H. N. Rishbud and Inder Singh vs The State of Delhi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 95 to 97 and 106 of 1954

Decision Date: 14 December 1954

Coram: B. Jagannadhadas, B.K. Mukherjea, Vivian Bose

In the matter of H. N. Rishbud and Inder Singh versus the State of Delhi, the Supreme Court of India delivered its judgment on 14 December 1954. The case was heard by a bench consisting of Justice B. Jagannadhadas, Justice B. K. Mukherjea and Justice Vivian Bose. The petition was filed by the appellants H. N. Rishbud and Inder Singh against the respondent State of Delhi and related proceedings. The judgment is reported in the 1955 volume of the All India Reporter at page 196 and also in the 1955 Supreme Court Reports (First Series) at page 1150. The statutory provisions central to the dispute were section 5(4) and the proviso to section 3 of the Prevention of Corruption Act, 1947 (II of 1947), together with section 5‑A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952). The core issue before the Court was whether these provisions were mandatory or merely directory, and what legal effect ensued when cognizance of a case was taken on a police report that had been obtained in breach of a mandatory investigative requirement.

The Court held that the cited provisions of the Prevention of Corruption statutes are mandatory and not merely directory, and consequently any investigation conducted in contravention of those provisions is illegal. The Court explained that where cognizance of an offence is taken on a police report that fails to comply with a mandatory investigative provision, the subsequent proceedings cannot be set aside unless the illegality can be shown to have caused a miscarriage of justice. It affirmed the well‑settled principle that an illegality occurring during investigation does not impair the competence or jurisdiction of the trial court, and that once cognizance has been properly taken and the trial proceeds to conclusion, the prior investigative defect does not vitiate the result unless it is demonstrated to have produced a miscarriage of justice. The Court further observed that if a breach of a mandatory investigative provision is brought to its attention at an early stage of trial, it must assess the nature and extent of the violation and may order a reinvestigation, wholly or in part, by an appropriate officer as required by section 5‑A of the 1952 amendment. In reaching its decision, the Court referred to the authorities Liverpool Borough Bank v. Turner ([1861] 30 L. J. Ch. 379), Prabhu v. Emperor (AIR 1944 PC 73) and Lumbhardar Zutshi v. The King (AIR 1950 PC 26). The judgment arose from criminal appeals numbered 95 to 97 and 106 of 1954, filed by special leave against orders of the Punjab High Court dated 24 August 1953 and 27 August 1954, which themselves were revisions of earlier orders of the Special Judge, Delhi, in Corruption Case No. 14 of 1954.

Criminal Miscellaneous No. 131‑D of 1954 was the matter before the Court. Counsel H. J. Umrigar and Rajinder Narain appeared for appellant No. 1, while the Solicitor‑General of India, C. K. Daphtary, together with G. N. Joshi, P. A. Mehta and P. G. Gokhale, represented the respondent. The hearing took place on 14 December 1954 and the judgment was delivered by Justice Jagannadhadas. The Court noted that these were appeals by special leave challenging orders of the Punjab High Court, which had exercised its revisional jurisdiction to set aside the orders of the Special Judge, Delhi. The High Court had reversed the Special Judge’s decision that had quashed certain criminal proceedings pending before him against the appellants for alleged offences under the Indian Penal Code and the Prevention of Corruption Act, 1947. The Special Judge had dismissed the proceedings on the ground that the investigations forming the basis of the prosecutions contravened sub‑section (4) of section 5 of the Prevention of Corruption Act, 1947 and were therefore illegal.

In Appeal No. 95 of 1954 the appellants were identified as H. N. Risbud and Indar Singh. Appeals No. 96 and 97 of 1954 named H. N. Risbud as the sole appellant. The Court observed that the three appeals raised a common question of law and would be decided together. Risbud held the post of Assistant Development Officer (Steel) in the Directorate‑General of the Ministry of Industry and Supply, Government of India, while Indar Singh served as Assistant Project Section Officer (Steel) in the same Directorate‑General. Several prosecutions were pending against them before the Special Judge, Delhi, who sat under the Criminal Law Amendment Act, 1952 (Act XLVI of 1952). The Court clarified that the present appeals concerned Cases Nos. 12, 13 and 14 of 1953, with Appeals Nos. 95, 96 and 97 arising respectively from those cases. The allegations were that the appellants, together with others, had entered into a criminal conspiracy to obtain iron and steel supplies for themselves or for third parties by creating fictitious firms, securing quota certificates, and enabling members of the conspiracy to receive deliveries of iron and steel from the stock‑holders of those materials. Consequently, the accused, including the appellants, were charged under section 120‑B of the Indian Penal Code, section 420 of the Indian Penal Code and section 7 of the Essential Supplies (Temporary Powers) Act, 1946. In addition, public servants among the accused faced charges under section 5(2) of the Prevention of Corruption Act, 1947. The Court further noted that, under section 5(4) of the same Act, a police officer below the rank of Deputy Superintendent of Police was prohibited from investigating any offence punishable under sub‑section (2) of section 5 unless authorised by a First Class Magistrate. The first information reports in these matters were lodged in April and June 1949, but permission of the Magistrate for investigation as against the public

In this matter, the permission for a police officer of rank lower than Deputy Superintendent of Police to investigate the public servants concerned was granted in March and April 1951. The charge‑sheets for all of the cases were subsequently filed by those same officers in August and November 1951, which was after the date on which the permission had been obtained. It was admitted that the investigation had been completed, either wholly or largely, during the interval between the filing of the first information reports and the granting of the permission to a lower‑ranking officer. Evidence presented showed that the investigation had not been carried out by any Deputy Superintendent of Police, but rather by officers of lower rank, and that after the permission was obtained, little or no further investigative work was undertaken. Consequently, the issue raised before the Court was whether the trial proceedings that were launched on the basis of those charge‑sheets were illegal and therefore required to be set aside.

To understand the argument, the Court examined the relevant provisions of the Prevention of Corruption Act, 1947 (Act II of 1947). Section 3 of the Act declares that offences punishable under sections 161 and 165 of the Indian Penal Code are to be treated as cognizable offences. Section 4 creates a special evidential rule concerning persons accused of offences under those penal code sections, shifting the burden of proof onto the accused. In effect, if it is shown that an accused has accepted or obtained gratification beyond legal remuneration, the Court presumes that such gratification was accepted as a motive or reward, as contemplated in section 161 of the Indian Penal Code. Sub‑sections 1 and 2 of section 5 of the Act introduce a new offence of “criminal misconduct in discharge of official duty” for public servants, punishable by imprisonment of up to seven years, a fine, or both. Sub‑section 3 of the same section imposes a further evidential rule: when an accused, or anyone on his behalf, possesses assets or wealth disproportionate to his known sources of income and cannot satisfactorily explain them, the Court shall presume criminal misconduct unless the accused can rebut the presumption with evidence. The offence of criminal misconduct created by the Act is itself cognizable, as indicated by item 2 of the last part of Schedule 11 of the Code of Criminal Procedure, listed under “offences against the other laws”. Accordingly, a normal investigation into criminal misconduct under section 5(2) of the Act, as well as an investigation into offences under sections 161 and 165 of the Indian Penal Code, would ordinarily be conducted by a police officer in charge of a police station without requiring any magistrate’s order.

It was observed that where an offence had been rendered cognizable by section 3 of the Act, the investigation ordinarily had to be undertaken by the officer in charge of the police station and no order of a magistrate was required for that purpose. However, the proviso attached to section 3 and sub‑section (4) of section 5 of the Act expressly provided that a police officer who held a rank lower than that of a Deputy Superintendent of Police was not permitted to investigate any such offence without first obtaining an order from a First‑Class magistrate, and that such an officer could not make an arrest in connection with the offence without a warrant.

It was further noted that the Act had been amended by Act LIX of 1952. The amendment removed the aforementioned proviso to section 3 and the sub‑section (4) of section 5 and replaced them with a new provision, section 5‑A. Section 5‑A read, in substance, that notwithstanding anything contained in the Code of Criminal Procedure, no police officer below the rank of a Deputy Superintendent of Police – except in the presidency towns of Calcutta, Madras and Bombay – was authorized to investigate any offence punishable under sections 161, 165 or 165‑A of the Indian Penal Code or under section 5(2) of this Act without the order of a First‑Class magistrate. The commentary pointed out that this amendment did not alter the practical effect of the law for the cases at bar because the investigations had been conducted before the amendment came into force; consequently, the relevant provision to be applied was section 5(4) as it existed prior to the amendment.

The discussion also recorded that in 1952 the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) had been enacted. That statute provided for the appointment of Special Judges to try offences under sections 161, 165 and 165‑A of the Indian Penal Code as well as offences under sub‑section (2) of section 5 of the Act. The Act further mandated that all pending cases involving those offences were to be transferred to the jurisdiction of the Special Judges. As a result, the matters presently before the Court were all pending before the Special Judge of Delhi who had been appointed under the amendment.

On the basis of the submissions advanced before the Court, two principal questions were identified for resolution. The first question concerned whether the provision in the Prevention of Corruption Act, 1947, which stipulated that investigations into the specified offences could not be carried out by any police officer of rank lower than a Deputy Superintendent of Police without a specific magistrate’s order, was intended to be merely directory or was mandatory in nature. The second question related to whether a trial that followed an investigation conducted in violation of that provision could be held to be illegal. In order to address the first question, the Court held that it was essential to examine carefully both the language of the provision and the policy considerations underlying it. As Lord Campbell had observed in Liverpool Borough Bank v. Turner, “there is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Court to try to get at the real intention of the Legislature by”

In this case the Court noted that the proper approach to interpreting a statutory provision required careful attention to the entire scope of the legislation, as emphasized in the authority quoted from Craies on Statute Law, page 242, Fifth Edition. The Court explained that the Code of Criminal Procedure does not limit itself to providing for the trial of alleged offences; it also lays down the procedure for the investigation that must precede any trial. Section 5 of that Code expressly provides that every offence shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code, unless a special enactment prescribes a different method. The Code classifies offences for investigative purposes into two categories: cognizable and non‑cognizable. When information about the commission of a cognizable offence is received, or when such a commission is suspected, the appropriate police officer is empowered to commence an investigation, provided the officer does not find the grounds insufficient. Conversely, if the information relates to a non‑cognizable offence, the officer may not investigate without first obtaining an order from a competent Magistrate. The Court therefore observed that, under the scheme of the Code, investigation serves as the normal preliminary step before an accused can be brought to trial for a cognizable offence, except in situations where a Magistrate takes cognizance of the matter on his own initiative, in which case the Magistrate may, under section 202 of the Code, direct an investigation if he considers it appropriate. The Court concluded that when the legislature categorized the offences under the Prevention of Corruption Act as cognizable, it necessarily contemplated that a prior investigation by the appropriate police officer would be the usual preliminary to any trial for those offences. To understand why the statute required that such investigations be carried out by an officer of a higher rank, except where a Magistrate permits otherwise, the Court examined the meaning of “investigation” as defined in the Code. Investigation typically begins when an officer in charge of a police station receives information concerning the commission of an offence, which must then be recorded under section 154 of the Code. If, on the basis of that information or any other source, the officer in charge has reason to suspect that an offence has been committed, he or a subordinate officer deputed by him must proceed to the relevant location to ascertain the facts and circumstances of the case and, if necessary, to take steps for locating and arresting the offender. Accordingly, investigation mainly consists of determining the facts and circumstances surrounding the alleged offence. By definition, it encompasses all proceedings conducted by a police officer under the Code for the collection of evidence. In this context, the investigating officer is vested with the authority to summon before himself any person who appears to have knowledge of the circumstances of the case. He may also examine such a person orally, either personally or through a duly authorized deputy, and may reduce the person’s statement to writing.

It was explained that when a written statement prepared by a police officer is available, that document may be used in any subsequent trial in the manner prescribed by section 162. Section 155 empowers the officer in charge of a police station to conduct a search in any location for the seizure of items deemed necessary for the investigation. The law requires that the searching officer personally carry out the search. However, if the officer in charge is unable to perform the search himself and no other competent officer is available, he may deputise a subordinate officer to conduct the search, provided that the reasons for such deputation are recorded in writing.

The investigating officer also possessed the authority to arrest any person suspected of committing an offence, as authorized by section 54 of the Code. The law obliges a police officer who is conducting an investigation to maintain a daily diary of his proceedings. In cases where the investigation cannot be finished within twenty‑four hours and the accused remains in custody, the officer must forward a copy of the diary entries to the magistrate having jurisdiction.

The judgment noted that when an investigation is carried out by a subordinate officer rather than by the officer in charge, the subordinate is required to report the results of the investigation to the officer in charge of the police station. After the investigation is completed, if the officer in charge concludes that there is insufficient evidence or no reasonable ground to proceed, he may order the release of the accused, if the accused is in custody, upon execution of a bond. Conversely, if the officer in charge determines that there is sufficient evidence or reasonable grounds to prosecute, he must take the necessary steps prescribed by section 170 of the Code to commence trial proceedings.

Regardless of whether the accused is released or the case proceeds to trial, the officer in charge must, upon completion of the investigation, submit a report to the magistrate in the form laid down by section 173 of the Code. The report must contain the various details required by the statute.

The Court then summarized the general stages of an investigation under the Code. First, the investigating officer proceeds to the scene of the alleged offence. Second, he ascertains the facts and circumstances surrounding the case. Third, he discovers and arrests the suspected offender. Fourth, he collects evidence related to the commission of the offence, which may involve: (a) examining various persons, including the accused, and reducing their statements to writing when deemed appropriate; and (b) searching places to seize objects that are necessary for the investigation and that may be required at trial. Finally, the officer forms an opinion on whether the material collected establishes a case to place the accused before a magistrate for trial, and if such an opinion is reached, he files a charge‑sheet in accordance with the relevant provision of the Code.

The Court observed that the structure of the Code of Criminal Procedure permits a police‑station officer to assign subordinate officers to perform certain investigative tasks, yet the ultimate responsibility for each of those tasks remains with the officer in charge of the police station. Section 168 explicitly requires that whenever a subordinate conducts an investigation, the subordinate must report the findings to the officer in charge. Likewise, the Court noted that the decisive stage of the investigation—forming the opinion on whether there exists sufficient ground to prosecute the accused—must be made by the officer in charge. No provision in the Code allows this final judgment to be delegated; the only delegation permitted under section 551 is for a superior officer to supervise or take part in the investigation.

In light of this overall scheme, the Court held that the reach of a statutory requirement such as section 5(4) of the Act must be interpreted according to the same principles. When a statute mandates that the investigation be carried out by a police officer of at least a specified rank, unless a magistrate specifically authorises a lower‑ranking officer, the provision implicitly requires that, absent such authorisation, the officer of the appropriate rank must conduct the investigation. The Court stressed that this does not obligate the senior officer to perform every investigative step personally, nor does it prevent him from obtaining assistance from deputies, to the extent that the Code allows a police‑station officer to do so. The senior officer is also not required to follow each procedural step in every individual case.

The Court further explained that when the Legislature enacts a provision in emphatic language, it reflects a clear policy intention. To understand that policy, the Court examined the Code’s treatment of offences alleged to be committed by public servants. A review of Schedule II shows that the majority of such offences are classified under Chapter IX, “Offences by, or relating to, public servants,” and Chapter XI, “Offences against public justice,” and that each of these offences is designated as non‑cognizable. The entries listed under sections 161 to 169, 217 to 233, 225‑A, as well as sections 128 and 129, illustrate this categorisation. The underlying purpose of rendering these offences non‑cognizable appears to be the protection of public servants, who often perform their duties under difficult circumstances, from frivolous or harassing investigations initiated by persons dissatisfied with official actions, unless a magistrate is convinced that a proper investigation is warranted.

The Court explained that the original statutory scheme required a magistrate to be convinced that an investigation was necessary before authorising such investigation. This requirement was intended to protect public servants from frivolous or harassing inquiries while they performed their duties, thereby allowing them to work without fear or favour. When the Legislature later decided to remove that protection for offences of corruption covered by the Act, it did so by making those offences cognizable. The Court inferred that the Legislature must have intended to replace the earlier safeguard with a new one, namely that investigations should be carried out by a police officer of a designated senior rank. In view of the unequivocal wording of subsection (4) of section 5 of the Act and the policy considerations underlying it, the Court found that the provision was mandatory rather than merely directory.

The Court noted that the Solicitor General had argued that the policy considerations only required that the charge‑sheet be prepared by the authorised officer after he had examined the material already gathered, and that, at most, the requirement might extend to the arrest of the public servant by an officer of the appropriate rank. The Court rejected this narrow view, stating that there was no reason to believe that the policy aimed to cover only some steps of the investigation while leaving others to lower‑ranking officers. According to the scheme of the Act, the entire investigation, whether carried out directly by the designated officer or through his deputies, must be under his responsibility. The Court also observed that the Act introduced two new rules of evidence—one under section 4 and another under section 5(3)—which were of an exceptional character and departed from ordinary criminal jurisprudence. It was therefore important for the accused that evidence be collected by an authorised and competent investigating officer, or at least that such officer be prepared to accept responsibility for the evidence. While the ultimate outcome of a trial depended on the evidence presented in court, the Court held that the rank, responsibility, and experience of a senior police officer could influence the nature and quality of the evidence gathered during the investigation. The Court further referred to numerous decisions of various High Courts cited by the parties, as well as an unreported full‑bench judgment of the Punjab High Court, which revealed a conflict of opinions. The Court observed that some authorities relied on section 156(2) of the Code of Criminal Procedure to argue that section 5(4) of the Act was merely directory and not mandatory.

The Court considered submissions that section 5(4) of the Act, together with the proviso to section 3, should be treated as merely directory and not as mandatory. To evaluate this claim, the Court set out the language of section 156 of the Code of Criminal Procedure. The provision reads: “156(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. (1) Criminal Appeals Nos. 25‑D and 434 of 1953 disposed of on 3rd May, 1954. (2). 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 argument advanced by some judges was that section 5(4) and the proviso to section 3 of the Act function in substance as an amendment or a supplementary provision to section 156(1) of the Code. In that view, it was suggested that the remedial effect of section 156(2), which cures the irregularity of an investigation conducted by a person not empowered under the section, should also apply to a breach of section 5(4), the proviso to section 3 of the 1947 Act, and section 5‑A of the 1952 Act.

With respect, the Court observed that the learned judges had overlooked the phrase “under this section” contained in subsection (2) of section 156. That phrase limits the operation of subsection (2) to investigations carried out by an officer who is not empowered under subsections (1) and (3) of the same section. Subsection (1) of section 156 expressly empowers the officer in charge of a police‑station to investigate a cognizable case without a Magistrate’s order, but confines that power to cases within the officer’s local jurisdiction. When that limitation is violated, subsection (2) provides a cure. However, subsection (2) cannot cure a violation of any other specific statutory rule that prohibits an officer of lower rank—such as one below the rank of Deputy Superintendent of Police—from conducting the investigation, unless that rule is expressly authorised by law. Consequently, the Court held that it is not permissible to interpret the unequivocal negative language of subsection (4) of section 5 of the Act, or the proviso to section 3 of the Act, as merely an amendment or a proviso to subsection (1) of section 156 of the Code. The Court further noted that some High Court judges had attempted to draw an analogy with subsection (2) of section 561 of the Code of Criminal Procedure. The Court found that such an analogy was unhelpful unless subsection (2) of section 561 were also treated as directory rather than mandatory, a position that is not evident from the language of that provision.

In this case the Court was clear that section 5(4) and the proviso to section 3 of the Act, together with the corresponding section 5‑A of Act LIX of 1952, are mandatory provisions and not merely directory. Consequently any investigation carried out in breach of those provisions is illegal. The Court then considered whether, and to what extent, a trial that follows such an illegal investigation is itself vitiated. It noted that a trial proceeds only after cognizance is taken, and cognizance is itself preceded by an investigation. This sequence forms the basic scheme of the Code of Criminal Procedure for cognizable offences. However, the Court emphasized that an invalid investigation does not automatically nullify the subsequent cognizance or the trial that is based on it. The matter before the Court was not the impact of breaching a mandatory rule that governs the competence or the procedure of the Court with respect to taking cognizance or conducting the trial. Rather, the Court was concerned only with whether such a breach amounts to an illegality that vitiates the proceedings or merely a procedural irregularity. The Court observed that a defect or illegality in the investigation, however serious, does not directly affect the Court’s competence or the procedural requirements for taking cognizance or for the trial itself.

The Court further explained that while a police report produced from an investigation is the material on which cognizance is taken under section 190 of the Code of Criminal Procedure, a valid and lawful police report is not the basis of the Court’s jurisdiction to take cognizance. Section 190 belongs to a group of sections titled “Conditions requisite for initiation of proceedings.” Its language differs markedly from that of the other sections in the same group, namely sections 193 and 195 to 199, which regulate the Court’s competence and bar its jurisdiction in certain cases unless those conditions are satisfied. Section 190 does not impose such a bar. Although clauses (a), (b) and (c) of section 190(1) are conditions for taking cognizance, the Court held that cognizance cannot be said to be prohibited or void merely because it is based on an invalid police report. An invalid report may still satisfy clause (a) or clause (b) of section 190(1), and consequently the cognizance taken is merely an error in a proceeding that precedes the trial. In such circumstances section 537 of the Code of Criminal Procedure becomes applicable. It reads: “Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity,”.

The Court noted that Section 537 of the Code of Criminal Procedure provides that no finding, sentence or order passed by a competent court shall be reversed on appeal or revision unless the error, omission or irregularity “has in fact occasioned a failure of justice”. Accordingly, if cognizance is actually taken on a police report that is tainted by a breach of a mandatory investigative provision, the trial that follows cannot be set aside unless it can be shown that the illegality in the investigation caused a miscarriage of justice. The Court observed that it is well‑settled law, as demonstrated in Prabhu v. Emperor (1) and Lumbhardar Zutshi v. The King (2), that an illegality committed during investigation does not affect the competence or jurisdiction of the trial court. Those authorities dealt with illegal arrests during investigation, whereas the present cases concern illegality relating to the machinery used for gathering evidence. Although this distinction may influence the issue of prejudice or miscarriage of justice, both decisions clearly indicate that the invalidity of the investigative process has no bearing on the court’s jurisdiction. The Court further expressed the view that where cognizance has indeed been taken and the case has proceeded to termination, the invalidity of the prior investigation does not vitiate the result unless a miscarriage of justice has been caused thereby (1) A.I.R. 1944 P.C. 73 149 (2) A.I.R. 1950 P.C. 26. However, the Court emphasized that the invalidity of the investigation should not be wholly ignored during trial. When a breach of a mandatory provision is brought to the court’s attention at a sufficiently early stage, the court, while not declining to take cognizance, must take appropriate steps to cure the illegality and rectify the defect, which may include ordering a fresh investigation as the circumstances of the individual case require. This approach is compatible with the scheme of the Code, as Section 202 empowers a magistrate taking cognizance of a complaint to order a police investigation. Likewise, such action falls within the inherent powers of the Special Judge, who for procedural purposes at trial is essentially in the position of a magistrate trying a warrant case. The Court held that if the illegality is highlighted early, it would be unfair to the accused to allow prejudice to remain unaddressed and to force him to rely on the ultimate remedy of proving, at the conclusion of the trial, that the error caused a failure of justice under the demanding burden imposed by Section 537. The Court further observed that even if the trial had proceeded to its conclusion, the early raising of the objection remains a relevant factor in assessing whether a miscarriage of justice has occurred.

The Court observed that if a trial proceeded to its conclusion, the accused would be required to demonstrate that a failure of justice had actually occurred because of the error. Section 537 of the Code of Criminal Procedure, however, explained that the fact an objection was raised at an early stage of the proceedings was an important consideration. Ignoring a breach that had been brought to the Court’s attention at such an early stage would, in effect, render a mandatory provision—enacted on public‑policy grounds for the protection of the accused—ineffective. The Court noted that the mandatory provision itself permitted an officer of a lower rank to conduct an investigation if the Magistrate granted permission. Nevertheless, the Legislature had not indicated that an investigation carried out by a lower‑ranking officer without such permission could not cause prejudice. When a Magistrate was approached for permission, he was required to be satisfied that there were good and sufficient reasons for authorising a lower‑rank officer to investigate. The Court emphasized that granting such permission was not a routine administrative act but an exercise of judicial discretion, to be exercised with regard to the underlying policy. Accordingly, the Court held that when a breach of this requirement was raised at an early stage of trial, the Court must examine the nature and extent of the violation and issue appropriate orders for reinvestigation, either in whole or in part, by such officer as the Court deemed suitable, keeping in mind the requirements of section 5‑A of the Act. In light of these considerations, the Court said that it had to decide the validity of the objection concerning the alleged violation of section 5(4) of the Act and determine the procedural course to be followed in the present proceedings. The learned Special Judge, before whom the objection under section 5(4) was raised, had taken evidence regarding the actual investigative steps taken in the matters. In the two matters that gave rise to Criminal Appeals Nos. 96 and 97 of 1954, the First Information Report in each case had been filed on 29‑June‑1949 based on a complaint made by the Director of Administration and Co‑ordination, Directorate of Industry and Supply. The FIR disclosed offences, including those punishable under section 5(2) of the Act, and consequently the cases were registered under various sections, including section 5(2). The investigation that was to be undertaken under the FIR was required, by virtue of section 5(4) of the Act, to be carried out by an officer of the appropriate rank. The charge‑sheets in both cases were filed on 11‑August‑1951 by Sub‑Inspector R. G. Gulabani of the Police, and it appeared from the record that he had applied to the Magistrate for permission to investigate.

The Court noted that R. G. Gulabani had applied to the Magistrate for permission to investigate the matters on 26‑3‑1951. His testimony indicated that, with respect to the case that gave rise to Criminal Appeal No 97 of 1954, Gulabani had undertaken no investigative work other than preparing the charge‑sheet. All earlier investigative steps had been performed by several officers holding the rank of Inspector of Police or Sub‑Inspector of Police, and none of those officers had obtained the mandatory sanction of the Magistrate required under section 5(4) of the Act. In the matter that led to Criminal Appeal No 96 of 1954, Gulabani’s evidence showed that he commenced investigation only after securing the Magistrate’s permission and conducted only a portion of the inquiry himself. The substantial part of the investigation was carried out by a number of other officers who were all below the rank of Deputy Superintendent of Police, and none of them had secured the requisite Magistrate’s sanction. The Court held that both of these instances amounted to clear violations of the mandatory provisions of section 5(4) of the Act. Consequently, the Court concluded that, in view of such violations, the Special Judge was required to revisit the procedural course to be followed in these two cases and to determine appropriate orders after reassessment.

Regarding the case that formed the basis of Criminal Appeal No 95 of 1954, the Court observed that the First Information Report filed on 30‑4‑1949 alleged offences only against Messrs Patiala Oil Mills, Dev Nagar, Delhi, and other parties, and did not implicate any public servant. Accordingly, the case was registered under offences punishable by section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, and not under any provision of the Prevention of Corruption Act. The investigation therefore proceeded in the ordinary manner. Evidence revealed that Inspector Harbans Singh began the investigation on 2‑5‑1949 and transferred it on 11‑7‑1949 to Inspector Balbir Singh. From that point forward, Balbir Singh conducted the entire investigation, examining as many as twenty‑five witnesses, according to his testimony. During this inquiry, it emerged that the two appellants and another public servant were potentially liable for prosecution under section 5(2) of the Act. Balbir Singh subsequently applied to the Magistrate for sanction under section 5(4) of the Act, which was granted on 20‑3‑1951, and he filed the charge‑sheet on 15‑11‑1951. He admitted that all investigative work he performed, except for filing the charge‑sheet, occurred before the Magistrate’s sanction was obtained. However, the Court held that the pre‑sanction investigation was legitimate because it related to the case registered under section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, and only when the material collected disclosed an offence under section 5(2) did the requirement for Magistrate’s sanction arise.

The Court observed that once it became clear that public servants had committed an offence punishable under section 5(2) of the Essential Supplies (Temporary) Powers Act, the question of whether the Magistrate’s sanction was required for the investigation inevitably arose. In that circumstance, the Court held that the continuation of the remaining portion of the investigation against the public servants, carried out by the same investigating officer after obtaining the Magistrate’s permission, was both reasonable and legitimate. Accordingly, the Court expressed the view that no defect existed in the investigation that would justify any interference by this Court. On that basis, the Court dismissed Criminal Appeal No. 95 of 1954. The Court then allowed Criminal Appeals Nos. 96 and 97 of 1954 and directed that the Special Judge should retrieve the two cases from which those appeals originated, place them back on his docket, and issue appropriate orders after re‑examining the matters in the light of the present judgment. With regard to Criminal Appeal No. 106 of 1954, the Court noted that this appeal, filed by special leave, challenged a common order of the High Court of Punjab that concerned Cases Nos. 19 to 25 of 1953 before the Special Judge, Delhi. The Court observed that the appeal raised the same questions that had already been disposed