Kothandapillai vs State by Deputy Supdt. of Police, Tindivanam

M.N. Moorthy, J.—This is a petition under S. 482, Crl. P.C. to quash the proceedings pending in Special Case No. 3 of 1980 against the

petitioner, on the file of the Additional Chief Judicial Magistrate and Special Judge Cuddalore.

The Petition arises under the following circumstances : Mr. Jothilingam is the Sub-Inspector of Police, Olakkur Police Station, South Arcot

District. On 7th September, 1980, when he was in the police station attending to his work, at about 10 a.m., the petitioner herein came to the

police station and gave a petition against one Paramasivan, a relation of his, as he had cut some palmyrah trees from his land at Annambakkam.

Along with the petition, the petitioner also gave Rs. 50 in denomination of five ten rupee notes as bribe amount to the Sub-Inspector of Police to

do favour for him. The said notes were seized under a mahazar, attested by two witnesses, by the Sub Inspector. A case was registered in Crime

No. 258 of 1980 under S. 171(E), I.P.C., in the Olakkur Police Station. The petitioner was arrested, searched and kept up in the lock-up. Later,

he was produced before the Sub-Divisional Judicial Magistrate, Villupuram, for remand. After the Sub-Inspector completed the investigation by

recording statements from the witnesses, a charge-sheet was filed before the Sub Divisional Judicial Magistrate, Villupuram.

As the offence involved is one under S. 165A, I.P.C.. S. 5A of the Prevention of Corruption Act is applicable. The case was taken up by the

Deputy Superintendent of Police, Tindivanam, who made the re-investigation, as he is empowered to investigate under the provisions of the

Prevention of Corruption Act. After completion of the investigation, the Deputy Superintendent of Police filed an amended charge-sheet against the

petitioner for an offence under S. 165A, I.P.C., on the file of the learned Chief Judicial Magistrate and Special Judge, Cuddalore. The present

petition is filed by the petitioner to quash the said proceedings pending on the amended charge-sheet.

According to the petitioner, the money which he was having with him on 7th September, 1980, when he went to the Sub-Inspector of Police to

give a petition, was forcibly seized from him and there was no offer of bribe to the Sub-Inspector. The Sub-Inspector wanted the petitioner to give

Rs. 500 and he was enraged when the petitioner said that he had only Rs. 50 and showed it to him. The petitioner told the Sub-Inspector that he

did not expect to be called upon to pay any bribe and that he had not come prepared. This infuriated the Sub-Inspector and he snatched the said

money from the hands of the petitioner and fabricated a case so as to make it appear that a bribe was offered by the petitioner to him. The Sub-

Inspector, taking advantage of his position, arrested the petitioner, prepared a mahazar and investigated the case.

The version as put forward by the petitioner as to what transpired on 7th September, 1980 in the police station does not stand a moment''s

scrutiny. If the proceedings were to be quashed on this version alone, I would not have hesitated to dismiss this petition. But however, there are

other factors for consideration arising in this petition. The Sub-Inspector of Police is not authorised under S. 5A of the Prevention of on Corruption

Act to investigate an offence punishable under S. 165A, I.P.C. without the order of a Presidency Magistrate or a Magistrate of the First Class, as

the case may be, or make any arrest therefore without a warrant. In this case, realising that the investigation conducted by the Sub-Inspector is not

in accordance with law, the Deputy Superintendent of Police, Tindivanam, re-investigated the case and filed an amended charge sheet, against the

petitioner, as he is a competent officer within the provisions of the Prevention of Corruption Act.

The learned Public Prosecutor contends that even though the original investigation by the Sub-Inspector is not in accordance with law, the

subsequent investigation by the Deputy Superintendent of Police is in order and the proceeding should be allowed to be continued against the

petitioner. In support of his contention, he brought to my notice a decision of this Court, in C.V. Ranganathan v. State by Deputy Superintendent

of Police, Vigilance Cell, High Court, Madras 1978 L.W. CrI. 85 wherein Paul, J. made the following observations:

It is well settled that an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial,

and where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation

does not vitiate the result unless miscarriage of justice has been caused thereby; and where any breach of the mandatory provisions relating to

investigation 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 re-investigation as may be called for, wholly or partly, and by such officer as it considers appropriate with

reference to the requirements of S. 5A of the Prevention of Corruption (Second Amendment) Act, 1952.

Next, my attention was drawn by the Public Prosecutor to the decision in State Vs. Shri Hanjabam Harideva Sarma, wherein the learned Judge

held, where search and seizure is made by an officer not authorised under S. 5A of the Prevention of Corruption Act and further investigation is

made by a competent Officer, the Courts will not order search and seizure again. In other words, re-investigation by a competent Officer is not

barred.

The learned Public Prosecutor also drew my attention to a case of our High Court reported in Pakkirisamy and another, In re 1970 L.W. (Crl.)

11 wherein K.N. Muialiyar, J. observed that if, cognizance is taken on a police report vitiated by the breach of a mandatory provision relating to

investigation, there can be no doubt that the result of the trial which follows it cannot be set aside, unless the illegality in the investigation can be

shown to have brought about a miscarriage of justice.

Finally, the learned Public Prosecutor relied on the decision in H.N. Rishbud and Inder Singh Vs. The State of Delhi, wherein their Lordships of

the Supreme Court held that S. 5A of the Prevention of Corruption Act is of mandatory nature, that an investigation conducted in violation thereof

is illegal and that a defect or illegality, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.

Cognizance of the case taken on the basis of the police report vitiated by the breach of a mandatory provision relating to investigation is a curable

error under S. 537, Cr. P.C. The Supreme Court further held that the trial which followed on a defective or an illegal investigation cannot be

quashed unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. An illegality committed in the course of

investigation does not affect the competence and the jurisdiction of the court for trial. When the nature of the investigation is brought to the notice

of the court, the court has to pass appropriate orders for re-investigation, as may be called for, wholly or partly, by such officer as it considers

appropriate with reference to the requirement of S. 5A of the Act. Necessary steps have to be taken to get the illegality cured and the defect

rectified by ordering such re-investigation as the circumstances of the individual case may call for.

It is not disputed that the first investigation in the instant case by the Sub-Inspector is not in accordance with the mandatory provisions of the

Act. The result of a criminal case does not depend on the validity or otherwise of the investigation, for, an investigation is nothing but to collect

evidence to prove the commission of a crime. If the investigation is not above board or suspect, it cannot escape the scrutiny of the court while

determining the correctness or otherwise of the charge. Therefore, an unauthorized investigation has little or no bearing on the merits of a given

case the acquittal or conviction depends entirely on the evidence let in against the accused at the trial. In the view, I hold, even if the charge-sheet is

filed by not a competent Officer, after investigation, it may not be bad, for, illegality committed in the course of investigation does not per se vitiate

the trial, unless of course, such an investigation has resulted in a miscarriage of justice. In the instant case, there is an infraction of the provision of

S. 5A of the Prevention of Corruption Act, as the investigation originally made by the Sub-Inspector is bad in law. But, it will not vitiate the re-

investigation made by the Deputy Superintendent of Police and no prejudice can be said to have been caused to the petitioner. I am not inclined to

stop the proceedings against the petitioner on this score.

Apart from the facts aforementioned, the charge-sheet filed by the Deputy Superintendent of Police was received by the Additional Chief

Judicial Magistrate and Special Judge, Cuddalore, on 4th October, 1980. After the case was re-investigated and charge-sheet was filed by the

Deputy Superintendent of Police and after documents were given to the petitioner under S. 207, Crl. P.C. the case was adjourned from time to

time for the presence of the petitioner in Court. A non-bailable warrant was also issued against him. In spite of it, the petitioner was not able to be

brought to court by the Police. The non-bailable warrant was lying idle with the Police. The learned Special Judge was constrained to make a note

in the diary extract of the case that the police are not evincing any interest in the case. The lethargic attitude of the prosecution agency concerned in

the case, to say the least, is unfortunate. Apart from the existence of a prima facie case, the court has to see if there are grounds for thinking that a

protracted prosecution proceeding is necessary in the interest of justice. In the instant case, even though I am not in a position to say that there is

not a prima facie case against the petitioner, I do not think that the interests of justice require the proceedings to be continued against the petitioner,

especially taking into consideration the ineptitude of the prosecution. In the result, the petition is allowed. The proceedings pending against the

petitioner in Special Case No. 3 of 1980 on the file of the Additional Chief Judicial Magistrate, and Special Judge, Cuddalore, is quashed.