L.S. Mehta, J. - (1.) MR . Ugamraj Bhandari was posted as Additional Sessions Judge, Banswara, on October 6, 1969 Prior to that he had been working as Addl. Sessions Judge, Jhalawar. At Jhalawar he had been trying case No. 101/ 1968 (criminal), State v. Chatra, Mehmood Beg and Ors. under Section 302/109, I.P.C. That case could not be finalised at Jhalawara prior to Mr. Bhandari's transfer. He had, however, heard a part of arguments in that case on October 23, 1969. Thereafter the case had been fixed for hearing the arguments left over on October 28, 1969. On October 23, 1969, Mr. Bhandari went away from Jhalawar to Banswara. The prosecution story is that on Oct. 26, 1969, appellant Mehmood Beg, resident of Cherdia, District Kota, went to the bungalow of Mr. Bhandari at Banswara at 11.45 A M. There he first contacted Mr. Bhandari's son, Mr. Om Prakash (aged 18 years). He asked him as to where his brother Vijaya was. Mr. Om Prakash told him that he was not in his house. Thereafter Mehmood Beg asked Mr. Om Prakash to arrange his meeting with Bhandari. He was allowed to enter the room in which Mr. Bhandari was sitting on a cot. Mr. Om Prakash also followed the accused. Mahmood Beg at first paid respects to Mr. Bhandari, he sat on the floor and started talking to the Additional Sessions Judge about his case. Soon after the appellant took out a bundle of currency notes, wrapped in a plastic cover, and offered the same to Mr. Bhandari as a bribe in the presence of Mr. Om Prakash Mr. Bhandari having smelt bad intention on the part of the appellant got up from the cot and after going aside he in a low tone asked his son Mr. Om Prakash to call the Station House Officer, Police Station, Banswara. Mr. Om Prakash telephoned to the Station House Officer, but he was not available at the Police Station Thereafter Mr. Om Prakash tried to contact Deputy Superintendent of Police, Banswara, but he too was not present at the headquarters. Mr. Bhandari then wrote a report and gave it to Mr. Om Prakash to fair it out. Mr. Om Prakash did so. Thereafter he at the instance of his father gave that report to the Superintendent of Police Mr. Shyam Pratap Singh Rathore (P W 5) at his residence. The report is marked Ex. P/1. On this communication the Superintendent of Police reached Mr. Bhandari's residence He saw Mehmood Beg sitting in Mr. Bhandari's room. The document Ex. P/1 was sent that very day at about 12.30 P.M. by the Superintendent of Police to P.W. 6 Jeetmal, Head Constable, (sic)charge Police Station, Banswara, through his driver. On receipt of the first information report Jeetmal, after having obtained sanction (Ex P/4) for undertaking investigation in the case from the Sub -Divisional Magistrate, Banswara, arrived at the spot along with some police constables. He seized the currency notes, wrapped in a plastic cover and lying on the Judge's cot. The currency notes were of the following denominations a) 9 currency notes of Rs. 100/ -each; b) 9 currency notes of Rs. 10/ -each; c) 2 currency notes of Rs. 6/ -each. A seizure memo was prepared on the spot and is marked Ex P/2. Jeet Mal also prepared site inspection note Ex. P/5 After bringing to an end the investigation the police presented a challan in the court of Special Judge, Banswara. Learned Judge, charged the accused under Section 165A and 214, I.PC., to which he pleaded not guilty. In support of its case the prosecution examined six witnesses. In his statement recorded under Section 342, Cr. P.C., the accused deposed that his sister, wife of Kudrat Ullah Khan, lived in the Mahi Colony, Banswara He wanted to invite her at his house on Shabrat festival. On October 26, 1969 he went to Banswara. Abdul Gani was also with him. He saw Mr. Ugamraj Bhandari's residence on the road side. Abdul Gani wanted to meet him He kept waiting outside Mr. Bhandan's bungalow. As soon as Mr. Bhandari saw him, he called him inside his house. As some enquiry was going on against Mr. Bhandari at Jhalawar, he asked him as to what the actual position of his case was and sought his assistance in connection with influencing Advocate Mr. Thawar Das. After some time the police arrived at the spot. He in his defence produced Kudarat Ullah Khan (D.W. 1). The trial court by its judgment, dated September 21, 1970, found accused Mehmood Beg guilty under Section 165A I.P.C., and sentenced him to six months' rigorous imprisonment. The currency notes Ex. 20 were ordered to be confiscated to the State.
(2.) AGGRIEVED by the above verdict, Mehmood Beg has taken the present appeal. By Section 3, Prevention of Corruption Act offence under Section 165A was declared to be a cognizable offence. Section 5 -A of the Act provides that no Police Officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 165A, I.P.C. without the order of a Magistrate of the First Class Learned Counsel for the appellant submitted that P.W. 6 Jeet Mal, Police Head Constable, Banswara, had no power to investigate the case. The sanction, which he had obtained from the Sub -Divisional Magistrate, Banswara, is not of any consequence as the full facts of the case had not been brought to his notice. In this connection it may be stated that from the evidence of P.W. 1 Mr. Ugam Raj Bhandari, P.W. 2 Mr. Om Prakash, and P.W. 5 Mr. Shyam Pratap Sing's Rathore, Superintendent of Police, Banswara, it is evident that neither Deputy Superintendent of Police nor Station House Officer, Police Station, Banswara, was available at the headquarters. The matter being urgent, Head Constable Jeet Mal approached the Sub -Divisional Magistrate and submitted to him a report Ex. P/6, stating therein that as his senior officer was not available and as he was not authorised to investigate the case and he being In charge of the Police Station then, permission should be accorded to him to register the case and take over its investigation On this report the Sub -Divisional Magistrate, Banswara, passed the following order: Let investigation be taken in hand and case registered against the accused, if found guilty. After having obtained the above authoritative approval from the Sub -Divisional Magistrate, Banswara, Head Constable took over investigation. In view of such an order illegality of this investigation is not liable to any objection at all. The Magistrate under the circumstances mentioned in the report got himself satisfied that there existed good and sufficient reason for authorizing Jeet Mal, an officer of a lower rank, to conduct the investigation. It cannot be said that the Magistrate accorded permission as a mere matter of routine, but he did so in exercise of sound judicial discretion. The sanction therefore, is valid vide Para 10 H.N. Rishbud v. : 1955CriLJ526 . Apart from what has been said above, it may be stated that the attention of the Court was not drawn to any illegality in the permission at an early stage of the trial Had any breach, if any, been brought to the notice of the court at an early stage of the trial, the Court could have considered the nature and extent of the violation and passed appropriate order for such investigation as might be called for and by such officer, as it considered appropriate with reference to the requirements of Section 5 A of the Prevention of C irruption Act. Where the cognizance of the case had already been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice has been caused thereby. In other words, if cognizance has in fact been 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 illegality in the investigation brought about a miscarriage of justice. As has been observed by their lordships of the Privy Council in Lumbhardar Jutshi v. The King, AIR 1950 P.C. 26 a fault in procedure cannot deprive the Magistrate of his jurisdiction to try the accused. In this connection a reference is also made to Prabhu v. Emperor, AIR 1944 P.C. 73. Both the cases clearly show that invalidity of the investigation has no relation to the competence of the court. In State of Uttar Pradesh v. : 1964CriLJ140 it has been observed by his lordship Subba Rao. J. that where the prosecution evidence has been held to be true and where the accused had full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation; there must be a sufficient nexus, either established or probabilised, between the conviction and irregularity in the investigation. In Dr. M.C. Sulkunte v. : 1971CriLJ519 it has been laid down by his lordship Mitter, J. that to set aside the conviction it must be shown that there has been miscarriage of justice as a result of irregular investigation. In a recent decision reported in the State of Andhra Pradesh v. : 1971CriLJ676 his Lordship Sikri, C.J., held that: Illegal investigation by police prior to taking cognizance of offence does not vitiate either the trial or conviction unless miscarriage of justice has been caused thereby.
(3.) IN this case it was distinctly mentioned by Jeet Mal in his report Ex. P/6 that as no senior officer was available at the Police Station, he should be accorded permission to investigate the case, specially under the circumstance that it was he alone who was at the moment in charge of the police station. These reasons, in my opinion, were sufficient to enable the Magistrate to give permission, to Jeet Mal in accordance with the provisions of Section 5 A of the Prevention of Corruption Act, 1947. The accused also did not raise any objection in regard to illegality in the investigation in the course of his trial, nor has he shown any basis for raising an inference that he has been materially prejudiced because of the alleged illegality or irregularity in the investigation of the case. Keeping in view the above background, it is difficult to conclude that the convention of the appellant cannot be maintained because the investigation had been carried by a police officer below the rank of a Deputy Superintendent of Police, as no prejudice has been shown to have been caused to the appellant.;