minal Appeals Nos
95 to 97 and 106 of 1954
1151 Appeal by Special Leave from the Judgment and Order dated the 24th August 1953 of the High Court of Judicature for the State of Punjab Circuit Bench Delhi in Criminal Revision Nos
109 D 122 D and 123 D of 1953 arising out of the Judgment and Order dated the 25th May 1953 of the Court of Special JudgeDelhi in Corruption Case No 14 of 1954 from the Judgment and Order dated the 27th August 1954 of the High Court of Judicature for the State of Punjab Circuit Bench Delhi in Criminal Miscellaneous No 131 D of 1954
H J Umrigar and Rajinder Narain for appellant No 1
C K Daphtary Solicitor General of India G N Joshi P A Mehta and P G Gokhale with him for the respondent
December 14
The Judgment of the Court was delivered by JAGANNADHADAS J
These are appeals by special leave against the orders of the Punjab High Court made in exercise of revisional jurisdiction reversing the orders of the Special Judge Delhi quashing certain criminal proceedings pending before himself against these appellants for alleged offences under the Penal Code and the Prevention of Corruption Act 1947
The Special Judge quashed the proceedings on the ground that the investigations on the basis of which the appellants were being prosecuted were in contravention of the provisions of sub section 4 of section 5 of the Prevention of Corruption Act 1947 and hence illegal
In Appeal No 95 of 1954 the appellants are two persons by name HN Risbud and Indar Singh
In Appeals No 96 and 97 of 1954 HN Risbud above mentioned is the sole appellant
These appeals raise a common question of law and are dealt with together
The appellant Risbud was the Assistant Development Officer Steel in the office of the Directorate General Ministry of Industry and Supply Government of India and the appellant Indar Singh was the Assistant Project Section Officer Steel in the office of the Direc 1152 torate General Ministry of Industry and Supply Government of India
There appear to be a number of prosecutions pending against them before the Special Judge Delhi appointed under the Criminal Law Amendment Act 1952 Act XLVI of 1952
We are concerned in these appeals with Cases Nos
1213 and 14 of 1953
Appeals Nos 95 96 and 97 arise respectively out of them
The cases against these appellants are that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock holders of these articles
The charges therefore under which the various accused including the appellants are being prosecuted are 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 respect of such of these accused as are public servants there are also charges under section 52 of the Prevention of Corruption Act 1947
Under section 54 of the Prevention of Corruption Act 1947 a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under sub section 2 of section 5 without the order of a Magistrate of the First Class
The first information reports in these cases were laid in April and June 1949 but permission of the Magistrate for investigation as against the public servants concerned by a police officer of a rank lower than a Deputy Superintendent of Police was given in March and April 1951
The charge sheets in all these cases were filed by such officers in August and November 1951 ie subsequent to
the date on which permission as above was given
But admittedly the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigate by an officer of a lower rank was accorded
It appears from the evidence taken in this behalf that such investigation was con 1153 ducted not by any Deputy Superintendent of Police but by officers of lower rank and that after the permission was accorded little or no further investigation was made
The question therefore that has been raised is that the proceedings by way of trial initiated on such charge sheets are illegal and require to be quashed
To appreciate the argument it is necessary to notice the relevant sections of the Prevention of Corruption Act 1947 Act II of 1947 hereinafter referred to as the Act
Section 3 of the Act provides that offences punishable under section 161 or 165 of the Indian Penal Code shall be deemed to be cognizable offences
Section 4 enacts a special rule of evidence against persons accused of offences under section 161 or 165 of the Indian Penal Code throwing the burden of proof on the accused
Broadly stated this section provides that if it is proved against an accused that lie has accepted or obtained gratification other than legal remuneration it shall be presumed against him that this was so accepted or obtained as a motive or reward
 such as is mentioned in section 161 of the Indian Penal Code
Sub sections 1 and 2 of section 5 create a new offence of criminal misconduct in discharge of official duty by a public servant punishable with imprisonment for a term of seven years or fine or both
Sub section 3 thereof enacts a new rule of evidence as against a person accused of the commission of offences under section 51 and 2
That rule broadly stated
is that when a person so accused or any other person on his behalf is in possession of pecuniary resources or property disproportionate to the known sources of his income and for which he cannot satisfactorily account the Court shall presume him to be guilty of criminal misconduct unless he can displace that presumption by evidence
The offence of criminal misconduct which has been created by the Act it will be seen is in itself a cognizable offence having regard to item 2 of the last portion of Schedule 11 of the Code of Criminal Procedure under the bead offences against the other laws
In the normal course therefore an investi 1154 gation into the offence of criminal misconduct under section 52 of the Act and an investigation into the offence under sections 161 and 165 of the Indian Penal Code which have been made cognizable by section 3 of the Act would have to be made by an officer incharge of a police station and no order of any Magistrate in this behalf would be required
But the proviso to section 3 as well as sub section 4 of section 5 of the Act specifically provide that a police officer below the rank of a Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest there for without a warrant
It may be mentioned that this Act was amended by Act LIX of 1952
The above mentioned proviso to section 3 as well as sub section 4 of section 5 have been thereby omitted and substituted by section 5 A the relevant portion of which may be taken to be as follows Notwithstanding anything contained in the Code of Criminal Procedure no police officer below the rank of a Deputy Superintendent of Police elsewhere than in the presidency towns of Calcutta Madras and Bombay shall investigate any offence punishable under sections 161 165 or 165 A of the Indian Penal Code or under section 52 of this Act without the order of a Magistrate of the First Class
This amendment makes no difference
In any case the investigation in these cases having taken place prior to the amendment what is relevant is section 54 as it stood before the amendment
It may also be mentioned that in 1952 there was enacted the Criminal Law Amendment Act 1952 Act XLVI of 1952 which provided for the appointment of Special Judges to try offences under sections 161 165 and 165 A of the Indian Penal Code and under sub section 2 of section 5 of the Act such offences were made triable only by such Special Judges
Provision was also made that all pending cases relating to such offences shall be forwarded for trial to the Special Judge
That is how the present cases are all now before the Special Judge of Delhi appointed under this Act
On the arguments urged before us two points arise 1155 for consideration
1 Is the provision of the Prevention of Corruption Act 1947 enacting that the investigation into the offences specified therein shall not be  conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate directory or mandatory
2 Is the trial following upon an investigation in contravention of this provision illegal
To determine the first question it is necessary to consider carefully both the language and scope of the section and the policy underlying it
As has been pointed out by Lord Campbell in Liverpool Borough Bank vs Turner1 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 carefully attending to the whole scope of the statute to be construed
See Craies on Statute Law page 242 Fifth Edition
The Code of Criminal Procedure provides not merely for judicial enquiry into or trial of alleged offences but also for prior investigation thereof
Section 5 of the Code shows that all offences shall be investigated inquired into tried and otherwise dealt with in accordance with the Code except in so far as any special enactment may provide otherwise
For the purposes of investigation offences are divided into two categories cognizable  and non cognizable 
When information of the commission of a cognizable offence is received or such commission is suspected the appropriate police officer has the authority to enter on the investigation of the same unless it appears to him that there is no sufficient ground
But where the information relates to a non cognizable offence he shall not investigate it without the order of a competent Magistrate
Thus it may be seen that according to the scheme of the Code investigation is a normal preliminary to an accused being put up for trial for a cognizable offence except when the Magistrate takes cognizance other 1 148 1156 wise than on a police report in which case he has the power under section 202 of the Code to order investigation if he thinks fit
Therefore it is clear that when the Legislature made the offences in the Act cognizable prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Act
In order to ascertain the scope of and the reason for requiring such investigation to be conducted by an officer of high rank except when otherwise permitted by a Magistrate it is useful to consider what investigation under the Code comprises
Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under section 154 of the Code
If from information so received or otherwise the officer in charge of the police station has reason to suspect the commission of an offence he or some other subordinate officer deputed by him has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender
Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case
By definition it includes all the proceedings under the Code for the collection of evidence conducted by a police officer
For the above purposes the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case
He has also the authority to examine such person orally either by himself or by a duly authorised deputy
The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available in the trial that may follow for use in the manner provided in this behalf in section 162
Under section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation
The search has to be conducted by such officer in person
A subordinate officer may be deputed by him for the 1157 purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available
The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under section 54 of the Code
A police officer making an investigation is enjoined to enter his proceedings in a diary from day to day
Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned
It is important to notice that where the investigation is conducted not by the officer in charge of the police station but by a subordinate officer by virtue of one or other of the provisions enabling him to depute such subordinate officer for any of the steps in the investigation such subordinate officer is to report the result of the investigation to the officer in charge of the police station
If upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground he may decide to release the suspected accused if in custody on his executing a bond
If however it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial he is to take the necessary steps therefore under section 170 of the Code
In either case on the completion of the in vestigation he has to submit a report to the Magistrate under section 173 of the Code in the prescribed form furnishing various details
Thus under the Code investigation consists generally of the following steps1 Proceeding to the spot 2 Ascertainment of the facts and circumstances of the case 3 Discovery and arrest of the suspected offender 4 Collection of evidence relating to the commission of the offence which may consist of a the examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit b the search of places of seizure of things considered necessary for the investigation and to be produced at the trial and 5 Formation of the opi 1158 nion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173
The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station it having been clearly provided in section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station
It is also clear that the final step in the investigation viz the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station
There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under section 551
It is in the light of this scheme of the Code that the scope of a provision like section 54 of the Act has to be judged
When such a statutory provision enjoins that the investigation shall be made by a police officer of not less than a certain rank unless specifically empowered by a Magistrate in that behalf notwithstanding anything to the contrary in the Code of Criminal Procedure it is clearly implicit therein that the investigation in the absence of such permission should be conducted by the officer of the appropriate rank
This is not to say that every one of the steps in the investigation has to be done by him in person or that he cannot take the assistance of deputies to the extent permitted by the Code to an officer in charge of a police station conducting an investigation or that he is bound to go through each of these steps in every case
When the Legislature has enacted in emphatic terms such a provision it is clear that it had a definite policy behind it
To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to public 1159 servants as such are non cognizable
A cursory perusal of Schedule II of the Code of Criminal Procedure discloses that almost all the offences which may be alleged to have been committed by a public servant fall within two chapters Chapter IX Offences by or relating to public servants and Chapter XI Offences against public justice and that each one of them is non cognizable
Vide entries in Schedule II under sections 161 to 169 217 to 233 225 A as also 128 and 129
The underlying policy in making these offences by public servants non cognizable appears to be that public servants who have to discharge their functions often enough in difficult circumstancesshould not be exposed to the harassment of investigation against them on information levelled possibly by persons affected by their official acts unless a Magistrate is satisfied that an investigation is called for and on such satisfaction authorises the same
This is meant to ensure the diligent discharge of their official functions by public servants without fear or favour
When therefore the Legislature thought fit to remove the protection from the public servants in so far as it relates to the investigation of the offences of corruption comprised in the Act by making them cognizance it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank
Having regard therefore to the peremptory language of sub section 4 of section 5 of the Act as well as to the policy apparently underlying it is reasonably clear that the said provision must be taken to be mandatory
It has been suggested by the learned SolicitorGeneral in his arguments that the consideration as to the policy would indicate if at all only the necessity for the charge sheets in such a case having to be filed by the authorised officer after coming to his own conclusion as to whether or not there is a case to place the accused on trial before the Court on a perusal of the material previously collected and that at best this might extend also to the requirement of arrest of the 1160 concerned public servant by an officer of the appropriate rank
There is however no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which according to the scheme of the Act have to be conducted by the appropriate investigating officer either directly or when permissible through deputies but on his responsibility
It is to be borne in mind that the Act creates two new rules of evidence one under section 4 and the other under section 53 of an exceptional nature and contrary to the accepted canons of criminal jurisprudence
It may be of considerable importance to the accused that the evidence in this behalf is collected under the responsibility of the authorised and competent investigating officer or is at least such for which such officer is prepared to take responsibility
It is true that the result of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and the consequent greater responsibility and experience of a police officer has absolutely no relation to the nature and quality of evidence collected during investigation and to be subsequently given in Court
A number of decisions of the various High Courts have been cited before us bearing on the questions under consideration
We have also perused the recent unreported Full Bench judgment of the Punjab High Court1
These disclose a conflict of opinion
It is sufficient to notice one argument based on section 1562 of the Code on which reliance has been placed in some of these decisions in support of the view that section 54 of the Act is directory and not mandatory
Section 156 of the Code of Criminal Procedure is in the following terms 1561
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 May1954
1161 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
Any Magistrate empowered under section 190 may order such an investigation as above mentioned
The argument advanced is that section 54 and proviso to section 3 of the Act are in substance and in effect in the nature of an amendment of or proviso to section 1561 of the Code of Criminal Procedure
In this view it was suggested that section 1562 which cures the irregularity of an investigation by a person not empowered is attracted to section 54 and proviso to section 3 of the 1947 Act and section 5 A of the 1952 Act
With respect the learned Judges appear to have overlooked the phrase under this sec tion which is to be found in sub section 2 of section 156 of the Code of Criminal Procedure
What that sub section cures is investigation by an officer not empowered under that section ie with reference to sub sections 1 and 3 thereof
Sub section 1 of section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction
It is the violation of this provision that is cured under sub section 2
Obviously sub section 2 of section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised
But apart from the implication of the language of section 1562 it is not permissible to read the emphatic negative language of sub section 4 of section 5 of the Act or of the proviso to section 3 of the Act as being merely in the nature of an amendment of or a proviso to sub section 1 of section 156 of the Code of Criminal Procedure
Some of the learned Judges of the High Courts have called in aid sub section 2 of section 561 of the Code of Criminal Procedure by way of analogy
It 1162 is difficult to see how this analogy helps unless the said sub section is also to be assumed as directory and not mandatory which certainly is not obvious on the wording thereof We are therefore clear in our opinion that section 54 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 question then requires to be considered whether and to what extent the trial which follows such investigation is
vitiated
Now trial follows cognizance and cognizance is preceded by investigation
This is undoubtedly the basic scheme of the Code in respect of cognizable cases
But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon
Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial
It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises
A defect or illegality in investigation however serious has no direct bearing on the competence or the procedure relating to cognizance or trial
No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken
But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance
Section 190 of the Code of Criminal Procedure is one out of a group of sections under the beading Conditions requisite for initiation of proceedings
The language of this section is in marked contrast with that of the other sections of the group under the same heading ie sections 193 and 195 to 199
These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith
But section 190 does not
While no doubt in one sense clauses a b and c of section 1901 are conditions requisite for taking of cogni 1163 zance it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity
Such an invalid report may still fall either under clause a or b of section 1901 whether it is the one or the other we need not pause to consider and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial
To such a situation section 537 of the Code of Criminal Procedure which is in the following terms is attracted 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 has in fact occasioned a failure of justice
If therefore cognizance is in fact taken on a police report vitiated by the breach of a mandatory provision relating to investigation there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice
That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu vs Emperor1 and Lumbhardar Zutshi vs The King2
These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence
This distinction may have a bearing on the question of prejudice or miscarriage of justice but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court
We are therefore clearly also of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termi 1 AIR 1944 PC 73
149 2 AIR 1950 P C 26 1164 nation
 the invalidity of the precedent investigation does not vitiate the result unless miscarriage of justice has been caused thereby
It does not follow however that the invalidity of the investigation is to be completely ignored by the Court during trial
When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage the Court while not declining cognizance will have to take the necessary steps to get the illegality cured and the defect rectified by ordering such reinvestigation as the circumstances of an individual case may call for
Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police
Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case
When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby by appropriate orders at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice
It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error explanation to section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor
To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused
It is true that the peremptory pro 1165 vision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate
But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice
When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation
The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it
In our opinion therefore when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for wholly or partly and by such officer as it considers appropriate with reference to the requirements of section 5 A of the Act
It is in the light of the above considerations that the validity or otherwise of the objection as to the viola tion of section 54 of the Act has to be decided and the course to be adopted in these proceedings determined
The learned Special Judge before whom the objection as to the violation of section 54 of the Act was taken took evidence as to the actual course of the investigation in these cases
In the cases out of which Criminal Appeals Nos 96 and 97 of 1954 arise the first information report which in each case was filed on 29 6 1949 was in terms on the basis of a complaint filed by the Director of Administration and Co ordination Directorate of Industry and Supply
This disclosed information constituting offences including that under section 52 of the Act
The cases were hence registered under various sections including section 52 of the Act
The investigation that was called for on the basis of such a first information report was to be by an officer contemplated under section 54 of the Act
The charge sheets in these two cases were filed on 11 8 1951 by a Sub Inspector 1166 of Police R G Gulabani and it appears that he applied to the Magistrate for permission to investigate into these cases on 26 3 1951
His evidence shows that so far as the case relating to Criminal Appeal No 97 of 1954 is concerned he did not make any investigation at all excepting to put up the chargesheet
All the prior stages of the investigation were conducted by a number of other officers of the rank of Inspector of Police or Sub Inspector of Police and none of them had taken the requisite permission of the Magistrate
In the case out of which Criminal Appeal No 96 of 1954 arises the evidence of R G Gulabani shows that he took up the investigation after he obtained permission and partly investigated it thereafter but that the major part of the investigation was done by a number of other officers who were all below the rank of Deputy Superintendent of Police without having obtained from the Magistrate the requisite sanction therefor
Both these are cases of clear violation of the mandatory provisions of section 54 of the Act
In the view we have taken of the effect of such violation it becomes necessary for the Special Judge to reconsider the course to be adopted in these two cases
As regards the case out of which Criminal Appeal No 95 of 1954 arises it is to be noticed that the first information report which was filed on 30 4 1949 disclosed offences only against Messrs Patiala Oil Mills Dev Nagar Delhi and others and not as against any public servant
The case that was registered was accordingly in respect of offences punishable under section 420 of the Indian Penal Code and section 6 of the Essential Supplies Temporary Powers Act 1946 and not under any offence comprised within the Pre Vention of Corruption Act
The investigation proceeded therefore in the normal course
The evidence shows that the investigation in this case was started on 2 5 1949 by Inspector Harbans Singh and that on 11 7 1949 he handed over the investigation to Inspector Balbir Singh
Since then it was only Balbir Singh that made all the investigation and it appears from his evidence that he examined as many 1167 as 25 witnesses in the case
It appears further that in the course of this investigation it was found that the two appellants and another public servant were liable to be prosecuted under section 52 of the Act
Application was then made to the Magistrate by Balbir Singh for sanction being accorded to him under section 54 of the Act and the same was given on 20 3 1951
The charge sheet was filed by Balbir Singh on 15 11 1951
He admits that all the investi gation by him excepting the filing of charge sheet was prior to the obtaining the sanction of the Magistrate for investigation
But since the investigation prior to the sanction was with reference to a case registered under section 420 of the Indian Penal Code and section 6 of the Essential Supplies Temporary Powers Act 1946 that was perfectly valid
It is only when the material so collected disclosed the commission of an offence under section 52 of the Act by public servants that any question of taking the sanction of the Magistrate for the investigation arose
In such a situation the continuance of such portion of the investigation as remained as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate
We are therefore of the opinion that there has been no such defect in the investigation in this case as to call for interference
In the result therefore Criminal Appeal No 95 of 1954 is dismissed
Criminal Appeals Nos96 and 97 of 1954 are allowed with the direction that the Special Judge will take back the two cases out of which these appeals arose on to his file and pass appropriate orders after reconsideration in the light of this judgment
Criminal Appeal No 106 of 1954
This is an appeal by special leave against a common order of the High Court of Punjab relating to Cases Nos 19 to 25 of 1953 before the Special Judge Delhi
It raises the same questions which have been disposed of by our judgment in Criminal Appeals Nos 95 to 97 of 1954
Since the appeal is in form one 1168 against the order of the High Court refusing to grant stay of the proceedings then pending it is sufficient to dismiss this appeal with the observation that it will be open to the appellants to raise  the objections before the Special Judge


Summary:
Held that section 54 and proviso to section 3 of the Prevention of Corruption Act 1947 II of 1947 and the corresponding section 5 A of the Prevention of Corruption Second Amendment Act 1952 LIX of 1952 are mandatory and not directory and that an investigation conducted in violation thereof is illegal
If cognizance is in fact taken on a police report in breach of a mandatory provision relating to investigation the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice
It is well settled that an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby When any breach of the mandatory provisions relating to investigation is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for wholly or partly and by such officer as it considers appropriate with reference to the requirements of section 5 A of the Prevention of Corruption Second Amendment Act 1952
Liverpool Borough Bank vs Turner 1861   Prabhu vs Emperor AIR and Lumbhardar Zutshi vs The King AIR  referred to