iminal Appeals Nos
161 to 163 of 1970
Appeals by certificate from the
judgment and order dated May 23 1969 of the Assam and Nagaland High Court at Gauhati in Cr
Rev Nos 36 39 and 46 of 1968
82 0 D Mookherjee Avtar Singh G Das section P Nayar and R N Sachthey for the appellant
Nuruddin Ahmad and N N Keswani for the respondent
Harbans Singh for the respondents
V M Tarkunade A L Arora and D D Sharma for the respondent
The Judgment of the Court was delivered by ALAGIRISWAMI J
Two of the appellants Major Lala and Lt Col Khanna are Army officers and the appellant in the 3rd appeal Gupta is a businessman of Gauhati
All of them were put up for trial before the Special Judge appointed under the Criminal Law Amendment Act 1952
One charge which was common to all the three of them was that between June 1962 and January 1963 all of them agreed to commit or cause to be committed offences under section 52 of the Prevention of Corruption Act and of cheating punishable under section 420 of the Indian Penal Code and these offences having been committed in pursuance of a conspiracy were punishable under section 120B of the Indian Penal Code read with section 5 2 of the Prevention of Corruption Act and section 420 IPC Mr Gupta the businessman was charged under section 420 IPC as well as section 511 read with section 420 IPC
The two Army officers were also charged with offences under section 420 read with section 5 1 d of the Prevention of Corruption Act
The case was filed before the Special Judge on 28 6 1963 and the charge was framed on 13 2 65
After about 18 out of the 52 witnesses cited by the prosecution had been examined the three respondents filed petitions under section 561A read with section 439 of Code of Criminal Procedure before the High Court of Assam  Nagaland on 28 3 68 1 4 68 and 10 4 68 respectively for quashing the charges
A learned Single Judge allowed these petitions on 23 5 1969 and quashed the charges and the proceedings before the learned Special Judge
He did this on three grounds 1 that the officer who investigated the case was not competent to do so 2 that the offences that were being tried were noncognizable and the Special Judge could not have taken cognizance of them without sanction under section 196A of the Code of Criminal Procedure and 3 that in view of the enormous length of time between 2 2 63 the date on which the case was 821 registered and 1 4 68 upto which date some witness had been examined the last witness having been examined on 15 1 67 it entailed undue harassment to the accused persons and the proceedings have to be quashed to prevent further harassment abuse of the process of the court and vexation to the accused persons
These three appeals have therefore been filed by the Union of India by certificate granted by the High Court
We shall first of all deal with the question whether the officer who investigated into these cases was not properly authorized to do so
The officer was an Inspector of the Delhi Special Police Establishment
Under section 5A of the Prevention of Corruption
Act before it was amended in 1964 no officer below the rank of the Deputy Superintendent of Police could investigate into offences punishable under sections 161 165 and 165A of the Indian Penal Code or under section 5 of the Prevention of Corruption Act without the order of a Presidency Magistrate or a Magistrate of the First Class
In this case the Inspector concerned had obtained the order of the First Class Magistrate of Tezpur
The argument before the High Court which was accepted by the learned Judge was that as the offences of conspiracy were alleged to have been committed both at Tezpur as well as at Gauhati the investigation based on the order of the Tezpur Magistrate alone was not a proper one
In other words the argument was that unless the Inspector had been authorized to investigate not only by the First Class Magistrate of Tezpur but also by the First Class of Gauhati district he could not have done so
The learned Judge referred to and relied upon the decision in Chinnappa vs State of Mysore1
It was decided in that case that any First Class Magistrate appointed in a district can issue orders under section 5A of the Prevention of Corruption Act for investigation of a case
From this the learned Single Judge drew the conclusion that in respect of an offence said to have been committed at Gauhati as well as at Tezpur the order of the Tezpur Magistrate was not enough
He also relied upon the decision of the High Court of Assam and Nagaland in Chatterjee vs Delhi Special Police Establishment  2  
This decision has been upheld by this Court in Union of India vs B N Ananthapadmanabhiah3
But that was a case of a Delhi Magistrate sanctioning an investigation of offences committed in Assam and it was held that such an order was not valid
That decision is
no authority for the proposition that where an offence is committed in more than one place the order of every Magistrate within whose
jurisdiction the offence or part of the offence was committed was necessary in order to 1 A I R 2 I L R 1969 Assam  Nagaland 275
3 A I R 822 enable the investigation to be carried on
All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the ingredients of the offence took place
That criterion is amply satisfied in this case
On principle also such a contention seems to be devoid of any substance
The offence of conspiracy or for that matter any other offence might consist of a series of acts and incidents spread over the whole country
Very often one conspirator or one of the offenders might not have even met the other conspirator or offender
To accept this contention would be to hold that the Police should go to every Magistrate within whose jurisdiction some part of the conspiracy or one of the ingredients of the offence has taken place
We have no hesitation in rejecting it
He also seemed to have had some doubt as to whether the order of the Magistrate of Tezpur produced before him was a genuine one
To say the least the attitude of the learned Judge is most surprising
To put it in his own words  It does not appear that any order of a Magistrate form part of the record
But at the time of hearing such an order was placed before me on behalf of the Prosecution
The application on which the order is said to have been passed by the Magistrate appears to have been addressed to the Court of the Magistrate first class at Tezpur wherein it was stated that for preoccupation of the Deputy Superintendent of Police the investigation was sought to be made by an Inspector A Police
The petition is unnumbered undated
What appears curious is that although the application was made before a Magistrate of the first class the order passed is supported by a seal of the District Magistrate Darrang
The order of the Magistrate runs as follows  Paper and FIR seen
Shri H B D Baijal Inspector is permitted to investigate the case
 There is an illegible signature with date 4 2 63 and below the signature the official designation has not been stated
It appears that no order sheet of the Magistrate has been produced in this regard and in above circums tances it cannot be unequivocally said that this document wag obtained in due course of business in compliance with section 5A of the Prevention of Corruption Act
Even assuming that the order is free from doubt learned counsel appearing for the petitioners has urged before me that since the venue of the offences has been clearly stated in the charge the permission given by the Magistrate for investigation of the offences at Gauhati is not valid 8 23 If he had any doubts about the genuineness of the order of sanction it was his duty to have gone into the matter thoroughly and satisfied himself whether the order was genuine or not
It was his duty to have given a categorical finding regarding the matter
There should have been no room allowed for any doubt or suspicion of any underhand dealing and unfair conduct in a matter of this kind
It was even alleged on behalf of the respondents that an order was produced for the first time before the learned Judge and it was taken back by the prosecution
If that was so it proves a woeful lack of care on the part of the learned Judge
He should have retained the order on file and called for the necessary records and information in order to find out whether the order was a genuine one or not
We have before us the order of the Superintendent of the Special Police Establishment dated 2 2 63 entrusting the investigation to Inspector Baijal and directing him to obtain the necessary permission from a competent Magistrate for doing so
We have also been shown the papers relating to the prosecution papers given to the accused under section 173 of the Code of Criminal Procedure
Item 71 of those papers relates to the order of sanction dated 4 2 1963 given by the Magistrate of Tezpur authorizing the Inspector of the SPE to investigate
Thus there is no doubt at all that Inspecor Baijal had been authorized to investigate into this case
It only shows rather superficial way the learned Judge chose to deal with this matter
The next question is whether offences under section 161 165 and 165A of the Indian Penal Code and section 5 2 of the Prevention of Corruption Act are cognizable or non cognizable offences
This becomes important for the purpose of deciding whether a sanction under section 196A is necessary
The sanction necessary under section 6 of the Prevention of Corruption Act and section 197 of the Code of Criminal Procedure has been accorded by the Government of India
What was contended by the respondents before the High Court and was accepted by that Court was that these offences being non cognizable offences a sanction under section 196A2 is necessary and that prosecution without such sanction is bad
Cognizable offence is defined in section 41 f of the Code of Criminal Procedure as an offence for which a police officer within or without the presidency towns may in accordance with the second schedule or under any law for the time bring in force arrest without warrant
The argument which appealed to the learned Judge of the High Court was that as under section 5A of the Prevention of Corruption Act no officer below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offences punishable under section 161 165 or 165A IPC and section 5 of the Prevention of Corruption Act they were not offences for which any police officer can arrest without warrant and therefore 824 they are not cognizable offences
The same argument was repeated before this Court by Mr Tarkunde emphasising that a police officer means any police officer and as any police officer cannot under section 5A of the Prevention of Corruption Act arrest without warrant but only officers of and above the rank of Dy
Superintendent the offences mentioned in that section are noncognizable offences
If we pursue the same line of argument and look at the definition of non cognizable offence in section 41 n which defines non cognizable offence as an offence for which a police officer within or without a Presidency town may not arrest without warrant it might mean that as these are cases where i police officer of the rank of Dy
Superintendent and above can arrest without warrant these are not non cognizable offences either
How can there be a case which is neither cognizable nor cognizable  It was sought to be argued that these offences would be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non cognizable when they are investigated by officers below the rank of Deputy Superintendents
We fail to see how an offence would be cognizable in certain circumstances and non cognizable in certain other circumstances
The logical consequences of accepting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction under section 196A2 would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents of Police
One supposes the argument also implies that the fact that an officer below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of section 5A would not make any difference to this situation
We do not consider that this is a reasonable interpretation to place
Under Schedule It of the Code of Criminal Procedure offences under sections 161 to 165 of the Indian Penal Code are shown as cognizable offences
At the end of that Schedule offences punishable with death imprisonment for life or imprisonment for 7 years and upwards are also shown as cognizable offences
Under section 5 2 of the Prevention of Corruption Act the sentence may extend to seven years
Therefore an offence under section 5 of the Prevention of Corruption Act is according to the provision in Schedule II to the Code of Criminal Procedure a cognizable offence
Therefore the mere fact that under the Prevention of Corruption Act certain restrictions are placed as to the officers who are competent to investigate into offences mentioned in section 5A would not make those offences any the less cognizable offences
Tile words notwithstanding anything contained in the Code of Criminal Procedure found at the beginning of section 5A1 merely carve out a limited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who 82 5 are competent to investigate into offences mentioned in the section and to arrest without a warrant
It does not mean that the whole of the Code of Criminal Procedure
including Schedule II thereof is made inapplicable
Under section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions therein contained
Also all offences under any other law which would include the Prevention of Corruption Act shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time bring in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences
Section 5A of the Prevention of Corruption Act should be related to this provision in section 5 2 of the Code of Criminal Procedure which limits the application of the provisions of that Code to be subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences
The only change which section 5A of the Prevention of Corruption Act makes is with regard to officers competent to investigate and arrest without warrant in all other respects the Code of Criminal Proce dure applies and therefore there is no doubt that all offences mentioned in section 5A of the Prevention of Corruption Act are cognizable offences
The Assam High Court seems to have taken a line of its own in this matter
In G K Apte vs Union of India curiously enough the Bench of which the learned Judge who dealt with this case was a member took the view that though an offence under section 161 is a cognizable offence if investigations were made under section 156 of the Code of Criminal Procedure there would be no need for a sanction under section 196A of the Code of Criminal Procedure and there can be a conviction under section 161 of the Indian Penal Code but if the investigation is made under section 5A of the Prevention of Corruption Act it will be an investigation into a non cognizable offence and there should be a sanction under section 196A for the trial following such investigation
For this conclusion the decision of this Court in H N Rishbud  Inder Singh vs The State of Delhi 2 was relied upon
We can see nothing in that case to support this conclusion
Nor are we able to see how if the investigation into an offence of misconduct punishable under section 52 is done by a police officer of high rank the offence is cognizable and if investigated by ail officer of a lower rank it is non cognizable
That cannot be a proper criterion for deciding whether an offence is cognizable or non cognizable
Unless there are clear and compelling reasons 1 AIR 1980 Assam  nagaladd 43
2 A I R 5 L797Sup
C 173 826 to hold otherwise the division of offences given in the Code of Criminal Procedure as cognizable and non cognizable should be given effect to
When the same Code makes sanction under section 196A necessary for trial of non cognizable offences it clearly contemplates non cognizable offences as defined in the Code
There is no justification for relying upon extraneous considerations and far fetched reasoning in order to get over the effect of these provisions
We may now refer to certain decisions of various High Courts on this point
In Taj Khan vs The State it was held The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions which conditions were clearly provided for the purpose of safeguarding public servants from harassment at the hands of subordinate police officers under the proviso
to section 3 of the said Act cannot lead to the conclusion that such offence is non cognizable In Ram Rijhumal vs The State  2 it was held  The provisions of section 3 Prevention of Corruption Act can only have one meaning and the meaning is that an offence under section 165A of the Penal Code has to be deemed to be a cognizable offence for the purpose of the Code of Criminal Procedure
It is only because the Legislature enacted section 5 A of the Prevention of Corruption Act that so far as the Presidency town of Bombay was concerned no police officer below the rank of a Superintendent of Police could in the case of an offence under section 165 A of the Penal Code investigate it without the order of a Presidency Magistrate
There is nothing in the language of section 5 A which would suggest that an offence under section 165 A of the Penal Code is not to be treated as a cognizable offence In Gulabsingh vs State it was held that offence under section 161 IPC is a cognizable offence
Its nature is not Affected by either section 3 or section 5A of the Prevention of Corruption Act
The requirement that in a cognizable offence a police officer should be able to arrest without warrant is without any limita tion and section 5A cannot be split
up to mean that an offence can be cognizable in reference to one officer and not in reference to another 1 A I R 2 A I R 1958 Bombay 125
3 A
I R 1962 Bombay 263
8 2 7 The learned Judges specifically dissented from the decision in Union of India vs Mahesh Chandra
In Public Prosecutor vs Shaik Sheriff 2 it was held that these offences cannot be treated as non cognizable offences when investigated by an officer below the rank of Deputy Superintendent of Police simply on the ground that such investigation cannot be done without the order of a Presi dency Magistrate or a Magistrate of the First Class
In the same way offences under section 5 of the Act cannot be treated as non cognizable even when investigated by a low rank officer
Thus the provision in section 5A is of the nature of a special provision which applies to offences specified therein which are cognizable offences including those under section 5 under all circumstances
 They also referred to the decision in Union of India vs Mahesh Chandra supra to the effect that an offence under section 161 IPC and under sub
section 2 of section 5 Prevention of Corruption Act is cogni zable so far as officers of the rank of a Deputy Superintendent of Police and above are concerned but so far as the officers below the rank of Deputy Superintendent of Police are concerned the said offences are non cognizable in so far as they cannot investigate them without the permission of a Magistrate of  the First Class and held that  the learned Judges only intended to emphasise the provision in S5 A and chose to refer to it as a non cognizable aspect of the offences comprised in the Act and to describe that aspect also as non cognizable for the limited purpose of the provision in section 5 A Thus the preponderance of opinion of the various High Courts is in favour of the view we are taking
We are therefore clearly of opinion that the offences under sections 161 165 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non cognizable when investigated by an Inspector of Police
Nor can there be any question of those offences being cognizable if they are investigated under section 156 of the Cr
PC but not when investigated in accordance with the provisions of section 5A of the Prevention of Corruption Act
The question therefore of the need for a sanction under section 196A does not arise
Consequently the need to order re investigation or to begin the trial again after the sanction under section 196A is obtained and the consequent inordinate delay and harassment of the officers concerned reasons that weighed with the learned Single Judge for quashing the charges does not arise
It may incidentally be mentioned that the respondents took nearly three years before they moved the High 1 A 1
R 1957 Madhya Bharat 43
2 A 1
R 828 Court for quashing the charges and are thus to a considerable extent responsible for the delay
On behalf of Mr Gupta it was argued that he cannot be tried along with the two Army officers
Under section 6 of the Criminal Law Amendment Act 1952 the Special Judge may try any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under section 161 165 or 165A of the Indian Penal Code or sub section 2 of section 5 of the Prevention of Corruption Act and under sub section3 of section 7 of the same Act a special judge when trying any case may also try any offence other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial
Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence and under section 239 persons accused of the same offence committed in the course of the same transaction as well as persons accused of an offence and persons accused of abetment or of an attempt to commit such offence may be charged and tried together
In The State of Andhra Pradesh vs Kandimalla Subbaih  Anr1 this Court observed  No doubt the offence mentioned in charge No 1 is alleged to have been committed not by _just one person but by all the accused and the question is whether all these persons can be joint tried in respect of all these offences
To this kind of charge section 239 would apply
This section provides that the following persons may be charged and tried together namely  1 persons accused of the same offence committed in the course of the same transaction 2 persons accused of an offence and persons accused of abetment or an attempt to commit such an offence 3 persons accused of different offences committed in the course of the same transaction
Clearly therefore all the accused persons could be tried together in respect of all the offences now comprised in charge No 1
 In that case the first accused was a public servant and the other accused were private individuals to whom the first accused was alleged to have sold transport permit books intended to be issued 1 829 to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco
This Court also pointed out that sub section
3 of section 7 provides that when trying any case a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial and clearly therefore accused No 1 could be tried by the Special Judge for offences under section 120B read with sections 466 467 and 420 JPC and similarly the other accused who are said to have abetted these offences could also be tried by the Special Judge
 There is therefore no objection to Mr Gupta being tried along with the two Army officers
Though in the revision petitions filed before the High Court the question as to whether on the evidence produced before the Special Judge the offences with which the respondents had been charged could be said to have been prima facie established was raised the learned Single Judge has not dealt with that question apparently because it was not argued before him
We do not therefore propose to say anything about the merits of the case
It is not necessary to refer to the decision in Madan Lal vs state of Punjab1 and Bhanwar Singh vs Rajasthan2 which are relied upon on behalf of the appellants in the view that we have taken that all the offences with which the accused are charged are cognizable offences and therefore the question whether charges which require sanction under s 196A could be tried alongwith charges which did not require such sanction and the entire charges are vitiated for want of sanction as held by the learned Single Judge does not arise
The appeals are allowed and the order of the learned Single Judge is set aside
The Special Judge will now proceed to deal with the cases and dispose of them as expeditiously as possible as the matter has been pending for a long time
VPS Appeals allowed


Summary:
Two army officers and a businessman were put up for trial before the Special Judge under the Criminal Law Amendment Act 1952
They were all charged with offences of conspiracy under section 120B IP
C read with section 52 of the Prevention of Corruption Act and section 420 IPC The businessman was charged under s420 and sections 420 and 511 IPC
The two army officers were also charged with the offences under section 420 IPC read with section 51d of the Prevention of Corruption Act
After some witnesses were examined by the prosecution on a petition by the three accused the High Court quashed the charges and the proceedings on the grounds 1 that the officer who investigated the case was not competent to do so 2 that the offences were non cognizable and hence the Special Judge could not take cognizance of them without sanction under section 196A Cr
PC and 3 in view of the enormous length of time that elapsed between the date the registration of the case and the examination of the witnesses about 4 12 years to proceed further with the case would be an abuse of the process of Court causing harassment to the accused
Allowing the appeal to this Court HELD  1 a Under section 5A of the Prevention of Corruption Act before it was amended in 1964 no officer below the rank of Deputy Superintendent of Police could investigate into offences punishable under Ss 161 165 165A IPC or under section 5 of the Prevention of Corruption Act without the orders of a Presidency Magistrate or the Magistrate First Class
Where an offence is committed in more than one place the order of every Magistrate within whose jurisdiction the offence or part of the offence was committed was not necessary to enable the investigation to be carried on
All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the offence took place
In the present case the offence of conspiracy was alleged to have been committed both at Tejpur as well as at Gauhati and the Inspector concerned had obtained the order of the First Class Magistrate Tejpur
821H 822A C Chinnappa vs State of Mysore AIR  Chatterjea V Delhi Special Police Establishment ILR 1969 Assam and Nagaland 275 and Union of India vs B N Ananthapadmanabbiah A IR  referred to
b The High Court expressed doubt whether the order of the Magistrate of Tejpur was a genuine one
If he had any such doubt it was the duty of the Judge to have gone into the matter thoroughly and satisfied 819 himself whether the order was genuine or not and given a categorical finding on the matter
There should have been no room allowed for any doubt or suspicion of any underhand dealing or unfair conduct in a matter of this kind
823A C 2 Under Schedule 11 of the Criminal Procedure Code offences under Ss 161 to 165 IPC and offences punishable with imprisonment for life or imprisonment of 7 years and upwards are shown as cognizable offences
Under section 52 of the Prevention of Corruption Act the sentence may extend to 7 years
Therefore an offence under section 5 of the Prevention of Corruption Act is a cognizable offence
The words notwithstanding anything contained in the Code of Criminal Procedure in the section merely carve out a limited exemption from the provisions of Criminal Procedure Code in so far as they limit the class of persons who are competent to investigate and to arrest without a warrant
The mere fact that under the Act certain restrictions are placed as to the officers who are competent to investigate into the offences mentioned in section 5A would not make those offences any the less cognizable
Therefore the offences under section 161 165 and 165A of the IPC and section 5 Prevention of Corruption Act are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non cognizable when investigated by an Inspector of Police nor can there be any question of these offences being cognizable if investigated under section 156 Cr
PC but not when investigated under section 5A Prevention of Corruption Act
It is illogical to say that offences would be cognizable in certain circumstances and non cognizable in certain other circumstances
Therefore the reed for a sanction under section 196A Cr
PC does not arise
824A H 825A D 827 Union of India vs B N Ananthapadmanabhiah AIR  Union of India vs Mahesh Chandra AIR 1957 Madhya Bharat 3 and Public Prosecutor vs Sheikh Shariff AIR 1965 AP 372 referred to
Taj Khan vs The State AIR  Ram Bijhumal vs The State AIR 1958 Bombay 125 and Gulabsingh vs State AIR 1962 Bombay 263 approved
G K Apte vs Union of India AIR 1970 Assam  Nagaland 43 disapproved
3The need to order re investigation or to begin the trial again after the sanction under section 196A is obtained and the consequent inordinate delay and harassment of the officers concerned do not arise at all
Hence there is no question of quashing the charges on that ground
827G H 4 Under section 6 and 73 of the Criminal Law Amendment Act 1952 and Ss 235 and 239 Cr
PC the businessman private individual and the two army officers public servants could be tried together
829A C The State of Andhra Pradesh vs Kandimalla Subbaiah  Anr  followed