charge, which in this case was a charge with one head, was framed against the petitioner as also three other persons who are public servants on 15-4-1954. It does not appear from the Order Sheet that either on that date or on any earlier occasion or indeed at any time before moving this Court on 10-5-1954, the accused had taken any objection to the validity of the investigation before the Special Judge.
The petitioner, however, states in para 7 of his petition that an objection to the effect that failure to comply with the provisions of Section 5(4), Prevention of Corruption Act had rendered the whole trial illegal, had been taken on the 29th and the 30th of March, 1954, which had been fixed for the hearing of arguments. Assuming that an objection was taken on the two dates mentioned, we are still unable to hold that it was taken at an early stage, or a very early stage or a sufficiently early stage, within the meaning of the rule laid down by their Lordships of the Supreme Court.
As I have already pointed out, as many as twenty-three witnesses have already been examined and it is on the evidence of those witnesses that the charge has been framed. We do not think, particularly in view of the information elicited from Prosecution Witness No. 1 as long ago as on 11-8-1953 that the petitioner can be allowed to have the benefit of a reinvestigation if, before he took any objection to the validity of the investigation, he waited for as many as seven or eight months. We are not of opinion that the present case can properly be said to come within the rule laid down by the Supreme Court.
9. For the reasons given above, the two questions of law arising out of the facts of the case are answered in the sense indicated above As for the Revision Case itself, the Rule is discharged.
K.C. Das Gupta, J.
10. I agree.
11. I agree.
J.P. Mitter, J.
12. I agree.
13. I agree.