Constable Ram Nath vs State of Punjab

Surinder Singh, J.—A case under sections 5 (2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and 161, Indian Penal Code, was registered against the petitioner Constable Ram Nath, on the basis or First Information Report No. 141, dated May 5, 1976, lodged at Police Station Civil Lines, Amritsar. The First Information Report was registered on the basis of a statement made by Gurdial Singh about the demand made by the petitioner for the payment to him of Rs. 30/- as illegal gratification. As a follow-up action to the above statement, Inspector Harbhajan Singh of the Vigilance Bureau recorded a note at 10.30 a.m. on the same day that he along with some other members of the Police party were proceeding for the raid which was arranged to nab the petitioner. It is also mentioned in this note that the Superintendent of Police had not come to the office so far and if recourse to the procedure prescribed under Rule 16.38 (1) of the Punjab Police Rules (hereinafter called the Rules) was to be taken, it would cause delay in the matter. The Investigating Officer, therefore, forwarded a copy of the statement of Gurdial Singh along with his report to Police Station Civil Lines, Amritsar, for registration of the case and himself proceeded with the Police Party for the raid. It is not disputed that after the incident, the petitioner was sent up for trial before the Special Judge who has framed a charge against him under sections 5 (1) (d) of the Act and 161 Indian Penal Code. The present petition was then filed for quashing the aforesaid charge and all the proceedings thereafter on the ground that the investigation having been carried out without obtaining the prior sanction of the District Magistrate as contemplated by Rule 16.38 (1) of the Rules, the trial of the petitioner was vitiated.

Before considering the legality of the investigation, it may be mentioned here that there is no dispute in regard to the that before proceeding for the raid, Inspector Harbhajan Singh did not obtain the requisite sanction of the District Magistrate. In this situation, all that is required to be decided is as to whether the non-obtaining of the sanction is fatal to the case or not. Without referring to a Jot of case law, it may suffice to say that a Full Bench of this Court in Raj Kumar Assistant Sub Inspector v. The State of Punjab 1976 C.L.R. (P&H.) 39, held unanimously that Rule 1638(1) of the Rules is mandatory in character and the evidence collected in an investigation held in derogation of this rule cannot be used against a Police Officer in a criminal prosecution. It was further held that where the breach of the mandatory provision is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and the extent of the violation and pass appropriate orders for such re-investigation as may be called for. In the wake of this authority, all that the learned Assistant Advocate-General is able to contend is that the sanction was obtained in the present case very soon after the completion of the raid and that the irregularity in this behalf if any, is curable u/s 465, Code of Criminal Procedure. There is no substance in this contention. From the contents of the report of the Investigating Officer which is recorded on the statement of the complainant, it is apparent that the Investigating Officer was very much alive to the mandatory provisions of Rule 16.38 of the Rules. The mere fact that the Superintendent of Police was not available in his office at that time, would not invest the officer with authority to by-pass the mandatory procedure prescribed under the Rule. If the Investigating Officers are allowed to nullify the salutary Rule on such flimsy grounds as the mere absence of the Superintendent of Police from the office, the very purpose of enacting the Rule would be frustrated. The following observations of the Full Bench are very material in this regard:--

The object of rule 16.38 appears to be to protect public rights from being trampled upon by police officers investigating into offences alleged to have been committed by their own subordinates and also to protect such subordinates against prejudices from which their superiors might suffer in relation to them.

It is also apparent that present is not a case where the provisions of section 465, Code of Criminal Procedure, can be invoked in favour of the prosecution. As already noticed, the Investigating Officer was very much alive to the prohibition from investigation except by obtaining the necessary sanction of the District Magistrate and if in spite of this knowledge he has proceeded to embark upon the investigation, the prosecution cannot later on be heard for condonation of the clear illegality by taking shelter u/s 465, Code of Criminal Procedure.

In regard to the question as to whether the conduct of the raid falls within the definition of the word "investigation", there is hardly any doubt about the same. "Investigation" has been defined under the Code of Criminal Procedure, to include all proceedings for the collection of evidence conducted by a Police Officer. The alleged demand made by the petitioner for illegal gratification was in itself an offence and for the investigation of the said offence, if a raid is conducted and in consequence of such a raid any recovery is made, all such proceedings would fall within the purview of investigation. Indeed, the stand taken up on behalf of the State is that the statements of the witnesses were recorded after obtaining the formal sanction of the District Magistrate. This fact is, however, not conceded by the learned counsel for the petitioner. Be that as it may, it is obvious that all proceedings carried out by the Investigating Officer before obtaining the formal sanction of the District Magistrate could not have been taken into consideration for the purpose of deciding whether a charge is to be framed against the petitioner or not. The charge as framed at present cannot, therefore, be sustained and the same is quashed. The case is remanded to the Special Judge with the direction that he may consider the question regarding the framing of the charge only on the basis of the material collected by the prosecution after the formal sanction for investigation was granted by the District Magistrate and also to protect such subordinates against prejudices from which their superiors might suffer in relation to them.

It is also apparent that present is not a case where the provisions of section 465, Code of Criminal Procedure, can be invoked in favour of the prosecution. As already noticed, the Investigating Officer was very much alive to the prohibition from investigation except by obtaining the necessary sanction of the District Magistrate and if in spite of this knowledge he has proceeded to embark upon the investigation, the prosecution cannot later on be heard for condonation of the clear illegality by taking shelter u/s 465, Code of Criminal Procedure.

In regard to the question as to whether the conduct of the raid falls within the definition of the word "investigation", there is hardly any doubt about the same. "Investigation" has been defined under the Code of Criminal Procedure, to include all proceedings for the collection of evidence conducted by a Police Officer. The alleged demand made by the petitioner for illegal gratification was in itself an offence and for the investigation of the said offence, if a raid is conducted and in consequence of such a raid any recovery is made, all such proceedings would fall within the purview of investigation. Indeed, the stand taken up on behalf of the State is that the statements of the witnesses were recorded after obtaining the formal sanction of the District Magistrate. This fact is, however, not conceded by the learned counsel for the petitioner. Be that as it may, it is obvious that all proceedings carried out by the Investigating Officer before obtaining the formal sanction of the District Magistrate could not have been taken into consideration for the purpose of deciding whether a charge is to be framed against the petitioner or not. The charge as framed at present cannot, therefore, be sustained and the same is quashed. The case is remanded to the Special Judge with the direction that he may consider the question regarding the framing of the charge only on the basis of the material collected by the prosecution after the formal sanction for investigation was granted by the District Magistrate.