HIGH COURT OF PUNJAB AND HARYANA
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Harnam Singh, J. -
(1.) In Criminal Appeals Nos. 25-D and 434 of 1953 the question given, hereunder has been referred to the Full Bench for decision:
"Whether the failure to comply with Section 5A of the Prevention of Corruption Act, 1947, in respect of investigation, is an illegality which vitiates the whole proceedings in the trial or bars a trial, or whether it is merely an irregularity curable under the provisions of the Code of Criminal Procedure?"
(2.) Shortly put, the facts of the cases out of Which Criminal Appeals Nos. 25-D and 434 of 1953 have arisen are these: In Corruption Case No. 3 of 1953 Krishan Kumar was prosecuted under Section 5(2), Prevention of Corruption Act, 1947, hereinafter referred to as the Act, on the charge ghat he, being a public servant, committed the offence of criminal misconduct by dishonestly and fraudulently misappropriating wagon-load of iron and steel, weighing 550 maunds worth rupees 11,141/8/- on 2-10-1950. Sub-Inspector Sumair Shah Singh investigated that case without the order of a Magistrate of the first class as required by Section 5(4) of the Act. In 1951 Shri Atam Parkash Magistrate of the first class took cognizance of the offence under Section 190, Criminal P. C., hereinafter refered to as the Code, on the report of Sub-Inspector Sumair Shah Singh. On the commencement of the Criminal Law Amendment Act, 1952, the Magistrate forwarded for trial to the-Special Judge under Section 10 of that Act the case, 'State v. Krishan Kumar'. In the Court of the Special Judge, Shri P.C. Gera P. W. 1 was examined on 1-51953 and by the judgment under appeal in Criminal Appeal No. 25-D of 1953 the Special Judge has convicted Krishan Kumar under Section 5(2) of the Act and sentenced him to suffer rigorous imprisonment for one year and six months. In corruption Case No. 30/2 of 1952 Mohindar Singh was prosecuted under Section 161, Penal Code, and Section 5(2) of the Act on the charge that on 31-101952 he, being a public servant, accepted rupees 50/-by way of bribe from Madan Lal P. W. 1. Sub-Inspector Hargopal Singh P. W. 7 investigated the case under order of Sardar Sant Singly P. W. 3, Magistrate second class, passed on the 31st of October, 1952, Exhibit P-M/1. By the judgment under appeal in Criminal Appeal No. 434 of 1953 the Special Judge has convicted Mohindar Singh under Section 161, Penal Code, and Section 5(2) of the Act and sentenced him to suffer rigorous imprisonment for six months under Section 161, Penal Code. No sentence has been imposed on Mohindar Singh under Section 5(2) of the Act.
(3.) In Corruption Case No, 3 of 1953 objection as regards contravention of the provisions of Section 5(4) of the Act was neither raised in the Court of the Magistrate nor in the Court of the Special Judge. In corruption Case No. 30/2 of 1952 objection as regards the contravention of the provisions of Section 5A the Act was raised in the trial Court but the Special Judge finding that there was no suggestion that investigation by Sub-Inspector Hargopal Singh has in fact occasioned a failure of justice has overruled the objection.;
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