State of Punjab vs Piara Singh

D.B. Lal, J.—This appeal by the State of Punjab raises a short but very important question of law. Piara Singh accused was sent up to stand his trial in the Court of the Judicial Magistrate 1st Class, Tarn Taran, as a result of investigation conducted by S.H.O. of the police Station Sirhali. The said S.H.O. got information on 13th August, 1972 that in village Gharka, Piara Singh was engaged in illicit distillation. Accordingly, a raid was organised and Piara Singh was arrested red handed while he was busy in the process of distillation Forty Killograms of Lahan was also recovered also on with other articles. The necessary note of memo was written and after the investigation was complete, the said S.H.O. Sirhali sent up the case to the Magistrate 1st Class, Tarn Taran. Obviously, the said Magistrate took cognizance of the case upon a police report u/s 190(1)(b) of the then code of Criminal Procedure. Thereafter the preliminary statement of the accused was recorded and a charge u/s 6(1) of the Punjab Excise Act, 1914, was framed against him. The prosecution adduced evidence and after the closure of the ease on behalf of the prosecution, the statement of the accused u/s 342 of the Code was recorded. In neither of the two statements the accused took up the plea that the S.H.O. Sirhali had no territorial jurisdiction to effect the recovery or to cause the arrest of the accused for that particular spot where the distillation was going on. One of the defence witnesses too indicated that the Particular spot from where the recovery was made fell beyond the River Beas and that presumably the said area did not fall within the jurisdiction of police station Sirhali. Before the Magistrate an argument was founded on the basis of section 156 (1) of the Code that the officer incharge of the police station could not investigate this offence as he had no jurisdiction over the local area from where the recovery was made or the arrest was effected. This plea prevailed before the learned Magistrate and he recorded a finding of acquittal. Against that finding the State had preferred the present appeal.

The learned Magistrate has obviously applied sub-section (1) of section 156 of the Code. The said section can profitably be extracted as below: --

(1) Any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a Court having jurisdiction over the local area with in the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned.

The learned counsel for the State argued that sub-section (2) of section 156 clearly provided for a remedy in such a situation. The investigation conducted by the Police Officer in such a case was protected and the trial could not be vitiated. As per language used in sub-section (2) it is evidently clear that no proceeding, during investigation, of the Police Officer could be called in question on the ground that the case was one which such officer was not empowered under sub-section (I) to investigate.

It is mantifest that the plea as to the jurisdiction of the investigating officer was not taken by the accused at an earlier stage. He gave his preliminary statement before the Magistrate and subsequently when the prosecution case was over, he gave his statement u/s 342 of the Code. In neither of them he questioned the vires of the investigation. In such a situation the question before us would be as to whether sub-section (2) of section 156 would afford a protection to the trial and to subsequent decision by the Magistrate. In that connection, the learned counsel relied upon the observations of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, . The following extract from the decision would be very pertinent to the question before us:

A defect or illegality in investigation however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in S. 190, Criminal Procedure Code as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Criminal Procedure Code is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter section regulate that competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sence, Clauses (a), (b) and (c) of section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of section 190 (1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537, Criminal Procedure Code is attracted.

If therefore, cognizance is in fact 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. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled.

It, is, therefore, abduntantly clear that a valid and legal police report cannot be the foundation of the jurisdiction of the Court to take cognizance u/s 190. If that was the case, cognizance rightly started before the Magistrate and similarly the trial also took place in a legal manner. Any effect or illegality committed in investigation had no effect on the trial and decision of the Magistrate. The afore-mentioned decision of the Supreme Court was followed it The The State Vs. Pukhia and Others, It was held that an investigation in contravention of sub-section (1) of section 156 will not be a ground of discharge as it is cured under sub-section (2) of that section. A full Bench of this Court in The State v. Krishan Kumar Cr. A. 25-D of 1953 (Cr. Appeal No. 25D of 1953 decided on 3rd May 1954) considered section 156 and held that illegalities in investigation covered by that section are (1) when the powers to investigate a cognizable case given to a police officer in charge of a police station are exercised by him outside the territorial limits specified in section 156 (1) of the Code, and (2) when the investigation in a cognizable case is made by a police Officer inferior to rank to on officer in charge of a police station. It was held that section 156 (2) of the Code has no application to objections which do no not fall within section 156 (1) of the Code. It means that in case objection does fall within section 156(1) sub section (2) of section 156 would have its application and the said objection will not vitiate the trial. In the instant case, the objection as to investigation clearly fell within section 156 (1), and it was curable u/s 156 (2).

The learned Magistrate has in fact passed the order of acquittal presumably because the charge was already framed but in our opinion the said order could not be one u/s 258 and rather it was an order u/s 251-A of the Code. The learned Magistrate did not consider the evidence on merit. u/s 258, he could only acquit the accused if he found him not guilty of the offence. That finding was not given. Rather the learned Magistrate chose to discharge the accused u/s 251-A but that he could only do if the charge was found to be groundless. That could not be the case either, in the present situation.

Had the accused taken his stand right in the beginning that the investigation was irregular, perhaps, the Magistrate would have set right that irregularity. This he has not done. On the other hand, he has taken his chance by standing to a trial and after the evidence was over that he took up the plea regarding jurisdiction of the S.H.O. Sirhali to conduct the investigation. In such a situation, whatever defect was pointed out in the investigation was curable under sub-section (2) of section 156 of the Code. The decision of the learned Magistrate was, therefore, illegal and will have to be set aside. The case be sent back to the learned Magistrate for a fresh trial and decision in accordance with the law. The appeal is therefore, allowed and the order of the acquittal by the learned Magistrate is set aside, with a direction that he would decide the case on merit in the light of our observations made above.

D.S. Tewatia, J.

I agree.