iminal Appeal No138 of 1966
Appeal by special leave from the judgment and order dated March 22 1966 of the Allahabad High Court Lucknow Bench in Criminal Appeal No 82 of 1965
SP Sinha and M I Khowaja for the appellant
OP Rana for the respondent
The Judgment of the Court was delivered by Shah J
The appellant Healy was an employee of the NorthEastern Railway and was posted in March 1959 as a platform Inspector at Gorakhpur Railway Station
The appellant told Ghammoo a sweeper working under him that unless he was paid a bribe of Rs 15 Ghammoo would be marked absent
Ghammoo 950 at first demurred but later agreed to pay the amount demanded and to give a bottle of liquor and thereafter made a report to the RSO Special Police Establishment at Gorakhpur about the demand made by the appellant
Arrangements were made to set a trap
On March 27 1959 Ghammoo wentt to the office of the appellant and paid Rs 15 in currency notes which had been duly marked by the Special Police Establishment Officers and half a bottle of liquor
The appellant
after receiving the currency notes assured Ghammoo that he would not be harassed any more Thereafter the police officers and the witnesses who were watching the appellant rushed into his office and recovered the currency notes and the bottle of liquor from him
The appellant was prosecuted for offences under section 161 IP Code and section 51d read with section 52 of the Prevention of Corruption Act 1947 after obtaining the sanction of the Deputy Chief Commercial Superintendent
It was discovered during the course of the trial that the Deputy Chief Commercial Superintendent was not competent to sanction the prosecution of the appellant
The Special Judge at the request of the public prosecutor by order dated May 27 1960 quashed the proceeding
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent North Eastern Railway Gorakhpur and the proceeding was again started against the appellant on a charge for offences under section 161 IP Code and section 51d read with s 52 of the Prevention of Corruption Act 1947
The appellant was convicted by the Special Judge and was sentenced to suffer rigorous imprisonment for two years on each count the sentences to run concurrently
The order was confirmed in appeal by the High Court of Allahabad
The appellant has appealed to this Court with special leave
The evidence of Ghammoo and JK Mehta and VP Chaturvedi officers of the Special Police Establishment and two panchas Krishna Lal and Gandhi Singh was accepted by the Special Judge and by the High Court the Special Judge held that the appellant had under a threat compelled Ghammoo to give him Rs 15 and half a bottle of liquor
The marked currency notes were found on the person of the appellant when the police officers rushed into his office immediately after he received the currency notes from Ghammoo
The story of the appellant that Ghammoo had been instrumental in filing a false prosecution due to enmity was discarded
His story that the currency notes and the bottle of liquor were brought by Ghammoo voluntarily and had been placed on his table without any demand by him was also rejected
There is therefore clear evidence to establish the case for the prosecution that the appellant received a bribe from Ghammoo as a motive for forbearing to show in the exercise of his official functions disfavour against Ghammoo
951 Counsel for the appellant however raised three contentions in support of the appeal 1  The trial by the Special Judge was without jurisdiction because the appellant had been previously tried and had been acquitted in respect of the same offence
In support of this contention counsel contended that the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant under the Prevention of Corruption Act was a valid sanction and the order passed by the Special Judge on May 27 1960 quashing the proceeding at the request of the public prosecutor amounted in law to an order of acquittal and the appellant could not again be tried for the same offence
By virtue of section 6c of the Prevention of Corruption Act 1947 a Court may take cognizance of an offence punishable under section 161 IP Code or under section 5 2 of the Prevention of Corruption Act in the case of a public servant not employed in connection with the affairs of the Union or the affairs of a State only with the previous sanction of the authority competent to remove him from office
Cognizance was taken of the offences for which the appellant was tried at the first trial with the sanction of the Deputy Chief Commercial Superintendent North Eastern Railway Gorakhpur
On May 27 1960 the public prosecutor applied for withdrawal of the case of the prosecution on the ground that the sanction was ineffective
The Special Judge granted the request and ordered that the proceeding be quashed
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent North Eastern Railway Gorakhpur
It is contended that the Deputy Chief Commercial Superintendent was competent to sanction the prosecution of the appellant and the order quashing the trial operated as an order of acquittal
The appellant was appointed by the Traffic Manager of the OT Railway in 1947
After the amalgamation of that Railway with the North Eastern Railway the office of Traffic Manager was abolished and the powers of that Office were thereafter exercisable by the Chief Commercial Superintendent of the North Eastern Railway
Under r 1705 cl
c of the Indian Railway Establishment Code no railway servant is liable to be removed or dismissed by an authority lower than that by which he was appointed to the post held by him substantively
This rule in substance gives effect to article 311 1  of the Constitution
Since the appellant was appointed by the Traffic Manager of the OT Railway after amalgamation of that Railway the power to remove the appellant could be exercised by the Chief Commercial Superintendent
Counsel for the appellant urged that under cl
i of r 1704 of the Indian Railway Establishment Code the authorities specified in column 3 of Sch
I appended to the Rules in Ch
XVII of the State Railway Establishment Code Vol 1 may impose the penalties specified in column 4 upon the classes of railway servants shown in column 952 2 of that Schedule and Sch
I which occurs in Appendix III confers upon the Deputy Heads of Department full powers of removal from service
Consequently it was said the Deputy Chief Commercial Superintendent had the power to remove the appellant from service and was competent to grant sanction under section 6 of the Prevention of Corruption Act for the prosecution of the appellant and that the order passed by the Special Judge quashing the proceeding on May 27 1960 amounted to an order of acquittal
But r 1704 is subject to the provisions of r 1705 and by r 1705 it is expressly provided that a railway servant shall not be removed or dismissed by an authority lower than that by which he was appointed to the post head by him substantively
The powers exercisable under r 1704i being subject to cl
c of r 1705 and also to the provisions of article 311 of the Constitution the Deputy Chief Commercial Superintendent could not remove the appellant from service
It follows therefore that the Deputy Chief Commercial Superintendent had no power to grant sanction for prosecution of the appellant since he was an officer inferior in rank to the Officer who had appointed the appellant as a railway servant
The Court may take cognizance of an offence against a public servant for the offences set out in section 6 of the Prevention of Corruption Act only after the previous sanction of the specified authority is obtained
The Special Judge who had taken cognizance of thecase on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case and an order of acquittal passed by a Court which had no jurisdiction does not bar a retrial for the same offence
It is unnecessary therefore to consider whether the order quashing the proceeding amounted to an order of acquittal
2 The facts necessary to appreciate the second contention about the irregularity of the procedure followed by the Special Judge are these JK Mehta and VP Chaturvedi were examined as witnesses for the prosecution before Mr Fakhrul Hasan Special Judge
Their evidence was recorded in accordance with section 356 Code of Criminal Procedure under supervision of the Special Judge and record of the evidence was made in Hindi and an English memorandum of the evidence was also maintained by the Special Judge
The statements of the witnesses were read over to them and were signed by them in acknowledgment of their correctness
But Mr Fakhrul Hasan died before he could append his signature thereto
Before the successor of Mr Fakhrul Hasan JK Mehta and VP Chaturvedi were recalled and their evidence which was previously recorded was read over to them
They confirmed its correctness
The Special Judge also offered to counsel for the appellant opportunity to cross examine the witnesses but the offer was declined
No objection was raised to the reading over of the evidence to the witnesses
It was not suggested 953 that the witnesses should be re examined
The Special Judge thereafter subscribed his signature to the record of the statements of the witnesses and to the English memoranda of evidence
There is no suggestion of injustice actual or possible arising from the failure to comply strictly with the statute it is contended that failure to observe the letter of the law invalidated the trial
Section 356 1  of the Code of Criminal Procedure provides In all other trials before Courts of Session and Magistrate  the evidence of each witness shall be taken down in writing in the language of the Court either by the Magistrate or Sessions Judge with his own hand or from his dictation in open Court or m his presence and hearing and under his personal direction and superintendence and the evidence so taken down shall be signed by the Magistrate or Sessions Judge and shall form part of the record Evidence of the witnesses was recorded in the presence and hearing and the personal direction and superintendence of Mr Fakhrul Hasan
Mr Fakhrul Hasan died before he could subscribe his signature
It is true that the Legislature has enacted that the evidence so taken down shall be signed by the Magistrate or Sessions Judge
As observed by Lord Campbell in the case of the Liverpool Borough Bank vs Turner1 No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience
It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed
  in each case you must look to the subject matter consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory
 Section 356 deals with the mode of recording evidence
The object of the section is to maintain a correct record of the testimony of the witnesses
The section occurs in Ch
XXV of the Code and deals with the mode of taking and recording evidence in inquiries and trials
To ensure a fair trial it is provided that the evidence shall be recorded in the presence of the accused or where his presence is dispensed with in the presence of his lawyer 1  954 section 353  in cases tried before the Court of Session or Magistrates other than Presidency Magistrates the evidence shall be taken down in writing in the language of the Court either in his own hand by the presiding officer or under his direction in open Court or in his presence and hearing and under his personal supervision and shall be signed by him section 356 the evidence shall after it is completed be read over to each witness in the presence of the accused or his lawyer and it may if necessary be corrected Is 3601 if the evidence is taken down in a language different from the language in which it is given and the witness does not understand the language in which it is taken down it shall be interpreted to him Is3603 if the accused does not understand the language in which the evidence is given it shall be interpreted in the language understood by him and the statement of the accused shall be recorded in the form of questions and answers Is
3641 whereas the evidence of witnesses shall unless otherwise directed be taken in narrative form
Compliance with the provisions is insisted upon in the larger interest of justice but every departure from the strict letter of the law will not affect the validity of the trial
The object of the provisions being to ensure that a correct record is maintained of what is said in Court  by witnesses so that it may be available at a later stage of the trial and in appeal if the Court is satisfied that in a given case the record notwithstanding any departure from the provisions is correct the irregularity may be ignored if no injustice has resulted therefrom
A rule relating tothe appending of the signature of the Judge on the record of the evidence does not go to the root of the trial
Section 537 Code of Criminal Procedure is intended to meet situations in which the strict letter of the law is not complied with
The section insofar as it is material provides Subject to the provisions hereinbefore contained no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Ch
XXVII or on appeal or revision on account a of any error omission or irregularity in the complaint summons warrant proclamation order judgment or other proceeding before or during trial or in any inquiry or other proceeding under this Code or Explanation
In determining whether any error omission or irregularity in any proceeding under this Code has occasioned a failure of justice
the Court shall have regard to the fact whether the objection could and 955 should have been raised at an earlier stage in the proceedings
 There was irregularity in maintaining the record of the evidence at the trial because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence
There was therefore no strict compliance with the provisions of section 3561 Code of Criminal Procedure
But no ground for holding that the trial is vitiated is made out merely because instead of the Judge who heard the evidence his successor had signed the record
In Abdul Rahman vs King Emperor1 at the trial of a person accused of a charge for abetment of forgery the deposition of witnesses were read over to them while the case otherwise proceeded and the evidence of some other witnesses was handed over to them to read to themselves
There was violation of section 360 Code of Criminal Procedure which provided that deposition of each witness should be read over to him in the  presence of the accused or his pleader
An objection was raised as to the validity of the order of conviction on the ground that the requirements of section 360 of the Code of Criminal Procedure were not complied with
No inaccuracy in the deposition was suggested but only failure to comply with the strict requirements of section 360 was made the ground on which the trial was contended to be vitiated
The Judicial Committee observed that there had been no actual or possible failure of justice
According to the Judicial Committee reading over of the depositions of the witnesses while the case was otherwise proceeding was not a violation of section 360 of the Code and that giving of depositions to witnesses to read to themselves was rightly treated by the High Court as an irregularity curable under section 537 of the Code of Criminal Procedure
Failure to record the evidence of witnesses JK Mehta and VP Chaturvedi again in the presence and under the superintendence of the Judge who signed may be a regrettable irregularity but it does not vitiate the trial
Counsel for the appellant however invited our attention to the judgment of the Privy Council in Nazir Ahmad vs The King Emperor2 and contended that where the Legislature has prescribed a method in respect of a certain thing it means that that is the only method in which the thing must be done or not at all
Counsel said that the method of recording the evidence and of maintaining the record is prescribed by section 356 of the Code of Criminal Procedure and no substitute is permissible
In our judgment the principle of Nazir Ahmed s case2 has no application here
That was a case in which the appellant who was charged with dacoity and murder was convicted on the strength 1 LR 54 IA 96
2 LR 63 IA 372
956 of a confession said to have been made by him to a magistrate of the class entitled to proceed under the provisions of section 164 of the Code of Criminal Procedure relating to the recording of Confessions
The confession was not recorded according to the procedure prescribed by section 164 of the Code of Criminal procedure and the record of the confession was not therefore available as evidence
The Magistrate however appeared as a witness and gave oral evidence about the making of the confession
The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible
According to the Judicial Committee the effect of sections 164 and 364 of the Code of Criminal Procedure construed together is to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation
The rule that where a power is given to do a certain thing in a certain way the thing must be done in that way to the exclusion of all other methods of performance or not at all was applicable to a magistrate who is a judicial officer acting under section 164
In that case in the view of the Judicial Committee the only manner in which a judicial confession could be recorded is the one prescribed by section 164 of the Code of Criminal Procedure and if it is not so corded no evidence of the making of that confession was admissible
The reasons for that view were explained by the Judicial Committee
A judicial confession in a trial is of greater sanctity because it is recorded before an independent Judicial Officer after taking full precautions to ensure that the accused making the confession is free from all police or other influence and after the accused has had sufficient opportunity of considering whether he should or should not make confession and that there is no compulsion upon the accused to make a confession
The law requires that the accused must be explained that he is not bound to make the confession
A confession obtained in such circumstances has great probative value in considering its voluntary character
Section 164 prescribes stringent rules as to the manner in which the confession has to be recorded
If the rules are not complied with there is no guarantee that the confession has been voluntarily made
It is in the context of these provisions that the Judicial Committee held that confession which is not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure cannot be deposed to by a Magistrate as if it was an extra judicial confession
The Judicial Committee observed that when the Legislature has prescribed the method of recording the confessions under section 164 and section 364 it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves
They further observed As a matter of good sense the position of accused persons and the position of magistracy are both to be 957 considered
An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records
Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath
So with regard to the magistracy it is for obvious reasons most undesirable that magistrates and judges should be in the position of witnesses in so far as it can be avoided
Sometimes it cannot be avoided as under section 533 but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other
In their Lordships  view it would be particularly unfortunate if magistrates were asked at all generally to act rather as police officers the as judicial persons to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code and to be at the same time freed notwithstanding their position as magistrates from any obligation to make records under section 164 No such considerations apply to the record of evidence of witnesses given in open court made in the presence and under the personal supervision of a Judge and in the presence of the accused and his lawyer
3 It was then urged that the investigation was made by an officer who had no authority to investigate the offence
After Ghammoo made his complaint sanction of the Additional District Magistrate Judicial was obtained for investigation of the case by a police officer below the rank of a Deputy Superintendent of Police
Section 5A1 d of the Prevention of Corruption Act 1947 provides No police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under section 161 section 165 or section 165A of the IPC or under section 5 of this Act without order of a Presidency Magistrate or a Magistrate of the First Class as the case may be or to make any arrest therefore without a warrant   The Legislature has provided that ordinarily investigation of a case against a public servant should be made by an officer not below the rank of a Deputy Superintendent of Police in connection with the charge of bribery and related offences
But the Legis 958 lature has expressly provided that an Officer below the rank of a Deputy Superintendent of Police may investigate those offences with the order of a Presidency Magistrate or a Magistrate of the First Class
In the present case the order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained authorising an Officer below the rank of a Deputy Superintendent of Police to investigate the offence
No objection is raised to the regularity of the proceeding before the Additional District Magistrate nor is there any ground that for an oblique motive services of an officer below the rank of a Deputy Superintendent of Police were used in making the investigation against the appellant
The third contention must also fail
The appeal fails and is dismissed
RKP section Appeal dismissed


Summary:
The appellant who was a Platform Inspector employed by the North Eastern Railway was prosecuted for offences under section 161 IPC and section 51d read with section 52 of the Prevention of Corruption Act 1947 for accepting a bribe from another subordinate railway employee
The prosecution was commenced after obtaining the sanction of the Deputy Chief Commercial Superintendent but it was discovered during the trial that this officer was not competent to sanction the appellant s prosecution
The trial Judge at the request of the Public Prosecutor quashed the proceedings
Thereafter
sanction was obtained from the Chief Commercial Superintendent and in fresh proceedings for the same offences the appellant was convicted and the order of conviction was confirmed in appeal by the High Court
In appeal to this Court it was contended on behalf of the appellant i that in view of the provisions of cl
i of r 1704 of the Indian Railway Establishment Code the Deputy Chief Commercial Superintendent had the power to remove the appellant from service and was competent to grant sanction under section 6c of the Prevention of Corruption Act for his prosecution the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid and the order passed by the Special Judge quashing the proceeding amounted in law to an order of acquittal so that the appellant could not again be tried for the same offence ii that in relation to the evidence of two witnesses for the prosecution the provisions of section 356 Cr
PC had not been complied with in that the evidence of these witnesses was recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office after the death of the former and iii that the investigation was made by an officer who
in view of the provisions of section 5A1d of the Prevention of Corruption Act 1947 had no authority to investigate the offence as he was a Police Officer below the rank of a Deputy Superintendent of Police
949 HELD Dismissing the appeal i The powers exercisable under r 1704 i being subject to cl
c of r 1705 of the Indian Railway Establishment Code and also to the provisions of article 311 of the Constitution in the present case the Deputy Chief Commercial Superintendent could not remove the appellant from service and therefore had no power to sanction his prosecution
the trial judge who had taken cognizance of the case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence
952 C E ii There was irregularity in maintaining the record of the evidence at the trial because the evidence was recorded before one Judge and another Judge
subscribed his signature to the record of that evidence and on that account there was nOn compliance with the provisions of section 3561 CrPC but this was an irregularity curable under section 537 Cr
PC and did not vitiate the trial
955 B E The object of the provisions in the Code relating to the recording of evidence is to ensure that a correct record is maintained of what is said in court by witnesses and the record may be available at a later stage of the trial and in appeal
If the court is satisfied that in a given case the record notwithstanding any departure from the provisions relating to maintenance of the record is correct the irregularity may be ignored if no injustice has resulted therefrom
954 D Liverpool Borough Bank vs Turner   referred to
Abdul Rahman vs King Emperor LR 54 IA 96 distinguished
iii By section 5A1d the legislature has expressly provided that an officer below the rank of a Deputy Superintendent of Police may conduct the investigation with the order of a Presidency Magistrate or a Magistrate of the First Class
In the present case such are order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained and there was compliance with the provisions of section 5A1d
957 H