UNION OF INDIA ETC. REP. THROUGH SUPERINTENDENT OF POLICEversusT. NATHAMUNI

                    [2014] 12 S.C.R. 297

          UNION OF INDIA ETC. REP. THROUGH                      A
             SUPERINTENDENT OF POLICE.
                              v.
                    . T. NATHAMUNI
         (Crminal Appeal No. 2512-2513 of 2014)
                          - --- -
                        - -   -   ~




                  DECEMBER 01, 2014                             B

      [M.Y: EQBAL AND SHIVA KIRTI SINGH, JJ.]
     Prevention of Corruption Act, 1947 - s. 17 - Persons
authorized to investigate - Complaint alleging case of bribery · C
against respondent-Inspector of income tax - Investigation by
Inspector of Police - Special Judge for CBI cases permitting .
Sub-Inspector of police to investigate the matter under the
1988 Act-· Completion of investigation by Sub-Inspector as.
a/so submission of charge sheet and court took cognizance D
- Thereafter. respondent seeking quashing of the order
passed by the Special Judge - High Court set aside the order
holding that as per the provisions of s. 17, no officer below
the rank of Inspector of Police was authorized by the Govt. to
investigate the case without permission of the Court and that E
the Special Court without assigning any reason in the order
permitted the Sub-Inspector of Police to investigate the matter
- Sustainability of - Held: N o case of prejudice or
miscarriage of justice by reason of investigation by the Sub-
Inspector of Police made out - Order of the High Court setting F
aside the permission granted bYthe Magistrate to investigate
the matter by Sub-inspector not sustainable.

    Allowing the appeals, the Court
    HELD: On the basis of the ·permission acc.orded by          G .·.
the Magistrate, the Sub-Inspector, CBI proceeded with the
investigation and finally submitted charge-sheet.. It was
only during the trial, said order of Magistrate was
questioned by the respondent by filing a criminal petition
                           297 ~. ·                             H
    298      SUPREME COURT REPORTS           [2014] 12 S.C.R.


A   in the High Court. The Single Judge held that since the
    special court without assigning any reason permitted
    Sub-Inspector of Police to investigate the matter, the
    order is not in accordance with law and disposed of the
    petition. The order was passed by the Special Judge on
B   request and in the interest of justice, investigation
    pursuant to such order did not suffer from want of
    jurisdiction and thus, in the facts of the case, the High
    Court erred in law in interfering with such investigation
    more so when it was already completed. The High Court
C   erred in overlooking the gist of order of Special Judge
    permitting the Sub-Inspector to investigate. Further,
    having regard to the fact that no case of prejudice or
    miscarriage of justice by reason. of investigation by the
    Sub-Inspector of Police is made out, the order of the High
    Court cannot be sustained in law. [Para 12, 13, 18, 19]
0
    [303-H, F; 307-F-G]
                                     L
         Dr. M.C. Sulkunte vs. The State of Mysore AIR 1971 SC
    508; Muni Lai vs. Delhi Administration 1971 Suppl. SCR
    276:AIR 1971 SC 1525; State of Haryana vs. Bhajan Lal
E   1990 (3) Suppl. SCR 259:AIR 1992 SC 604; AC. Sharma
    vs. Delhi Admn. 1973 (3) SCR 477:(1973) 1 SCC 726 -
    referred to.
                       Case Law Reference: ·
F         AIR 1971 SC 508          Referred to      Para 14
          1971 Suppl. SCR 276      Referred to      Para 15
          1990 (3) Suppl. SCR 259 Referred to       Para 16

G         1973 (3) SCR 477         Referred to      Para 17
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 2512-2513 of 2014.

          From the Judgment & Order dated 5.7.2013 of the
H
 UNION OF INDIA ETC. REP. THROUGH SUPERINTENDENT 299
             OF POLICE v. T. NATHAMUNI

Madurai Bench of High Court of Madras in Criminal O.P. Nos.           A
1943 and 6464 of 2010.

    K. Radhakrishnan, T.A. Khan, Farrukh Rasheed; B.V.
Balaram Das for the Appellant.

   J.C. Gupta, Dharm Singh, Ram Shankar (for R.V.                     B
Kameshwaran) for the Respondent.

     The Judgment of the Court was delivered by

     M.Y. EQBAL, J. 1. Leave granted.
                                                                      c
     2. The present appeals are directed against the common
judgment and order dated 5.7.2013 passed by the Madurai
Bench of Madras High Court in Crl.0.P. No.1943 & 6464 of
2010, whereby the High Court set aside the order passed by
the Trial court pennitting a Sub-Inspector of Police to investigate   D
the matter under the Prevention of Corruption Act.

      3. The facts giving rise to the present appeals are that on
the basis of a complaint from one S. Muniraj a case being RC
50(A)/2009 was registered by Central Bureau of Investigation, E
ACS, Chennai against respondent - T. Nathamuni, Inspector of
Income Tax on the allegation that the accused had demanded
an amount of Rs. 5,000/- from the complainant. A trap was laid .
and allegedly the accused was caught red handed while
accepting the bribe amount. Initially, the case was investigated F
by Mr. Lawrence, Inspector of Police and owing to some
administrative reasons, the Superintendent of Police, Central
Bureau of Investigation, Anti Corruption Branch, Chennai filed
petition dated 22.9.2007 under Section 17 of the Prevention
of Corruption Act, 1988 (in short, 'the Act') before the Court of G
Special Judge CBI cases, Madurai seeking permission for
investigation of the case by Shri G.A. Suriya Kumar, Sub-
Inspector of Police, instead of Mr. Lawrence, Inspector of
Police.

     4. The Special Judge for CBI cases, Madurai vide order           H
    300     SUPREME COURT REPORTS                (2014] 12 S.C.R.


A   dated 24.09.2009 allowed the aforesaid petition permitting G.A.
    Suriya Kumar, Sub-Inspector of Police to investigate the case.
    After completion of investigation, charge sheet dated
    01.12.;1009 was filed in the Court of Special Sessions Judge
    for CBI cases, Madurai and the Court took cognizance and
s   assigned it CC No.7/2009.

       5. During the course of trial, the respondent moved the
  High Court preferring criminal original petition under section
  482 of Criminal Procedure Code (in short, 'Cr.P.C.') to quash
  the entire proceedings in CC No.7/2009 on the ground that
C there is correction in the FIR and sanction was not accorded
  by proper authority. Respondent also preferred another petition
  to call for the records and to quash the order dated 24.09.2009
  passed by the Special Judge, Madurai in Crl. M.P. No.549 of
  2009 permitting Shri GA Suriya Kum~r. Sub-Inspector of Police
D to investigate the case.

         6. The High Court vide its impugned order dated 5.7.2013
    set aside aforesaid order of the Trial Court on the ground that
    Section 17 of the Act provides that if the officer not below the
E   rank of Inspector of Police is authorized by the Government,
    such officer can investigate the case without permission of the
    Court. There is no specific provision in Section 17 of the Act
    that the Sub-Inspector of Police i.s also empowered to
    investigate the case with the permission of the Court. The High
F   Court further observed that the Special Court without assigning
    any reason in the order permitted the Sub-Inspector of Police
    to investigate the matter
                        .
                              and the same is
                                            I
                                              not in accordance with
    law.

       7. Hence, these appeals by special leave by the Union of
G India as well as the State. ·
                                            '
       8. We have heard learned counsel for the parties. Mr. K.
  Radhakrishnan, learned senior counsel appearing for the
  appellant submitted that the High Court has failed to appreciate
H that Special Judge granted permission to aforesaid Sub"
  UNION OF INDIA ETC. REP. THROUGH SUPERINTENDENT 301
      · OF POLICE v. T. NATHAMUNI [M.Y EQBAL, J.]

 Inspector of Police, CBI, Chennai to investigate the case and        A
 after completion of the investigation, charge sheet was filed and
 cognizance was taken. Learned counsel contended that the
 High Court interpreted Section 17 of the Act erroneously. The
 provisions of Section 17(a) of the Act prescribe that without the
 permission of the Court, the investigation of the case below the     B
 rank of Inspector of Police shall not be done. Sul in this case,
 the investigation was done with the order of the Court. Learned
 counsel submitted that by virtue of Section 5(3) of the Delhi
 Special Police Establishment Act any member of the Delhi
 Special Police Establishment of or above the rank of Sub-            C
 Inspector is made officer-in-charge of police station and,
 therefore, they have the power to investigate into the offences
 mentioned in the notification under Section 3 of the Act within
 their respective limits and they can exercise all the functions of
 the Officer-in-charge of the police station.
                                                                      D
        9. Per contra, it has been submitted on behalf of the
  respondent that criminal prosecution was initiated on a
  complaint given by the Secretary of Rajapalayam Town Co-
  operative Housing Society, Rajapalayam relating to an enquiry
  in connection with evasion of payment of income tax for the E
  house building owned by him. However, investigation has been
  conducted without prior sanction of the competent authority as
  required under Section 19 of the Act. In the present case,
  sanction had been given by Commissioner of Income Tax after
  completion of investigation. It is contended that the powers of F
  the High Court under Section 482 is wide and full enough to.
  interfere in this case where the lower court made investigation
  without proper sanction as is mandated under Section 19 of
  the Act and also where investigation is done by a person below
  the rank of Inspector of Police as mandated under Section 17 G
  of the Act. It is further submitted by the respondent that the Court
  has no power to grant permission to police officer below the
  rank of Inspector of Police, without any specific or general order
· of the Government to that effect for such an officer. It was further
  submitted by the counsel that the accused has all justification
                                                                       H
    302       SUPREME COURT REPORTS               (2014] 12 S.C.R.


A   in challenging the faulty procedure in investigation. Since
    provisions of Section 17 and 19 are held mandatory, once
    protedions under the Act are taken away, public servants
    cannot carry o.ut their public duties without fear or fervor.

B        10. While setting aside order of the trial court, the High
    Court has observed that reading of Section 17 of the Act
    discloses that if the Officer not below the rank of the Inspector
    of Police is authorized by the Government, such officer can
    investigate the case without permission of the Court.

C         11. In the instant case, the only question that needs to be
    considered is as to whether the order passed by the Magistrate
    permitting the Sub-Inspector, CBI, Chennai to investigate the
    matter can be sustained in law. The only ground taken by the
    respondent in the quashing petition before High Court is that
D   as per the provisions of Section 17 of Prevention of Corruption
    Act, 1988, no officer below the rank of Inspector of Police is
    authorized by the Government to investigate the case without
    permission of the Court. Further, Section 17 does not confer
    any power to the Court to grant permission to Sub-Inspector of
E   Police to investigate the case. Hence, order passed by the
    Magistrate permitting the Sub-Inspector of Police to investigate
    the case is without jurisdiction and against the mandatory
    provisions of Section 17 of the Act as well as Article 21 of the
    Constitution of India. Before answering the question we would
F   like to refer to Section 17 of the Prevention of Corruption Act,
    1988 which reads as under:-                        ·

          "17. Persons authorised to investigate.-Notwithstanding
          anything contained in the Code of Criminal Procedure, ·
          1973 (2 of 1974), no police officer below the rank,-
G
          (a) in the case of the Delhi Special Police Establishment,
          of an Inspector of Police;

          (b) in the metropolitan areas of Bombay, Calcutta, Madras
          and Ahmedabad and in any other metropolitan area
H
 UNION OF INDIA ETC. REP. THROUGH SUPERINTENDENT 303
      OF POLICE v. T NATHAMUNI [M.Y. EQBAL, J.]

     notified as such under sub-section (1) of section 8 of the       A
     Code of Criminal Procedure, 1973 (2 of 1974), of an
     Assistant Commissioner of Police;

     (c) elsewhere, of a Deputy Superintendent of Police or a
     police officer of equivalent rank, shall investigate any
                                                                      8
     offence punishable under this Act without the order of a
     Metropolitan Magistrate or a Magistrate of the first class,
     as the case may be, or make any arrest therefor without a
     warrant: Provided that if a police officer not below the rank
     of an Inspector of Police is authorised· by the State
     Government in this behalf by general or special order, he        C
     may also investigate any such offence without the order of
     a Metropolitan Magistrate or a Magistrate of the first class,
     as the case may be, or make arrest therefor without a
     warrant: Provided further that an offence referred to in
     clause (e) of sub-section (1) of section f3 shall not be         D
     investigated without the order of a police officer not below
     the rank of a Superintendent of Police."

     12. It is· clear that in the case of investigation under the
Delhi Special Police Establishment Act, an officer below the          E
rank of Inspector cannot investigate without the order of a
competent Magistrate. In the present case, order of the Special
Judge was obtained by filing an application. That order dated
24.9.2009 shows that it was passed on request and in the
interest of justice, investigation pursuant to such order did not     F
suffer from want of jurisdiction and hence, in the facts of the
case, the High Col!rt erred in law in interfering with such
investigation more so when it was already completed.

      13. The question raised by the respondent is well
answered by this Court in a number of decisions rendered in           G
a differer1t perspective. The matter of investigation by an officer
not authorized by law has been held to be irregular. Indisputably,
by the order of the Magistrate investigation was conducted by
Sub-Inspector, CBI who, after completion of investigation,
submitted charge-sheet. It was only during the trial, objection       H
    304       SUPREME COURT REPORTS                [2014] 12 S.C.R.


A was raised by the .Respondent that the order passed by the
  Magistrate permitting Sub-Inspector, CBI to investigate is
  without jurisdiction. Consequently, the investigation conducted
  by the officer is vitiated in law. Curiously enough the respondent ·
  has not made out a case that by reason of investigation
B conducted by the Sub-Inspector a serious prejudice and
  miscarriage of justice has been caused. It is well settled that
  invalidity of investigation does not ·vitiate the result unless a
  miscarriage of justice has been caused thereby.

        14. In the case of Dr. M.C.' Su/kunte vs. The State of
C Mysore, AIR 1971 SC 508, the main question raised by the
  appellant in an appeal against the order of conviction was that
  the sanction to investigate the offence given by the Magistrate
  was not proper in as much as he had not recorded any reason
  as to why he had given permission to the Inspector of Police
D to investigate the offence of criminal misconduct of obtaining
  illegal gratification. Considering Section 5(A) of the Act Their
  Lordships observed:-               '

          "15. Although laying the trap was part of the i~vestigation
E         and it had been done by a Police Officer below the rank
          of a Deputy Superintendent of Police., cannot on that
          ground be held that the sanction was invalid or that the
          conviction ought not to be maintained on that ground. It has
          been emphasised in a number of decisions of this Court
F         that to set aside a conviction it must be shown that there
          has been miscarriage of justice as a result of an irregular
          investigation. The observations in State of MP. v. Mubarak
          Ali, 1959 Supp 2 SCR 201 at pp 210 and 211, to the effect
          that when the Magistrate without applying his mind only
          mechanically issues the order giving permission the
G         investigation is tainted cannot help the appellant before
          us."

       15. In the case of Muni La'/ vs. Delhi Administration, AIR
  1971SC1525, this Court was.considering the question with
H regard to the irregularity in investigation for the offence under
 UNION OF iNDIA ETC. REP. THROUGH SUPERINTENDENT 305
      OF POLICE v. T NATHAMUNI [M.Y. EQBAL, J.)

the Prevention of Corruption Act. Following earlier decisions,       A
this Court held:-

    "4. From the above proposition it follows that where
    cognizance of the case has in fact been taken and the
    case has proceeded to termination, the invalidity of the
                                                                     8
    preceding investigation will not vitiate the result unless
    miscarriage of justice has been caused thereby and the
    accused has been prejudiced. Assuming in favour of the
    appellant, that there was an irregularity in the investigation
    and that Section 5-A of the Act, was not complied with in
    substance, the trial by the Special Judge cannot be held         C
    to be illegal unless it is shown that miscarriage of justice
    has been caused on account of illegal investigation. The
    learned counsel for the appellant has been unable to show
    us how there has been any miscarriage of justice in this
    case and how the accused has. been prejudiced by any             D
    irregular investigation."

     16. In the case of State of Haryana vs. Bhajan Lal, AIR
1992 SC 604, this Court while considering Section SA of the
Act, held as under:                                                  E

     "125. It has been ruled by this Court in several decisions
     that.Section 5-A of the Act is mandatory and not directory
     and the investigation conducted in violation thereof bears
     the stamp of illegality but that illegality committed in the
     course of an investigation does not affect the competence F
     and the jurisdiction of the court for trial and where the
     cognizance of the case has in fact been taken and the
     case is proceeded to termination, the invalidity of the
     preceding investigation does not vitiate the result unless
     miscarriage of justice has been caused thereby. See (1) G
     H.N. Rishbud and lnder Singh v. State of Delhi (AIR 1955
     SC 196); (2) Major E.G. Barsay v. State of Bombay
     (1962) 2 SCR 195; (3) Munna Lalv. State of Uttar
     Pradesh, ((1964) 3 SCR 88; (4) S.N. Bose v. State of
     Bihar, (1968) 3 SCR 563; (5) Muni Lal v. Delhi H
    306       SUPREME COURT REPORTS                 [2014) 12 S.C.R.


A        Administration, 1971 (2) SCC 48, 6) Khandu Sonu Dhabi
         v. State of Maharashtra, 1972 (3) SCR 510. However, in
         Rishbud case and Muni Lal case, it has been ruled that
       · if any breach of the said mandatory proviso relating to
         investigation is brought to the notice of the court at an early
B        stage of the trial, the court will have to consider the nature
         and extent of the violation and pass appropriate orders as
         may be called for to rectify the illegality and cure the
         defects in the investigation."

         17. In the case of A.C. Sharma vs. Delhi Admn., (1973)
C   1 SCC 726, provisions of Section 5A were again considered
    by this Court and held as under:

          "15. As the foregoing discussion shows the investigation
          in the present case by the Deputy Superintendent of Police
D         cannot be considered to be in any way unauthorised or
          contrary to law. In this connection it may not be out of place
          also to point out that the function of investigation is merely
          to collect evidence and any irregularity or even illegality in
          the course of collection of evidence can scarcely be
E         considered by itself to affect the legality of the trial by an
          otherwise competent court of the offence so investigated.
          In H.N. Rishabud and lnder Singh v. State of Delhi (supra)
          it was held that an illegality committed in the course of
          investigation does not affect the competence and
          jurisdiction of the court for trial and where cognizance of
F
          the case has in fact been taken and the case has
          proceeded to termination of the invalidity of the preceding
          investigation does not vitiate the result unless miscarriage
          of justice has been caused thereby. When any breach of
          the mandatory provisions relating to investigation is brought
G         to the notice of the court at an early stage of the trial the
          Court will h.ave to consider the nature and extent of the
          violation and pass appropriafe orders for such
          reinvestigation as may be called for, wholly or partly, and
          by such officer as it considers appropriate with reference
H
UNION OF INDIA ETC. REP. THROUGH SUPERINTENDENT 307
     OF POLICE v. T. NATHAMUNI [M.Y. EQBAL, J.]
     to the requirements of Section 5-A of the Prevention of          A
     Corruption Act, 1952. This decision was followed in
     Munna Lal v. State of U.P where the decision in State.of
     Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707 was
     distinguished. The same view was taken in the State of
     Andhra Pradesh v. M. Venugopal, 1964 (3) SCR 742 and             B
     more recently in Khandu Sonu Dhobi v. State of
     Maharashtra (supra). The decisions of the Calcutta,
     Punjab and Saurashtra High Courts relied upon by Mr
     Anthony deal with different points: in any event to the extent
     they contain any observations against the view expressed         c
    ·by this Court in the decisions just cited those observations
     cannot be considered good law."

      18. As noticed, on the basis of the permission accorded
by the Magistrate, the Sub-Inspector, CBI proceeded with the
investigation and finally submitted charge-sheet. It was only         D
after that, said order of Magistrate was questioned by the
Respondent by filing a criminal petition in the High Court. The
learned Single Judge, appreciating the submission made by
the learned counsel, held that since the special court without
assigning any reason permitted Sub-Inspector of Police to             E.
investigate the matter, the order is not in accordance with law
and disposed of the petition giving liberty to the prosecution to
file a fresh petition before the court seeking permission to get
the matter investigated by a competent officer.
                                                                      F
     19. As discussed earlier, the High Court erred in
overlooking the gist of order of Special Judge permitting the
Sub-Inspector to investigate. Further, having regard to the fact
that no case of prejudice or miscarriage of justice by reason
of investigation by the Sub-Inspector of Police is made out, the      G
order of the High Court cannot be sustained in law. For the
reasons stated above, these appeals are allowed and the
order passed by the High Court is set aside. The concerned
Court shall now act with utmost expedition.

Nidhi Jain                                         Appeals allowed.   H