minal Appeal No 141 of 1958
Appeal by special leave from the judgment and order dated November 28 1957 of the Madhya Pradesh High Court in Criminal Revision No 78 of 1957 arising out of the judgment and order dated August 21 1957 of the Court of Special Judge at Gwalior in File No 257 Special Case
G C Mathur and R H Dhebar for the appellant
The respondent did not appear
February 3
The Judgment of the Court was delivered by SUBBA RAO J
This is an appeal by special leave against the Judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special Judge Indore to order the Deputy Superintendent of Police to carry on the investigation afresh
The facts are simple
One Shri Mohinder Nath Bhalla was the manager of Daisy Sewing Machine Co Ltd Bhopal
On January 11 1955 between 12 and 1 p m he contacted the Sub Inspector of Police Special Police Establishment Gwalior and gave him the following information The company had opened their stall in the Gwalior Mela and he Shri Bhalla had to book empty wooden cases of machine and machine parts from Gwalior Mela to Now Delhi
When lie went to the station to enquire for booking the said cases the Station Master demanded annas ten for each case as illegal gratification but he did not agree to it
Subsequently the Assistant Station Master agreed to accept annas eight for each case and asked him to bring the wooden cases between 2 and 4 p m on the same day ie January 11 1955
On this allegation lie requested the police to take action  to stop the said sort of 204 corruption 
The police officer went along with the informant to his stall at Gwalior Mela and saw the twenty wooden cases twelve big and eight small ready for booking
The said Shri Bhalla gave the police officer a typed complaint signed by him and duly attested by two witnesses
With the assistance of the police officer a trap was laid
The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses
The said rupee notes were given to Shri Bhalla in the presence of the witnesses
Shri Bhalla was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could overhear the conversation and also see the Assistant Station Master taking the bribe
He was also told that on his giving a signal the police would come on the scene
The plan was carried out in detail as agreed
The Assistant Station Master after some bargaining took the bribe and after the act of bribery was completed Shri Bhalla gave the prearranged signal
The Sub Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of witnesses and asked him to produce the money taken by him as bribe
The Assistant Station Master when questioned by the Sub Inspector gave him his name and also produced the notes which he had kept in his pocket
The police officer took those notes and counted them
The numbers on those notes tallied with those noted in the memorandum
He then searched the person of the Assistant Station Master and secured the articles found on him
He also searched the person of Shri Bhalla and took from his shirt two currency notes which he did not give to the Assistant Station Master as the bargain was struck at a smaller amount and secured the same
The numbers of those notes also tallied with the corresponding numbers noted in the memorandum
Thereafter a memorandum of the articles recovered was prepared in the presence of the witnesses and was duly attested by them
The forwarding note together with the record copy of the 205 RR prepared in respect of the booking of the twenty wooden cases to New Delhi was taken possession of and another memorandum was prepared in regard to them
An inventory of the twenty wooden cases lying on the platform near the weighing machine as booked by the Assistant Station Master was also prepared and the same was attested by the witnesses
The Sub Inspector having regard to the aforesaid facts came to the conclusion that the facts disclosed offences punishable under sections 120 B and 161 of the Indian Penal Code and section 52 of the Prevention of Corruption Act 1947 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 he sent a report of the aforesaid facts to the Special Police Establishment Office Madhya Bharat
The office registered it on January 14 1955 in its register
Seven days thereafter on January 21 1955 the Sub Inspector filed an application before the Additional District Magistrate Judicial Gwalior asking for permission to investigate the offence under the aforesaid sections
The record does not disclose what further steps were taken by the Sub Inspector after he obtained the said permission from the Additional District Magistrate
On October 1 1955 a charge sheet was filed before the Special Judge Anti Corruption Indore
It appears from the record that soon after the case was taken up for trial the respondent filed objections questioning inter alia the validity of the order of the Additional District Magistrate giving permission to the Sub Inspector to make the investigation
But the scope of the objections is not clear as they have not been placed before us
It appears that the Special Judge intended to take evidence on the question of delegation of power of investigation but the prosecution applied for adjournment on the ground that an appeal had been filed in the High Court against a similar order directing the prosecution to give evidence on the said question and the same was pending there
The learned Special Judge though inclined not to give the adjournment made an order giving an adjournment 206 of three weeks on December 3 1955 on the ground that  the Special Police Establishment Office might not have any grievance on that account 
We do not know what transpired between December 3 1955 and the date of disposal of the objections by the Special Judge i e August 21 1957
On August 21 1957 the learned Special Judge made 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
By the said order the learned Judge presumably an officer different from the one who gave the adjournment in 1955 disallowed the objection of the accused on the ground that on the date when the Magistrate gave the sanction there were many papers in connection with a case against the accused on observing which the Magi strate could have satisfied himself whether there was a prima facie case or not against the accused and that there was no reason to believe that at the time of giving the sanction the Magistrate did not peruse the papers
The accused preferred a Revision against the said order to the High Court of Madhya Pradesh
The High Court came to the conclusion that the Sub Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for authorising the officer of a lower rank to conduct the investigation but had given the permission as a mere matter of routine
In the result the High Court set aside the order of the Special Judge with a direction that in order to rectify the defects and cure the illegality he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file 
The State preferred the present appeal against the said order of the High Court
Learned Counsel appearing for the State raised before us two points i the High Court was not justified in holding that the Magistrate gave the permission as a mere matter of routine without satisfying himself as to the advisability of giving such permission ii the High Court was wrong in holding 207 that the investigation started ten days prior to the obtaining of permission of the Magistrate by the Sub Inspector
To appreciate the first contention it is necessary to set out some of the relevant provisions 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 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  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 Act was passed as the preamble indicates to make more effective provisions for the prevention of bribery and corruption among public servants
It introduced a definition of the offence of criminal misconduct in discharging an official duty and new rules of presumption against accused in the case of the said offence
But in the year 1952 by Act 59 of 1952 presumably on the basis of the experience gained section 5A was inserted in the Act to protect the public servants against harassment and victimization
If it was in the interest of the public that corruption should be eradicated it was equally in the interest of the public that honest public servants should be able to 208 discharge their duties free from false frivolous and malicious accusations
To achieve this object sections 5A and 6 introduced the following two safeguards 1 no police officer below the rank a in the presidency towns of Madras and Calcutta of an assistant commissioner of police b in the presidency town of Bombay of a superintendent of police and c elsewhere of a deputy superintendent of police shall investigate any offence punishable under section 161 section 165 or section 165A of the Indian Penal Code or under sub section
2 of section 5 of the Act without the order of a presidency magistrate or a magistrate of the first class as the case may be or make any arrest therefor without a warrant see section 5A 2 no court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under section 52 of the Act alleged to have been committed by a public servant except with the previous sanction of the appropriate Government see section 6
These statutory safeguards must be strictly complied with for they were conceived in public interests and were provided as a against frivolous and vexatious prosecutions
While in the case of an officer of assured status and rank the legislature was prepared to believe them implicitly it prescribed an additional guarantee in the case of police officers below that rank namely the previous order of a presidency magistrate or a magistrate of the first class as the case may be
The magistrate s status gives assurance to the bonafide8 of the investigation
In such circumstances it is self evident that a magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at that stage
He must also be satisfied that there is sufficient reason owing to the exigencies of administrative convenience to entrust a subordinate officer with the investigation
This Court in H N Rishbud and Inder Singh vs The State of Delhi 1 emphasised the necessity to adhere strictly to the provisions of section 5A of the Act
Jagannadhadas J who delivered the judgment of the Court observed at p 1159 1  209  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 cognisable 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 subsection 4 of section 5 of the Act as well as to the policy apparently underlying it it is reasonably clear that the said provision must be taken to be mandatory 
After adverting to the argument advanced on behalf of the Statelearned Judge closed the discussion thus at p 1162 We are therefore clear in our opinion that section 54 and provisoto 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 inviolation thereof bears the stamp of illegality
This Court again considered the scope of section 6 of the Act in Biswabhusan Naik vs The State of Orissa 1
One of the questions raised there was that the sanction given by the Government was invalid
In rejecting that contention Bose J observed at p 95   The judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn Control Order 1943 but the principles apply here
It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering
The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged but an 11955 1 SCR 92 27 210 omission to do so is not fatal so long as the facts can be and are provided in some other way 
While the former decision emphasises the importance of the protection given by the Act to public servants against harassment the latter decision points out the desirability of giving all the necessary facts in an order giving sanction the same applies to an order of a Magistrate and also the necessity of proof aliunde of the said facts in case the facts are not disclosed in the sanction
Applying the said two principles we must hold that in a case where an officer other than the designated officer seeks to make an investigation he should get the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving the permission
For one reason or other if the said salutary practice is not adopted in a particular case it is the duty of the prosecution to establish if that fact is denied that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case
In the present case though objection was taken by the accused at the earliest stage in 1955 on the ground that the order giving permission was invalid no attempt was made by the prosecution though years have elapsed between the date of the petition and that of the order of the Sessions Judge to adduce any evidence to support the contention that the Magistrate gave the permission to the Sub Inspector only after satisfying himself on the advisability of doing so on the material placed before him
The only material that was placed before the Sessions Judge was the application filed by the Sub Inspector before the Magistrate seeking the said permission and the order made by him thereon
In that application the Sub Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under section 5 A of the Act
On that application the Magistrate passed the order  permission given 
Neither the application 211 nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission
Ex facie it appears to us just like it appeared to the High Court that the Magistrate did not realise the significance of his order giving permission but only mechanically issued the order on the basis of the application which did not disclose any reason presumably because he thought that what was required was only a formal compliance with the provisions of the section
A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate
But the learned Judge of the High Court rightly did not accede to that belated request
We therefore without any hesitation agree with the High Court that the provisions of section 5A of the Act have not been strictly complied with in this case
In this view no other question arises for consideration
But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that permission of the Magistrate was obtained ten days after the investigation was started was wrong it would be as well that we considered the argument briefly
Section 41 of the Code of Criminal Procedure defines  investigation as to include all the proceedings under that Code for the collection of evidence conducted by the police officer or other persons other than a Magistrate who is authorised by the Magistrate in this behalf
Chapter XIV of the Code prescribes the procedure for investigation
Investigation starts after the police officer receives information in regard to an offence
Under the Code  investigation consists generally of the following steps i proceeding to the spot ii ascertainment of the facts and circumstances of the case iii discovery and arrest of the suspected offender iv 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 212 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 v formation of the opinion 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 173See H N Rishbud and Inder Singh vs The State of Delhi 1
From the narration of facts given supra it would be seen that in the present case Shri Bhalla gave information to the Sub Inspector on January 11 1955 as regards the attempt by the Station Master as well as the Assistant Station Master to take bribe from him
Under section 5 of the Act attempt to obtain from any person for himself or for any other person any gratification is in itself an offence and therefore the information certainly related to an offence
Thereafter the Sub Inspector after assisting Shri Bhalla to trap the accused came on the scene questioned the accused searched his person and recovered the marked notes and other articles from him  he searched the person of the informant and recovered the other notes marked but not given to the accused  he took possession of the twenty wooden boxes intended to be booked and the forwarding note together with the record copy of the RR he got prepared relevant memoranda for the aforesaid recoveries and got them duly attested by witnesses and thereafter on the basis of his investigation he sent a report to the Special Police Establishment Office Indore
We do not know on the material placed before us what further things he did in the matter of investigation between the 14th and 21st when be obtained the permission of the District Magistrate
In the circumstances we must hold agreeing with the High Court that the investigation in this case was started by the Sub Inspector on the 11th ie ten days prior to his obtaining permission of the Magistrate
The appeal fails and is dismissed
Appeal dismissed
11955 1 SCR 1150


Summary:
The appellant s predecessor in interest respondent herein was the owner of two properties consisting of a built up property  and a vacant property  in the city of Calcutta
The built up property comprised of 41456 sq mtrs
of land of which 321 sq
was covered by a build ing with a dwelling unit therein and the said property was constructed long before the Urban Land Ceiling and Regula tion Act 1976 came into force
The second property com prised of 33965 sq
of vacant land
The Act came into force on February 17 1976 but under Section 2A of the Act the appointed day in relation to State of West Bengal was 28th January 1976
Thus between the appointed day and the date of enforcement of the Act there was a 20 days  gap
On 8th July 1978 the respondent entered into an agree ment with the appellant to sell the vacant property
Since both the properties were covered by the Urban agglomeration as specified in category A  in Scheduled 1 to the 1976 Act under which the ceiling limit prescribed was 500 sq
 the appellant and the respondent gave a notice of the pro posed sale under Section 26 of the Act to the competent authority
The competent authority held that the respondent was holding 25421 sq
of land in excess of the ceiling limit
The excess land was determined by totalling 41456 sq
of the built up property and 33965 sq mtrs
of vacant property to 75421 sq
 and substracting 502 therefrom 500 sqmtrs
resulting in 25421 sq mtrs
in excess of the ceiling limit
Accordingly the competent authority issued order vesting the excess land in the State
Against the decision of the competent authority the respond ent preferred an appeal before the Appellate Authority which was dismissed in default
In the meantime the appellant filed a suit against the respondent for specific performance of the agreement dated 8th July 1978 which was decreed and consequently a deed of conveyance was executed in favour of the appellant and the possession of the property was also given to her
Subsequently the appellant came to know of the dis missal of the respondent s appeal
Thereupon she filed a Review Petition before the Appellate Authority stating that she had become the owner of the vacant property and prayed for retrieval of the same from being treated as excess land in the hands of respondent which was dismissed
The appel lant filed a writ petition in the High Court and a Single Judge allowed the same
On appeal by State a Division Bench of the High Court reversed the judgment of the Single Judge
Against the decision of the Division Bench appeal was filed in this Court
Setting aside the judgment of the Division Bench of the High Court and allowing the appeal this Court HELD 1
The primary objective of the Urban Land Ceiling and Regulation Act 1976 is to fix a ceiling limit on the holding of vacant lands conditioned as they are on the appointed day and as held on the date of commencement of the Act
512 F 2
Under Section 3 of the Urban Land Ceiling and Regulation Act 1973 no person is entitled to bold any vacant land in excess of the ceiling limit
Ceiling limit of vacant land in case of every person like the predecessor in interest of the appellant is 500 sq
as set up under Section 4
508 E F 21 However as per Section 2g Vacant land  does not include land of three categories
The first category is land on which construction of a building is not permissible under building regulation in force in the area in which such land is situated
The second category is of land occu pied by any building in an area where there are building regulations which has 503 been constructed upon or is under construction on the appointed day with the approval of the appropriate authori ty and the land appurtenant tO such building
Thus if the building stood constructed on the land prior to January 28 1976 the land occupied under the building is not vacant land
It also covers the land on which any building was in the process of construction on January 28 1976 with the approval of the appropriate authority
Additionally the land appurtenant to these two kinds of buildings is also not vacant land
The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations which has been constructed before January 28 1976 or is in the process of construction on such date and the land appurtenant to these two kinds of buildings
510A D 22 The expression land appurtenant as defined in Section 2g when related to any building in an area where there are building regulations as well as in an area where there are no building regulations reveals that the addition al extent as permitted is based on the principle of conti guity
The expression applies to buildings constructed before the appointed day as well as to buildings con struction of which commenced before the appointed day and was in progress on that day
Therefore if the construction of a building with a dwelling unit therein had begun after the appointed day then it is all the same any other land to be reckoned for calculating the extent of vacant land held by a person
And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointed day then it is not any other land to be reckoned for calculating the extent of vacant land held by a person
512G H 513A B The built up property in question had been constructed prior to the commencement of the Act
Therefore it is outside the purview of vacant land
If that is excluded from being reckoned towards calculating the extent of vacant land held by the predecessor in interest of the appellant the vacant land in the vacant property cannot be declared excess for that is within the permissible limits
Even if no land is left as land appurtenant to the built up area then 9356 sq mtrs
the remainder plus 33965 sq
of the unbuilt property would total up to the figure less than 500 sq
 which is again within the permissible limit
Accordingly the entire proceedings towards declaring excess land in the hands of the appellant and her predecessor in title are quashed
513C E 504 State of UP  Or3
LJ Johnson  Ors  held inapplicable
Union of India etc
VB Chaudhary etc
  Maharao Sahib Shri Bhim Singhji etc
vs Union of India  Ors  referred to
Eastern Oxygen vs State AIR 1981 MP 17 Prabhakar Narhar Pawar vs State AIR 1984 Bom
122 State vs Radha Raman Aggarwal AIR 1987 All 272 cited
In the scheme of sub section 9 of Section 4 of the Act the visible contrast between vacant land and any other land held by a person on which there is a building with a dwelling unit therein is prominent
The said any other land is reckoned and brought at par with the vacant land for the purpose of calculating the final extent of vacant land
The expression vacant land in the first portion of the provision connotes land minus land under buildings constructed or in the process of construction before and on the appointed day and the expression vacant land in the latter portion of the provision connotes the sum total of vacant land of the first order and distinctly the other land on which is a building with a dwelling unit therein of which construction commenced after the appointed day and the land appurtenant thereto
Such an interpreta tion is required by the context as otherwise the concept of the appointed day and the gap period would be rendered otiose
The legislature cannot be accused to have indulged in trickery in giving something with one hand and taking it away with the other
Any other land in the sequence would thus mean any other built upon land except the one excluded from the expression vacant land on account of it being occupied by a building which stood constructed
or was in the process of construction on the appointed day
510F H 511A B 4
Section 5 is reflective of the scheme of the Act in as much as transfers of vacant land within the gap period are ignorable and likewise vacant land brought under construction of building by a person within the j gap period is also ignorable for the purposes of calculat ing the extent of vacant land so that the provision of law are not defeated by human ingenuity
512 BC 5
Though Sub section 11 of Section 4 is not happily worded yet when meaningfully construed in the context it means that a building which 505 gets excluded by virtue of the definition of vacant land gets clothed with the protective cloak for not being reck oned again as any other land over which there is a building with a dwelling unit therein
This provision means to convey that what is not vacant land under sub clauses ii and iii of clause q of Section 2 cannot go to add up as vacant land under sub section 9 of Section 4 by descrip tive overlapping
To wipe out the distinction of vacant land and any other land as demonstrated in sub section 9 of section 4 is to strangulate and destroy the spirit and life blood of the appointed day and the gap period
512 D F