D.B. Lal, J. - (1.) 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 the S.H.O. of the police station, Sirhali. The said S.H.O. got information on 12th 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 Kilograms of Lahan was also recovered along 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 under Section 190(1)(b) of the then Code of Criminal Procedure. Thereafter the preliminary statement of the accused was recorded and a charge under Section 61(1) of the Punjab Excise Act, 1914, was framed against him. The prosecution adduced evidence and after the closure of the case on behalf of the prosecution, the statement of the accused under Section 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.
(2.) 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 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 inquiry or trial. (20 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 under Section 190 may order such an investigation as above -mentioned. The learned Counsel for the State argued that subjection (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 (1) to investigate,
(3.) IT is manifest that the plea as to the jurisdiction of the investigation 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 under Section 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 Anr. v. State of Delhi : A.I.R. 1955 S.C. 196. 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 Section 190, Code of Criminal Procedure 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 Code of Criminal Procedure 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 sections regulate the 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 sense, 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, Code of Criminal Procedure 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.;