P L D 1954 Sind 208 (PLP)

AGHA C. J.‑Respondent Ali Gohar, a Head Constable of Police, was sent up for trial on a charge of corruption before the Anti‑Corruption Magistrate, Sukkur. The learned Magistrate, after recording the evidence, came to the conclusion that the trial of the respondent was illegal, because the investigation in the case had been made by a Head Constable of police, and not by an Inspector, as required under Sind Act XXIV of 1950. Being dissatisfied with this, the Government has filed an acquittal appeal. We have heard the learned Assistant to the Advocate --General for the Crown, and Mr. A. H. Qureshi for the respondent. Sind Prevention of Bribery and Corruption Act (XXIV of 1950) in section 2, defines the " Inspector of Police" as an " Inspector of the Anti‑Corruption Police Establishment of the Provincial Government." Proviso to section 3 of this Act reads as under :‑ "Provided that a police officer below the rank of an Inspector of Police shall not for the purposes of this Act, investigate any offences specified‑ in the schedule appended hereto or make any arrest therefore without a warrant," and an offence under section 161 P. P. C. appears in the schedule. Section 4 of the Act reads as under :‑ " The Inspector of Police shall exercise the powers of the Officer‑in‑Charge of a police station in the district in which he is appointed and when exercising such power, shall be deemed to be an Officer‑in‑Charge of a police station discharging the functions of such officer within the limits of his station." From this it will be seen that the power to investigate offences under this Act as an Officer‑in‑Charge of a police station has been given specially to an Inspector of Police, who according to the definition of that word in the Act, means an Inspector of the Anti‑Corruption Police Establish ment of the Provincial Government. In the present case, admittedly, the investigation has been held by a Head Constable of Police, and not by the Inspector, as defined in the Act. The learned Assistant to the Advocate‑General has relied on clause (2) of section 156 of the Code of Criminal Procedure. Clause (1) of this section reads :‑ "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 within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of enquiry or trial." From this it will be seen that clause (1) gives power to an Officer‑in‑Charge of a police station to investigate cognizable cases. Clause (2) of this section reads as under :‑ " 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:" From this clause it will be seen that this clause will apply only to proceedings of a police‑officer acting under clause (1), and clause (1) definitely refers to the acts of an officer‑in‑charge of a police‑station. But, as said above, under the Sind Act, it is only the Inspector of the Anti‑Corrup tion Police Establishment who can exercise the powers of the Inspector of Police incharge of a police station. Clause (2) of section 5 of the Cr. P. C. reads as under :‑ "All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." This clearly shows that the procedure with regard to the investigation under any special law, is to be the procedure prescribed by that law. In the present case, we have a definite provision in the Sind Act to the effect that it is the "Inspector of Anti‑Corruption Police Establishment" who will exercise the power of the "officer‑in‑charge of the police station". This power has not been exercised by the Inspector as defined in the Sind Act, but by a Head Constable of police. In my opinion the investigation by the Head Constable of police in this case is not a mere irregularity, but it is an illegality which vitiates the trial, as it has not complied with the mandatory provisions of law mentioned in the Sind Act. Mr. Tufail Ali, the learned Assistant to the Advocate‑General has relied on the following cases :‑ Shivbhat Manjunathbhat Hattangadi v. Emperor (A I R 1928 Bom. 162); Rustom Ardeshir Banaji v Crown (A I R 1948 Born. 163.) ; Promod Chandra Shekhar v. Rex (A I R 1951 All. 546) ; Keshava Nand Shrivastava v. The State (A I R 1952 All. 122.). He has also referred to two cases, which are against the view held in the above cases , these are Sudhir Kumar v. The State (A I R 1953 Cal, 226) ; The State v. Madan Lal (A I R 1954 Pb. 42,) ; The head note in the case of Shivbhat Manjunathbhat Hattangadi v Emperor reported in A I R 1928 Born. 162 reads :‑ "A conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered; and the question whether that evidence has, in the first place been elicited by an Inspector or by a Sub -Inspector is of very minor importance and does not really affect the result of a trial, except to this extent that the theory is that the higher the rank of the police officer investigating, the more careful and unimpeachable his enquiry is likely to be. Therefore an irregularity occasioned by a Sub-Inspector investigating into an offence while investigation should have been made by an Inspector is curable by section 537 Cr. P. C. In that case, the inspector was the proper police officer to investigate the case, but the investigation was held by a sub‑Inspector of Police. The body of the Judgment, however, shows that the Inspector also had taken part in the investigation; the relevant portion of it, at page 165, reads as under :‑ " But it sees to me that it cannot possibly be said to have occasioned a failure of justice, especially as the Inspector in this case did personally take part in the in vestigation. Therefore, although I am not prepared to say that in fact the police Inspector did conduct' the investigation within the meaning of Rule 27, yet I think that omission clearly is an irregularity which cannot be held to be a bar to the jurisdiction of the trial court." Coming to the case, Rustom Ardeshir Banaji v. Emperor, (supra) in that case it was held that the provisions of section 3 of the Prevention of Corruption Act (1947) did not apply to the City of Bombay, and therefore the opinion expressed on this point would be obiter dicta. Then comes the case Promod Chandra Shekhar v. Rex. (supra) The head‑note of this case reads as under :‑‑ "Section 156 (2) Cr. P. C. is in terms wide enough to cover an investigation into an offence punishable under section 161 or section 165, Penal Code, which is conducted by a police officer not authorised under the Proviso to section 3, Prevention of Corruption Act ...The failure to comply with the proviso to section 3, Prevention of Corruption Act, is therefore an irregularity falling within section 156 (2), Cr. P. C. and accordingly the proceedings of the investigating officer cannot be called in question. In this case, the provisions of the Prevention of Corruption Act (II of 1947), which is a Central Act, were considered. The relevant provision in section 3 of the Act reads:‑‑ "An offence punishable under section 161 or section 165 of the Indian Penal Code shall be seemed to be a cognizable offence for the purposes of the Code of Criminal Procedure 1898, notwithstanding anything to the contrary contained therein:- Provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest therefore without a warrant." There is no provision in this Act, as in the Sind Act, defining the "Officer‑in‑Charge of a police station." The last case in support of the contention of the learned Assistant to the Advocate‑General is the case of Keshava Nand Srivastava v. The State (supra) this has merely followed the earlier Allahabad case. The relevant portion of the head -note reads :‑ " No doubt subsection (4) of section 5 opens with the words `notwithstanding anything contained in Cr. P. C.,' but that exception is designed to overcome the provisions of section 156 (1), Cr. P. C. which permits all cognizable offences to be investigated by an officer‑in‑charge of a police station. The words however do not go any further, because Act II of 1947 does not lay down any rules governing investigation and the rules contained in the Cr. P. C. continue to govern investigations even in cases under that Act. Thus the investigation by an officer below the rank of Deputy Superintendent of police, however undesirable, is a mere irregularity and not an illegality vitiating the investigation and the complaint based upon it." Coming to the two cases cited by Mr. Tufail Ali against this point of view, the first case is Sudhir Kumar v. The State (supra) that in a case under the Prevention of Corruption Act, (1947). The head‑note reads :‑ "The effect of the proviso to section 3, Prevention of Corruption Act is that section 156, Cr. P. C. is made inapplicable to investigation of an offence under section 161 Penal Code. " The failure to comply with the mandatory provisions of the proviso to section, Prevention of Corruption Act is not a mere irregularity, but an illegality, the effect of which is that the entire proceedings based on the charge -sheet reported by the officer who was not competent to investigate must fail and must be quashed." The other case is, The state v. Madanlal (supra) this also was a case under the same Act, and the head‑notes reads:‑ " When the investigation has not been carried out in accordance with the provisions of section 5 (4), such investigation is not a mere irregularity falling under section 156 (2) Cr. P. C. but it is an illegality and the entire proceedings based on the charge‑sheet reported by the officer not competent to investigate must fail." It is clear to me that the investigation by the Head constable in the present case is not a mere irregularity but an illegality, and therefore the proceedings must be quashed. I would therefore uphold the acquittal of the respondent and dismiss the appeal. A. H. Acquittal upheld.