P L D 1958 (W (PLP)

S. A. Ashfaq for Appellant. S. Nasiruddin for Respondent. Date of hearing : 19th September 1958. Mr. Ashfaq has conceded that upon the evidence recorded by the learned Special Judge, Karachi, the accused Manan falls within the definition of public servant in section 21 P. P. C. Mr. Ashfaq has not argued the merits of this case, but has confined himself to one point of law, namely, that since, as is admitted by the State, the investigation of this case throughout has been conducted by police officers below the rank of Deputy Superintendent of Police without obtaining any order of a First Class Magistrate the investigation was bad, and the report following this prohibited investigation could not form a foundation for cognisance. Section 5‑A of the Prevention of Corruption Act, 1947 reads as follows in so far as is material :‑ "Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under any of the sections of the Pakistan Penal Code, mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefore without a warrant". The offences in the present case were under section 5 (2) of the Prevention of Corruption Act. The question whether when an investigation has been conducted in a manner contrary to the provisions of section 5‑A the Special Judge has jurisdiction to entertain the case is a matter upon which the Courts have differed. The case law was carefully set out in Mir Alam's case (P L D 1955 Lah. 667), on the facts it is distinguishable since only a part of the investiga tion in that case was conducted without an order of a Magistrate. But I respectfully disagree with the reasoning concerning the juris diction of the Court, namely that a report made by a police officer never empowered and resulting from a prohibited investiga tion may be treated as a complaint or as a report by any police officer so as to enable the Court to take cognisance under section 190, Cr. P. C. Undoubtedly section 5‑A categorically prohibits an investiga tion by a police officer unless his rank or an order of a First Class Magistrate qualifies him. Subsection (2) of section 156, Cr. P. C., does not apply to this C case. Subsection (2) is a proviso to subsection (1) of section 156 and not a proviso to section 5‑A and is in conflict with the over riding prohibition in section 5‑A. Section 529 has no application to acts which no Court could be empowered to do : it cures only acts which the Court empowered could have done. I would distinguish cases such as the Full Bench decision in Public Prosecutor v. Ratnavelu (49 Mad. 525), where the report or complaint of the police officer does not contravene the prohibition in the Code against investigation. In that case in the course of investi gating a dacoity the police came to know that the charge of dacoity was false and submitted a charge sheet under section 211, I. P. C. As Gandy J. in Sada's case (26 Bom. 150 F B), and Fawcett, J., in Shivaswami's case (51 Bom. 498), point out cases arise where a non‑cognisable offence is committed in the presence of a police officer ; in such cases his "complaint" does not contravene the prohibition against investiga tion. Several Privy Council judgments have dealt with contraven tions of prohibitions imposed by the criminal law, and from them I deduce as a main principle that after considering the nature of the prohibition and the nature and extent of the contravention the Court must then decide the appropriate consequence. For instance in Zahiruddin's case (P L D 1947 P C 13 = A I R 1947 P C 75), their Lordships considered two contraventions of section 162, Cr. P. C., if a witness signs his statement to the police this contravention goes merely to the credibility of his evidence : on the other hand if he makes free use of his statement to the police to supplement a defective memory, his evidence must be rejected altogether ; for otherwise as Lord Normand said "the categorical prohibition of such use would be merely disregarded". Similarly here, if one allows a report embodying the result of an investigation which from begin ning to end was prohibited to be the foundation of cognisance, one is merely disregarding the categorical prohibition. Further to treat such a prohibited report as a complaint or as a report by any police officer (vide section 4 Criminal Law Amendment Act, 1948) would be to allow that to be done indirectly which cannot be done directly. I would respectfully disagree with Fawcett, J's reasoning in Shivbhat's case : (52 Bom. 238), that the question whether evidence has been elicited by a Sub‑Inspector or an Inspector in the first instance is of very minor importance. I would prefer the reasoning in Chandri Bawoo's case (49 Bom. 212), of Marten, J., (as he then was) where it was held that the Magistrate had no jurisdiction to try a prostitute on the report of a police officer who being unqualified was prohibited from making the arrest. One object of section 5‑A is to protect public servants against investigation by unqualified police officers just as section 10 of Bombay Act XI of 1923 was intended so it was held to protect the public. The result is that the conviction of the appellant under section 5 (2) of the Anti‑Corruption Act is set aside. This does not debar further investigation by a competent police officer and subsequent trial if the relevant authorities so think fit. A.H. Conviction set aside.