State of Madhya Pradesh vs Mubarak Ali

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 141 of 1958

Decision Date: 3 February 1959

Coram: P.B. Gajendragadkar, A.K. Sarkar, Subba Rao

In this matter, the Supreme Court recorded that the case titled State of Madhya Pradesh versus Mubarak Ali was decided on 3 February 1959. The judgment was delivered by a bench that included Judges P. B. Gajendragadkar, A. K. Sarkar and Justice Subbarao K. The official citation of the decision appears as 1959 AIR 707 and 1959 SCR Supl. (2) 201, with subsequent citations in various law reports. The case concerned the provisions of the Prevention of Corruption Act, 1947, specifically Section 5A, as well as Section 4(1) of the Code of Criminal Procedure, 1898. Section 5A of the Prevention of Corruption Act provides that no police officer below the rank of Deputy Superintendent shall investigate any offence punishable under sections 161, 165 or 165A of the Indian Penal Code or under section 5(2) of the Act unless a magistrate of the first class has first passed an order authorising such investigation.

On 11 January 1955, the manager of a company, identified in the record as “B”, informed the Sub‑Inspector of the Special Police Establishment that the respondent, an Assistant Station Master, was demanding a bribe in exchange for forwarding the company’s goods by rail. Acting on this information, the Sub‑Inspector organised a trap, approached the scene, questioned the Assistant Station Master, searched his person and recovered marked currency notes and other items. The Sub‑Inspector then submitted an application to the District Magistrate, stating that he had been deputed to investigate the matter and requesting, under Section 5A of the Prevention of Corruption Act, permission to conduct the investigation. The Magistrate responded with an order simply stating “permission given”. Neither the Sub‑Inspector’s application nor the magistrate’s order identified any material placed before the magistrate, nor explained the reasons for granting permission.

Subsequently, a charge‑sheet was filed before a Special Judge. The respondent raised objections, challenging, among other points, the validity of the magistrate’s permission for the Sub‑Inspector to investigate. The Special Judge rejected the objection. On revision, the High Court set aside the Special Judge’s order and directed that, “in order to rectify the defects and cure the illegality,” the investigation should be carried out by a Deputy Superintendent of Police while the case remained pending. The State of Madhya Pradesh appealed the High Court’s order by way of special leave. The Supreme Court held that the statutory safeguards prescribed in Section 5A of the Prevention of Corruption Act must be strictly observed, as they were enacted to protect the public interest and to prevent frivolous or vexatious prosecutions.

The Court emphasized that the safeguards under section five A of the Prevention of Corruption Act must be strictly observed because they were created in the public interest and guarantee against frivolous and vexatious prosecutions. A magistrate could not simply transfer his discretionary authority to a police officer but had to exercise it after reviewing the material presented to him at the time permission was granted. He also needed to be convinced that, due to administrative exigencies, there existed sufficient reason to entrust the investigation to a subordinate officer. Whenever an officer other than the designated one sought to commence an investigation, the officer had to obtain a magistrate’s order empowering him before proceeding. It was preferable that such an order openly state, on its face, the reasons for granting the permission. If the accused contested the validity of the permission order, the prosecution had to act at the earliest opportunity. It had to produce evidence that the magistrate granted permission only after being satisfied that it was advisable based on the material placed before him. The Court relied upon the decisions in H. N. Rishbud & Inder Singh v. State of Delhi, [1955] 1 S.C.R. 1150 and Viswabhusan Naik v. The State of Orissa, [1955] 1 S.C.R. 92. The Court further held that an investigation began as soon as a police officer received information about an alleged offence. Since section five of the Act defined attempting to obtain any gratification from any person as an offence, any steps taken by the Sub‑Inspector after receiving the information constituted an investigation.

The appeal was filed under special leave against the Madhya Pradesh High Court judgment dated November twenty‑eighth, 1957. That judgment had directed the Special Judge in Indore to order the Deputy Superintendent of Police to restart the investigation. The appellant was represented by counsel, while the respondent did not appear before the Court. The judgment was delivered on February third, 1959, by Justice Subbarao. The case involved Shri Mohinder Nath Bhalla, who managed the Daisy Sewing Machine Company Limited at Bhopal. On January eleventh, 1955, between twelve and one in the afternoon, he approached the Sub‑Inspector of the Special Police Establishment at Gwalior and gave a statement about a corruption incident. He reported that his company had set up a stall at the Gwalior Mela and that he needed to book empty wooden cases of machines and parts for transport to Delhi. When he visited the railway station to arrange the booking, the Station Master demanded ten annas per case as an illegal gratification, which Bhalla refused to pay. Subsequently, the Assistant Station Master agreed to accept eight annas per case and asked Bhalla to bring the wooden cases between two and four in the afternoon on the same day. Based on this allegation, Bhalla requested the police to intervene and to put an end to such corruption. The police officer accompanied Bhalla to his stall at the Mela, inspected twenty wooden cases—twelve large and eight small—prepared for booking, and accepted a typed complaint signed by Bhalla and attested by two witnesses. With the officer’s assistance, a trap was laid by recording the numbers of the rupee notes intended as bribe to the Assistant Station Master and having the witnesses attest the memorandum. The rupee notes were then handed to Bhalla in the presence of the witnesses, who were instructed to listen to Bhalla’s conversation with the Assistant Station Master when the bribe was paid.

In this case, the Assistant Station Master consented to receive a payment of eight annas for each wooden case and instructed Shri Mohinder Nath Bhalla to bring the cases to the station between two and four in the afternoon of the same day, that is, 11 January 1955. Acting on Bhalla’s allegation, the police were asked to intervene in order to halt the alleged corruption. The Sub‑Inspector accompanied Bhalla to his stall at the Gwalior Mela and observed twenty wooden cases—twelve large and eight small—ready for booking. Bhalla presented the officer with a typed complaint that he had signed and that two witnesses had attested. With the Sub‑Inspector’s assistance, a trap was arranged: the specific serial numbers of the rupee notes intended as bribe were entered into a memorandum that was also attested by the witnesses. The notes were then handed to Bhalla in the presence of the witnesses, who were instructed to watch and overhear the entire transaction. Bhalla was told to pay the amount to the Assistant Station Master when demanded, ensuring that the witnesses could see the bribe being received, and that he should give a pre‑arranged signal after the payment so that the police could intervene immediately.

The plan was executed exactly as agreed. After a brief negotiation, the Assistant Station Master accepted the bribe and Bhalla gave the agreed signal. The Sub‑Inspector then proceeded to the station office, identified himself to the Assistant Station Master in front of the witnesses, and demanded that the latter produce the money he had just received. The Assistant Station Master disclosed his name, produced the rupee notes that he had kept in his pocket, and handed them over to the officer. The Sub‑Inspector counted the notes and found that their serial numbers corresponded precisely with those recorded in the memorandum. A search of the Assistant Station Master’s person yielded additional articles, which were also seized. A similar search of Bhalla’s shirt uncovered two currency notes that had not been handed to the Assistant Station Master because the agreed amount had been reduced; these notes likewise matched the numbers noted in the memorandum. All seized items were recorded in a memorandum prepared in the presence of the witnesses, who signed it. The forwarding note, together with the record copy of the railway receipt prepared for the booking of the twenty wooden cases to New Delhi, was taken into possession, and a separate memorandum concerning those documents was also prepared. An inventory of the twenty wooden cases that remained on the platform near the weighing machine, as booked by the Assistant Station Master, was compiled and attested by the witnesses. Based on these facts, the Sub‑Inspector concluded that the described events constituted the offences alleged.

It was recorded that offences punishable under sections 120‑B and 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act 2 of 1947), had been committed by the Assistant Station Master, Shri Mubarak Ali, and the pointsman, Shri Mool Chand, of Golakamandir railway station. On the same day the Sub‑Inspector sent a report of these facts to the Special Police Establishment Office, Madhya Bharat. The office entered the report in its register on 14 January 1955. Seven days later, on 21 January 1955, the Sub‑Inspector filed an application before the Additional District Magistrate (Judicial), Gwalior, seeking permission to investigate the offences under the aforementioned statutory provisions. The record does not disclose any further action taken by the Sub‑Inspector after he obtained the Magistrate’s permission. On 1 October 1955, a charge‑sheet was filed before the Special Judge, Anti‑Corruption, Indore. Soon after the matter was taken up for trial, the respondent raised objections, challenging among other things the validity of the Additional District Magistrate’s order granting investigative permission. The exact scope of those objections was not placed before the Court, and therefore remains unclear. The Special Judge appeared inclined to resolve the question of delegation of investigative power without further delay, but the prosecution requested an adjournment, arguing that an appeal had been filed in the High Court against a similar order that required the prosecution to give evidence on the same issue, and that the appeal was still pending. Although the Judge was initially reluctant to grant the adjournment, he issued an order on 3 December 1955 granting a three‑week adjournment, stating that “the Special Police Establishment Office might not have any grievance on that account”. The subsequent events between that date and the final disposal of the objections on 21 August 1957 are not recorded in the material before us.

On 21 August 1957, the Special Judge issued an order discharging Shri Mool Chand, the pointsman, and charging Shri Mubarak Ali, the Assistant Station Master, under section 161 of the Indian Penal Code. In that order, the Judge—who appears to have been a different officer from the one who granted the 1955 adjournment—rejected the accused’s objection by observing that, at the time the Magistrate gave his sanction, there existed numerous documents relating to a case against the accused. The Judge held that the Magistrate could have examined those documents and thereby satisfied himself that a prima facie case existed, and therefore there was no reason to believe that the Magistrate had failed to peruse the papers before granting permission. The accused filed a Revision of that order before the High Court of Madhya Pradesh. The High Court concluded that the Sub‑Inspector had applied for permission ten days after the investigation had already begun and that the Magistrate had granted the permission as a mere routine act without proper consideration of whether such permission was advisable. Consequently, the High Court set aside the Special Judge’s order and directed that the investigation be redone by the Deputy Superintendent of Police, so as to cure the procedural defect and eliminate the illegality while the case remained pending on his file.

The High Court observed that the magistrate had failed to satisfy himself that there were good and sufficient reasons for authorising a police officer of lower rank to conduct the investigation, and that the permission had been granted merely as a routine matter. Consequently, the High Court set aside the order of the Special Judge and directed that, in order to correct the procedural defect and cure the illegality, the Deputy Superintendent of Police should be instructed to carry out the investigation himself while the case remained pending on his file. The State challenged this judgment by filing the present appeal against the High Court’s order. Counsel appearing for the State raised two separate points before the Court. The first point contended that the High Court was not justified in holding that the magistrate had granted the permission as a mere routine exercise without first satisfying himself as to the advisability of giving such permission. The second point asserted that the High Court was incorrect in concluding that the investigation had begun ten days before the Sub‑Inspector obtained the magistrate’s permission.

To address the first contention, the Court set out the relevant statutory framework of the Prevention of Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act. Section 3, as it stood before the Prevention of Corruption (Amendment) Act, 1955 (50 of 1955), provided that “An offence punishable under section 161 or section 165 or section 165A of the Indian Penal Code (Act 45 of 1860) shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898 (Act 5 of 1898), notwithstanding anything to the contrary contained therein.” Section 4 stated that “(1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code (Act 45 of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.” The preamble of the Act indicated that it was enacted to make more effective provisions for the prevention of bribery and corruption among public servants, introducing a definition of criminal misconduct in the discharge of official duty and new presumptions against accused persons. In 1952, by Act 59 of 1952, section 5A was inserted, apparently on the basis of experience gained, to protect public servants against harassment and victimisation, reflecting the legislative intent that while corruption must be eradicated, honest public servants should be able to perform their duties free from false, frivolous and malicious accusations.

In this case, the Court noted that while eliminating corruption was an objective, it was also necessary to ensure that truthful servants could perform their functions without being subjected to baseless, frivolous or malicious allegations. To accomplish this dual aim, sections five A and six of the Prevention of Corruption Act introduced two specific safeguards. The first safeguard prohibited any police officer below a prescribed rank from investigating offences covered by sections one sixty one, one sixty five or one sixty five A of the Indian Penal Code. The safeguard also barred such officers from investigating offences under sub‑section two of section five of the Act unless they acted on an order issued by a presidency magistrate or a magistrate of first class. Finally, the safeguard required that any arrest under those provisions could be made only with a warrant. The prescribed ranks varied according to location. In the presidency towns of Madras and Calcutta, the officer could not be below the rank of assistant commissioner of police. In the presidency town of Bombay, the officer could not be below the rank of superintendent of police. Elsewhere, the officer could not be below the rank of deputy superintendent of police. The second safeguard required that no court could take cognizance of an offence punishable under sections one sixty one, one sixty four or one sixty five of the Indian Penal Code. It also barred cognizance of an offence under section five (2) of the Act when the alleged crime was committed by a public servant. Such cognizance could occur only if the appropriate government had previously given its sanction, as required by section six. These statutory safeguards were intended to be strictly observed because they were fashioned in the public interest to prevent frivolous and vexatious prosecutions.

The legislature placed confidence in officers of assured status and rank. Nevertheless, it added an extra guarantee for lower‑ranking police officers, requiring a prior order from a presidency magistrate or a magistrate of the first class. The status of the magistrate was meant to assure the bona‑fide nature of the investigation. Consequently, it is self‑evident that a magistrate cannot simply delegate his discretion to a police officer. He must exercise that discretion after considering the material that has been presented to him at that stage. Moreover, the magistrate must be convinced that, because of administrative convenience, there exists a sufficient reason to entrust the investigation to a subordinate police officer. The Court referred to its earlier decision in H. N. Rishbud and Inder Singh v. State of Delhi, where it emphasized the necessity of strict compliance with the provisions of section five A. Judge Jagannadhadas, delivering the judgment, observed at page one thousand one hundred fifty nine of the Supreme Court Reporter that Legislature had decided to remove the protection afforded to servants concerning investigations of corruption offences. He noted that it must have been considered essential to introduce a substitute safeguard against undue harassment. He added that, having regard to the peremptory language of subsection four of section five of the Act and the policy underlying it, the provision must be regarded as mandatory.

The Court noted that the provisions of section 5(4) and the proviso to section 3 of the Prevention of Corruption Act, together with the corresponding section 5‑A of Act LIX of 1952, are to be regarded as mandatory rather than directory. After addressing the argument raised on behalf of the State, the learned Judge concluded at page 1162 that “we are, therefore clear in our opinion that section 5(4) and proviso to section 3 of the Act and the corresponding section 5‑A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality”. The Court then turned to the scope of section 6 of the Act as examined in Biswabhusan Naik v. The State of Orissa. One issue before that Court was whether the sanction issued by the Government was invalid. Rejecting that contention, Justice Bose observed at page 95 that the judgment of the Judicial Committee, although dealing with clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, offered principles applicable to the present context. He explained that a sanction under the Prevention of Corruption Act need not be in any particular form, need not be in writing, and need not set out the factual basis for the sanction, just as clause 23 of the Order did not require such particulars. The desirability of including facts was emphasised because, when facts are omitted from the sanction, proof must be supplied aliunde to show that the sanction corresponds to the facts constituting the alleged offence; however, an omission of the factual details is not fatal provided that those facts can be, and are, established by some other means (1) [1955] 1 S.C.R. 92.

While the earlier decision underscored the protective shield the Act offers public servants against harassment, the later decision highlighted the importance of furnishing all necessary facts in a sanction order and the parallel requirement for a magistrate’s order, together with the need for proof aliunde when facts are not disclosed in the sanction. Applying these two principles, the Court held that when an officer who is not the designated investigating officer seeks to conduct an inquiry, he must first obtain an order from a magistrate empowering him to investigate. It is advisable that such a magistrate’s order, on its face, disclose the reasons for granting permission. If this salutary practice is not followed, the prosecution bears the burden of proving, when challenged, that the magistrate actually considered the relevant circumstances before authorising a subordinate police officer to investigate. In the present case, although the accused raised an objection as early as 1955 on the ground that the permission order was invalid, the prosecution, despite the passage of many years between the filing of the petition and the issuance of the Sessions Judge’s order, made no attempt to adduce evidence to support the contention that the magistrate had granted permission after satisfying himself of its advisability.

In this case the Court noted that the prosecution did not produce any evidence to show that the Magistrate granted permission to the Sub‑Inspector only after being satisfied of the advisability of such permission on the basis of material placed before him. The sole material that was before the Sessions Judge consisted of the Sub‑Inspector’s application to the Magistrate seeking permission and the order that the Magistrate issued on that application. In the application the Sub‑Inspector asserted that he had been deputed to investigate the case and therefore permission could be granted to him under section 5‑A of the Act. The Magistrate, relying on that application, passed an order simply stating “permission given”. Neither the application nor the order disclosed any material that had been considered by the Magistrate in granting the permission. On the face of it, the Court found, as had the High Court, that the Magistrate appeared not to have appreciated the significance of his order and had mechanically issued it based solely on the application, which contained no reasons, presumably because he thought that only a formal compliance with the statutory provision was required. A request was made before the High Court that the prosecution be given an opportunity to produce the necessary evidence to support the Magistrate’s order, but the learned High Court judge correctly refused to entertain that belated request. Consequently, the Court agreed without hesitation with the High Court that the requirements of section 5‑A of the Act had not been strictly complied with in the present case and that no further question arose for consideration. However, counsel for the State argued that the High Court’s observation that the Magistrate’s permission was obtained ten days after the investigation had begun was inaccurate, and the Court briefly examined that contention. Section 4(1) of the Code of Criminal Procedure defines “investigation” to include all proceedings under the Code for the collection of evidence carried out by a police officer or any other person authorized by a Magistrate. Chapter XIV of the Code prescribes the procedure for investigation, which commences when a police officer receives information about an offence. Investigation generally comprises the following steps: proceeding to the spot; ascertaining the facts and circumstances of the case; discovering and arresting the suspected offender; collecting evidence related to the commission of the offence, which may involve examining various persons, including the accused, and recording their statements in writing if the officer deems it appropriate, as well as searching places and seizing items necessary for the investigation and to be produced at trial; and finally forming an opinion as to whether, based on the material collected, there is a case to commit the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by filing a charge‑sheet under section 173.

In this case the Court explained that, based on the material collected, the police must determine whether there is sufficient ground to place the accused before a Magistrate for trial and, if that is so, to proceed by filing a charge‑sheet under section 173. The Court cited the precedent set in H. N. Rishbud and Inder Singh v. The State of Delhi (1). From the facts narrated earlier it was evident that on 11 January 1955 Shri Bhalla provided the Sub‑Inspector with information concerning an alleged attempt by the Station Master and the Assistant Station Master to obtain a bribe from him. Section 5 of the Act makes an attempt to obtain any gratification for oneself or for another a punishable offence, and therefore the information supplied by Shri Bhalla necessarily related to an offence. Subsequently, the Sub‑Inspector, after assisting Shri Bhalla in setting a trap for the accused, arrived at the scene, questioned the accused, searched his person and recovered the marked notes and other articles that were in his possession. He also searched the informant, Shri Bhalla, and recovered additional marked notes that had not been handed over to the accused. The officer seized twenty wooden boxes that were intended to be booked, together with the forwarding note and the record copy of the receipt/record (R/R). He prepared memoranda documenting each of these recoveries and had the memoranda duly attested by witnesses. Relying on the investigation he forwarded a report to the Special Police Establishment Office in Indore. The Court noted that the record did not disclose what further investigative steps, if any, were taken between 14 January and 21 January, the period during which the Sub‑Inspector obtained permission from the District Magistrate. Accordingly, the Court agreed with the High Court that the investigation had effectively begun on 11 January, i.e., ten days before the Sub‑Inspector secured the Magistrate’s permission. The appeal was therefore dismissed.