PETITIONER: A. C. SHARMA Vs. RESPONDENT: DELHI ADMINISTRATION DATE OF JUDGMENT05/02/1973 BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 913 1973 SCR (3) 477 1973 SCC (1) 726 CITATOR INFO : R 1992 SC 604 (121,134) ACT: Delhi Special Police Establishment Act 25 of 1946- Notification under s. 3 of Act, being notification No. 7/5/55-A.V.D. dated November 6, 1966, conferring jurisdiction on Delhi Special Police Establishment to investigate inter alia offences under 161, 165 165A Indian Penal Code and offences under the Prevention of Corruption Act 2 of 1947-Jurisdiction of the Anti-Corruption Department of Delhi Administration whether completely displaced-Schemes of Act 25 of 1946 and Act 2 of 1947-Persuasive value of administrative instructions in interpreting statute-Defect in investigation, effect of-Word 'elsewhere' in s. 5A (1) (d) of Act 2 of 1947, meaning of. HEADNOTE: The appellant was the dealing clerk in the labour office Delhi in April 1965. He was tried and convicted by the Special Judge Delhi under s. 5(2) of Prevention of Corruption Act and section 161 of the Indian Penal Code. His appeal to the High Court of Delhi was dismissed by the Single Judge. In appeal by special leave to this Court it was contended that the Delhi Special Police Establishment Act, 1946, as amended, prescribes special powers and procedure for investigation of offences of bribery and corruption and as the appellant was an employee of the Central Public Work Department offences against him could only be investigated by the Special Police Establishment. His prosecution based on investigation by the Deputy Superintendent of the Anti-corruption Department of the Delhi Administration was therefore, according to the appellant, illegal. This contention, raised for the first time in this Court, was allowed to be urged in view of the decision of this court in Ahuluwalia's case. HELD : (i) Statement of objects and reasons for introducing a Bill in the legislature is not admissible as an aid. to the construction of the statute as enacted; far less can it control the meaning of the actual words used in the Act. It can only be referred to for the limited purpose of ascertaining the circumstances which actuated the sponsor of the Bill to introduce it and the purpose for doing so. [484G-H] (ii) The preamble of a statute, which is often described as a key to the understanding of it, may legitimately be consulted to solve an ambiguity or to ascertain and fix the meaning of words in their context which otherwise bear more meanings than one. It may afford useful assistance as to what the statute intends to reach. But if the enactment is clear and unambiguous in itself then no premble can vary its meaning. While construing a statute one has also to bear in mind the presumption that the legislature does not intend to make any substantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and o bject of the statute. [485A-B] (iii) The scheme of the Delhi Special Police Establishment Act does not either expressly or by necessary implication divest the regular police authorities of their Jurisdiction, power and competence to investigate into offences under any other competent law. As general rule it would require clear and express language to effectively exclude as a matter, of law the power of investigation for the offences mentioned 47 8 in the notification dated November 6, 1956, under s. 3 of the Act, from the jurisdiction and competence of the regular police authorities conferred on them by the Cr.P.C. and other laws and to vest this power exclusively in the D.S.P.E. The D.S.P.E. Act seems to be only permissive or empowering, intended merely to enable the D.S.P.E. also to investigate into the offences specified as contemplated by section 3 without impairing any other law empowering police authorities to investigate offences. [486B-F] (iv) The plain meaning of sub-section (1) of s. 5A of the Prevention of Corruption Act 1947 appears to be that Inspectors of Police of D.S.P.E. in all places, Assistant Commissioners of Police in the Presidency towns of Calcutta and Madras, Superintendent of Police in the Presidency town of Bombay, and Deputy Superintendents of Police in all places other than Presidency towns of Calcutta, Madras and Bombay are authorised to investigate into the offences mentioned therein. The word 'elsewhere' in cl.(d) does not indicate that a Deputy Superintendent of Police in debarred from investigating offences mentioned in this clause even when so ordered by a Magistrate First Class in the areas in which D.S.P.E. is also empowered to function. The word 'elsewhere' in clause (d) appears to refer only to the three Presidency towns mentioned in clauses (b) and (c). This sub-section therefore does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular police force. It is merely concerned with the object of making provision for safeguarding against arbitrary use of power of investigation by officers below certain ranks so that public servants concerned are saved from frivolous harassment at the hands of disgruntled persons. it is also noteworthy that apart from the restrictions in s. 5A(1) the applicability of the provisions of the Cr.P.C. to the proceedings in relation to the offences mentioned in that subsections, is, subject to certain modifications contained in s. 7A, expressly recognised. [488D-G] (v) The schemes of the two enactments, namely, the D.S.P.E. Act, 1946 and Prevention of Corruption Act, 1947 suggest that they are intended to serve as supplementary provisions of law designed to function harmoniously in aid of each other and of the existing regular police investigating agencies for effectively achieving the object of successful investigation into the serious offences mentioned in s. 5A without unreason-ably exposing the public servant concerned to frivolous and vexatious proceedings. [488G-H; 489A] (vi) The above interpretation is supported by D.O. No. 21(8)63GD dated October 5, 1963 addressed by the Central Bureau of Investigation, Ministry of Home Affairs, Government of India, to the Inspectors General of Police. No doubt the letter contains only , administrative instructions but it clearly show the construction placed during all these years by the administrative officers concerned. If the view stated in this letter is not clearly against the language and scheme of the Act in question then, it is entitled to due consideration and has some persuasive value. Reference to the St-ate Police in the D.O. includes the police force of the Union Territory of Delhi. [489F-H; 490A] (vii) In the present case the investigation by the Deputy Superintendent of Police could not be considered to be in any way unauthorised or contrary to law. The function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. [490A-C] 479 (viii) it was not possible to find any infirmity in judgment of the High Court upholding the prosecution story and convicting the appellant and there was no cogent ground for reappraising the evidence. There was absolutely no extraordinary reason for departing from the normal rule of practice according to which this Court accepts the conclusions of facts arrived at by the High Court to be final. There. was no grave injustice as a result of any irregularity or other infirmity either in the trial or in the judgments of the trial court and the High Court. [491D- F] H. N. Bishabud & Inder Singh v. State of Delhi, [1955] 1 S.C.R. 1150, Munna Lal v. The State of U.P. Crl. A. Nos. 102-104 of 1961 d/April 17, 1963, State of Madhya Pradesh v. Mubarak Ali, A.I.R. 1959 S.C. 707, State of Andhra Pradesh v. M. Venugopal, [1964] 3 S. C. R. 743 and Khandu Sonu Dhobi v. State of Maharashtra, Crl. A. No. 105 of 1969 d/February 15, 1972, applied. R. J. Singh Ahuluwalia v. The State of Delhi, [1970] 3 S.C.R. 451, Abdul Halim v. State of West Bengal, A.I.R. 1961 Cal. 257, Om Prakash v. State, A.I.R. 1964 Punjab 407, Labh Shankar V. State of Saurashtra, A.I.R. 1955 Saurashtra 42 Kharati Lal v. State, 1965, D.L..T 362 and Kartar Singh v. State, Crl. A. No. 42 of 1971 decided on October 13, 1971, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 28 of
1973.
Appeal by special leave from the judgment and order dated
29th October 1969 of the Delhi High Court at New Delhi in
Cr. A. No. 1 of 1966.
Frank Anthony and K. B. Rohatgi, for the appellant. Gobind
Das and R. N. Sachthey, for the respondent.
F. S. Nariman, Additional Solicitor-General of India, and
B. D. Sharma, for the Attorney-General for India.
The Judgment of the Court was delivered by
DuA, J.-The appellant was the dealing clerk in the Labour Offic
e, Delhi, in April, 1965. He was convicted by the
Special Judge, Delhi under s. 5(2) of the Prevention of
Corruption Act and sentenced to one year’s rigorous
imprisonment and fine of Rs. 200/- with two, months further
rigorous imprisonment in case of default. He was also found
guilty and convicted of an offence under s. 161, I.P.C. and
sentenced to rigorous imprisonment for (one year. The two
substantive sentences were directed to be concurrent. His
appeal to the High Court of Delhi was dismissed by ,a
learned single Judge. He appeals to this Court by special
leave. His application for leave is dated December 20,
1969. In that application one of the grounds taken by him
questioned the legality of the investigation into the
offences against him by the Deputy Superintendent of the
Anti-Corruption Department of the Delhi Administration.
According to this ground the Delhi Special
480
Police Establishment Act as amended prescribes special
powers and procedure for investigation of offences of
bribery and corruption in the departments of the Central
Government and as the appellant was an employee of the
Central Public Works Department, offences against him could
only be investigated by the Special Police Establishment.
The investigation_having not been done by the D.S.P.E.,
according to the appellant, his trial is vitiated. In
support of this ground the appellant presented in this Court
an application dated January 13, 1970 seeking permission to
place on the record a letter dated February 10, 1966
purporting to have been written by the S.P. Anti-Corruption
Branch, Delhi and addressed to the appellant stating that
the anti-corruption branch of Delhi Administration was not
competent to make an enquiry into the allegations levelled
against c.P.W.D. employee being a Central Government
employee. This Court, while granting special leave, also
permitted the appellant to urge additional grounds.
We now turn to the, facts giving rise to this case. One
Bakht Ram, a labour supplier had to get about Rs. 3,500/-
from one Umrao Singh, a contractor, who was evading this
payment. Bakht Ram moved the Labour Officer for relief.
The Labour Officer stopped payment to the contractor to the
extent of the amount claimed by Bakht Ram but as the case
was not being dealt with as expeditiously as Bakht Ram
expected or desired, he approached the appellant who was the
dealing clerk for expeditious disposal of the case. The
appellant demanded Rs. 100/by way of bribe for using his
good offices. The matter was ultimately settled at Rs. 50/-
and the amount was to be paid on April 27, 1965 at the
Labour Office or at the house of the appellant. Bakht Ram
thereupon reported the matter to the Deputy Superintendent
of Police (Anti-Corruption Branch) and produced three
currency notes of the denomination of Rs. 10/- each which he
proposed to pay to the appellant. The numbers of these
currency notes were noted by the Deputy Superintendent of
Police in the presence of two witnesses and Bakht Ram was
instructed to make the payment in the presence of those
witnesses. Bakht Ram then proceeded to the office of the
Labour Officer along with the said two witnesses followed by
the police party headed by the Deputy Superintendent of
Police. As the appellant was not present in the office of
the Labour Officer the party proceeded to his house. Bakht
Ram called the appellant out from his house and they both
went to a tea shop nearby. The two witnesses followed them.
Within their hearing Bakht Ram told the appellant that he
had brought Rs. 30/- with him and that he would pay the
balance later. He requested the appellant to see that the
Labour Officer passed requisite orders on Bakht Rams
application claiming Rs. 3,500/-. The appellant agreed to
see that the Labour Officer
481
passed the necessary orders. He received Rs. 30/- from
Bakht Ram and put the currency notes in his pocket. One of
the two witnesses at this stage gave a signal and the D.S.P.
came to the spot. The currency notes in question were
recovered from the appellant’s possession. They bore the
same numbers as had been noted by the D.S.P.
At the trial the appellant’s plea was that Bakht Ram had
borrowed from him Rs. 40/- on April 1, 1965 and the amount
recovered from him by the D.S.P. was the amount paid by
Bakht Ram towards the discharge of that loan. He also
produced four witnesses in support of his version. The
learned Special Judge considered the prosecution evidence
and held that the receipt of money having been admitted by
the appellant, the onus lay on him to rebut the presumption
raised by s. 4 of the Prevention of Corruption Act. After
considering the appellant’s plea and appraising the evidence
produced by him in support thereof, the learned Special
Judge concluded that the burden had not been discharged. In
his view, the defence witnesses were interested in the
appellant and one of them, being the General Secretary of
the Congress Mandal, Lajpatnagar, New Delhi and in that
capacity wielding some infouence, had also tried to help the
appellant. The testimony of these witnesses did not impress
the Special Judge. Holding the appellant guilty he
convicted him and imposed the sentence, as already noticed.
On appeal the High Court agreed with the view, taken by the
trial court. According to the High Court also the appellant
having admitted receipt of a sum of Rs. 30/- from P.W. 1
Bakht Ram on the date of the offence, under s. 4 of the
Prevention of Corruption Act, the burden lay upon him to
prove that this amount had been received otherwise than by
way of illegal gratification. The testimony of the defence
witnesses was not considered acceptable and the order of the
trial court was affirmed.
In this Court Mr. Anthony questioned the legality of the in-
vestigation by submitting that the only police agency having
jurisdiction to investigate into the allegations against
the, appellant was the Delhi Special Police Establishment.
The investigation by the anti-corruption branch, Delhi,
being thus without jurisdiction, it was contended that
the appellant’s trial and conviction were, on this
ground alone, wholly illegal. Mr. Anthony relied on R. J.
Singh Ahuluwalia v. The State of Delhi(1) in sustaining his
right to raise this point for the first time in this appeal,
as according to his submission, it goes to the root of the
validity of the investigation. If the investigation is
unauthorised the trial springing from it cannot be
considered lawful, said the counsel. The appel-
(1) (1970) 3 S.C.R. 451.
482
lant having been permitted to urge additional ground and
there being no objection by the other side, in the interest
of justice we heard the parties on the new objection. As
the point raised related to the validity of central laws we
directed notice to the Attorney General and pursuant to that
notice heard Mr. Nariman, Additional
The short but important question with far-reaching effect,
if the appellant’s contention were to prevail, requiring our
decision is, whether with the setting up of the Delhi
Special Police Establishment, the anti-corruption branch of
the Delhi Police had been completely deprived of its power
to investigate into the offences like the present or whether
both the S.P.E. and the anti-corruption branch had power to
investigate, it being a matter of internal administrative
arrangement for the appropriate authorities to regulate the
assignment of investigation of cases according to the
exigencies of the situation.
Mr. Anthony relied on the preamble of the Delhi Special
Police Establishment Act, 25 of 1946. Mr. Nariman produced
before us a copy of its objects and reasons for showing the
background in which this Act was enacted. Both sides
referred to the background of this enactment for the purpose
of supporting their rival contentions about its scope and
effect. The objects and reasons for its enactment show that
in 1943 the Government of India had set up ,a police staff
called the Delhi Police Establishment (War Department) under
the Special Police Establishment (War Department) Ordinance
No. XXII of 1943 for the purpose of investigating offences
of bribery and corruption connected with the Departments of
Central Government. As this Organisation proved useful it
was decided to retain its police staff on permanent basis by
means of legislation. Ordinance No. XXII of 1943 lapsed on
September 30, 1946. In order to avoid a break in
continuity, Ordinance No. XXII of 1946 was promulgated on
September 25, 1946 to remain in force till March 25, 1947.
The object of this Act is to retain the said special police
staff as a permanent Organisation to enable it to conduct
investigation in all provinces of India with their consent.
Its preamble reads :
“An Act to make provision for the constitution
of a special police force in Delhi for the
investigation of certain offences in the Union
territories for the superintendence and
administration of the said force and for the
extension to other areas of the powers and
jurisdiction of members of the said force in
regard to the investigation of the said
offences.”
Section 3 of the Act on which principal reliance was placed
by Mr. Anthony reads:
483
“3. Offences to be investigated by special
police establishment : The Central Government
may, by notification in the Official Gazette,
specify the offences or classes of offences
which are to be investigated by the Delhi
Special Police Establishment.”
Reference to S. 3 of both the Ordinances of 1943 and 1946
would show that apart from the category of offences, the
power of the establishment to investigate into the offences
mentioned therein is expressed in language similar to that
used in the two Acts Section 3 of the 1943
Ordinance reads :
“3. Offences to be investigated by Special
Police Establishment : The Central Government
may by general or special order specify the
offences or classes of offences committed in
connection with Departments of the Central
Government which are to be investigated by the
Special Police Establishment (War Department)
or may direct any particular offence committed
in connection with a Department of the Central
Government to be so investigated.”
Section 3 of ;the 1946 Ordinance reads
“3. Offences to be investigated by special
police establishment :
The Central Government may, by notification in
the official gazette, specify the offences or
classes of offences committed in connection
with matters concerning Departments of the
Central Government which are to be
investigated by the Delhi special police
establishment.”
It was contended that section 3 of this Act confers on
D.S.P.E. exclusive jurisdiction for investigating the
offences specified by the Central Government by notification
in the Gazette. Stress in this connection was laid on the
words “which are to be investigated” as disclosing the
mandatory character of the legislative intention. Our
attention was also drawn to the notification no. 7/5/55-AVD
dated November 6, 1956 in exercise of the powers conferred
by s. 3 in which offences, inter alia, under S. 161, 165,
165A, I.P.C. and offences punishable under the Prevention of
Corruption Act (2 of 1947) are specified. According to the
learned Advocate the Special Establishment is a very
efficient investigating agency and it utilises officers and
not clerks for assistance in its investigation. It is
apparently for this reason, said the learned counsel, that
cases of corruption against employees of Central Government
are entrusted to it. Mr. Anthony in the course of arguments
conceded that if in S. 3 instead of the word “are” the
legislature had used the words
484
“may” or “can” then the section would not prima facie convey
a mandatory direction clothing the D.S.P.E. alone with the
power of investigation to the exclusion of the other
investigating agencies, including the regular police force.
Our attention was also drawn to the resolution of the
Government of India (No. 4/31/61-T dated April 1, 1963),
reproduced at p. 681 of the Anti-Corruption Laws of India by
P. V. Ramakrishna, by means of which it was decided to, set
up a Central Bureau of Investigation at Delhi with six
divisions one of which was described as ‘investigation and
anti-corruption divisions (Delhi Special Police
Establishment)’. According to the argument the Government
had designed to set up a special investigating agency for
investigating cases of corruption and bribery to the
exclusion of an other investigating agencies. Our attention
was specifically invited to the letter (No. 593/AC Br. dated
February 10, 1966) from the Superintendent of Police, Anti-
Corruption Branch, to the appellant in reply to an
application of his. In that letter it was stated :
“Shri L. Swarup, Labour Officer, Jurisdiction
No. 5, C.P.W.D. Delhi is a Central Government
employee. Therefore, Anti-Corruption Branch
of Delhi Administration is not competent to
make enquiry into the allegations levelled
against him.”
This letter fortifies his submission, said Mr. Anthony.
Support for his contention was also sought from Abdul Halim
vs. State of West Bengal(1), Om Prakash vs. State(2), Labh
Shankar vs. State of Saurashtra (3 ) and Kharaiti Lal vs.
State(4). These decisions do not seem to have any direct
bearing on the point which concerns us.
Mr. Anthony also produced before us a copy of an unreported
decision of a single Judge of the Delhi High Court in Kartar
Singh vs. State(5) rejecting a similar contention raised by
the learned counsel. But the correctness of this decision
was questioned by Mr. Anthony. We now proceed to examine
the legal position.
Statement of objects and reasons for introducing a Bill in
the Legislature is not admissible as an aid to the
construction of the statute as enacted : far less can it
control the meaning of the actual words used in the Act. It
can only be referred to for the limited purpose of
ascertaining the circumstances which actuated the sponsor of
the Bill to introduce it and the purpose for doing so. The
preamble of a statute which is often described as a key to
the understanding of it may legitimately be consulted to
solve
(1) A.I.R. 1961 Cal. 257.
(3) A.I.R. 1965 Saurashtra 42.
(2) A.I.R. 1964 Punjab 407.
(4) 1965 D.L.T. 362.
(5) Crl. A. No. 42 of 1971 decided on October 13, 1971.
485
an ambiguity or to ascertain and fix the meaning of words in
their context which otherwise bear more meanings than one.
It may afford useful assistance as to what the statute
intends to reach, but if the enactment, is clear and
unambiguous in itself then no preamble can vary its meaning.
While construing a statute one has also to bear in mind the
presumption that the Legislature does not intend to make any
substantial alteration in the existing law beyond what it
expressly declares or beyond the immediate scope and object
of the statute.
Turning to the D.S.P.E. Act it extends to the, whole of.
India. For the constitution and powers of the establishment
we have to turn to s. 2 of this Act which reads :-
“2. Constitution and powers of special police
establishment :
(1) Notwithstanding anything in the Police
Act, 1861, the Central Government may
constitute a special police force to be
called the Delhi Special Police Establishment
for the investigation in any Union territory
of offences notified under section 3.
(2) Subject to any orders which the Central
Government may make in this behalf, members of
the said police establishment shall have
throughout any Union territory in relation to
the investigation of such offences and arrest
of persons concerned in such offences, all the
powers, duties, privileges and liabilities
which police officers of that Union territory
have in connection with the investigation of
offences committed therein.
(3) Any member of the said police
establishment of or above the rank of Sub-
Inspector may, subject to any orders which the
Central Government may make in this behalf,
exercise in any Union territory any of the
powers of the officer in charge of a police
station in the area in which he is for the
time being and when so exercising such powers
shall, subject to any such orders as
aforesaid, be deemed to be an officer in
charge of a police station discharging the
functions of such an officer within the limits
of his station.”
Section 3 which empowers the Central Government to specify
the offences to be investigated by the D.S.P.E. has already
been set out. The notification dated November 6, 1956
referred to earlier specifies numerous offences under
various enactments including a large number of ordinary
offences under I.P.C. Clauses (a) to (J) of this
notification take within their fold offences under a number
of statutes specified therein. Clause (k) extends the sweep
of this notification by including in its scope attempts,
486
abetments and conspiracies in relation to or in connection
with the offences mentioned in cll. (a) to (h) and also any
other offence committed in the course of those, transactions
arising out of the same facts. It may also be stated that
after 1956 in a number of further notifications the list of
the offences specified under s. “I has increased manifold.
We consider it unnecessary to refer to them in detail.
According to s. 4 the superintendence of D.S.P.E. vests in
the Central Government and s. 5 empowers the Central
Government to extend to any area in a State not being a
Union territory the powers and jurisdiction of members of
this establishment for the investigation of any offences or
classes of offences specified under s. 3. Subject to the
orders of the Central Government the members of such
Establishment exercising such extended powers and
jurisdiction are to be deemed to be members of the police
force of that area for the purpose of powers, functions,
privileges and liabilities. But the power and jurisdiction
of a member of D.S.P.E. in such State is to be exercised
only with the consent :of the Government of the State
concerned. The scheme of this Act does not either expressly
or by necessary implication divest the regular police
authorities of their jurisdiction, power and competence to
investigate into offences under any other competent law. As
a general, rule, it would require clear and express language
to effectively exclude as a matter of law the power of
investigation of all the offences mentioned in this
notification from the jurisdiction and competence of the
regular police authorities conferred on them by Cr. P.C.
and other laws and to vest this power exclusively in the
D.S.P.E. The D.S.P.E. Act seems to be only permissive or em-
powering, intended merely to enable the D.S.P.E. also to
investigate into the offences specified as contemplated by
s. 3 without impairing any other law empowering the regular
police authorities to investigate offences.
Turning now to the Prevention of Corruption Act (2 of 1947),
we find that this Act was enacted in March, 1947 several
months after the enactment of the D.S.P.E. Act for the more
effective prevention of brivery and corruption. By virtue
of s. 3 of the Act an offence under s. 165A, I.P.C. was made
a cognizable offence for the purposes of Cr. P.C.
notwithstanding anything to the contrary contained in that
Code. Section 4 provides for presumptions in certain cases.
Section 5 defines criminal misconduct and also provides for
punishment for such offences. It further provides for
punishment for habitual commission of offences under ss.
162, 163 and 165, I.P.C. and also renderers punishable
attempts to commit some offences. Section 5 is expressly
stated to operate in addition to, and not in derogation of
other laws. Section 5A which is of importance may here be
set out :
“5A. Investigation into cases under this Act
487
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1898, no
police officer below the rank,-
(a) in the case of the Delhi Special Police
Establishment, of an Inspector of Police;
(b) in the presidency-towns of Calcutta and
Madras, of an Assistant Commissioner of
Police;
(c) in the presidency-town of Bombay, of a
Superintendent of Police; and
(d) 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
section 5 of this Act without the order of a
Presidency Magistrate or a Magistrate of the
first class, as the case may be, or make any
arrest therefore without a warrant :
Provided that if a police officer not below
the rank of an Inspector of Police is
authorised by the: State Government in this
behalf by general or special order, he may
also investigate any such offence: without the
order of a Presidency Magistrate or a
Magistrate of the first class, as the case may
be, or make arrest therefore without a warrant
Provided further that an offence referred to
in clause (e) of sub-section (1) of section 5
shall not be investigated without the, order
of a police officer not below the rank of a
Superintendent of Police.
(2) If, from information received or
otherwise, a police officer has reason to,
suspect the commission of an offence which he
is empowered to investigate, under subsection
(1) and considers that for the purpose of
investigation or inquiry into such offence, it
is necessary to inspect any bankers’ books,
then, notwithstanding anything contained in
any law for the time being in force, he may
inspect any bankers’ books in so far as they
relate to the accounts of the person suspected
to have committed that offence or of any other
person suspected to be holding money on behalf
of such person, and take or cause to be taken
certified copies of the relevant entries
therefrom and the bank concerned shall be
bound to assist the police officer in the
exercise of his powers under this sub-section
:
Provided that no power under this sub-section
in relation to the accounts of any person
shall be exercised
488
by a police officer below the rank of a
Superintendent of Police, unless he is
specially authorised in this behalf by a
police officer of or above the rank of a
Superintendent of Police.
Explanation.-In this sub-section, the
expressions ‘bank and ‘bankers’ books’ shall
have the meanings assigned to them in the
Bankers’ Books Evidence Act, 1891.”
Sub-section (1) of this section, while regulating the
competence of the officers both of D.S.P.E. and of the
regular police force to investigate offences to the extent
considered necessary, over-rides the provisions of Cr. P.C.
It expressly prohibits police officers, including those of
the D.S.P.E., below certain ranks, from investigating into
offences, under ss. 161, 165 and 165A, I.P.C. and under s. 5
of Prevention of Corruption Act, without orders of
Magistrates specified therein and from effecting arrests for
those offences without a warrant. The plain meaning of this
sub-section appears to be that Inspectors of Police, of
D.S.P.E. In all places, Assistant Commissioners of Police in
the Presidency Towns of Calcutta and Madras, Superintendents
of Police in the Presidency Town of Bombay, and Deputy
Superintendents of Police in all places, other than
Presidency Towns of Calcutta, Madras and Bombay, are
authorised to investigate into the offences mentioned
therein. The word “elsewhere” in cl. (d) does not indicate,
as was contended by Mr. Anthony that a Deputy Superintendent
of Police is debarred from investigating offences mentioned
in this clause even when so ordered by a Magistrate of the
First Class in the areas in which D.S.P.E. is also empowered
to function. The word “elsewhere” in cl. (d) appears to us
to refer only to the three Presidency towns mentioned in
cll. (b) and (c). This sub-section, therefore, does not
confer sole power on D.S.P.E. to investigate into the
offences mentioned therein to the complete exclusion of the
regular police force. It is merely concerned with the
object of making provision for safeguarding against
arbitrary use of Dower of investigation by officers below
certain ranks, so that public servants concerned are saved
from frivolous harassment at the hands of disgruntled per-
sons. In this connection it is also noteworthy that apart
from the restriction contained in s. 5A(1) the applicability
of the provisions of Cr. P.C. to the proceedings in
relation to the aforesaid offences is, subject to certain
modifications contained in s. 7A, expressly recognised. The
schemes of the two enactments, namely, the D. S.P.E. Act.
1946 and the Prevention of Corruption Act, 1947. suggest
that they are intended to serve as supplementary provisions
of law designed to function harmoniously in and of each
other and of the exciting regular police investigating
agencies for effectively achieving the object of successful
investigation into the
489
serious offences mentioned in s. 5A without unreasonably
exposing the public servant concerned to frivolous and
vexatious proceedings. Mr. Nariman also, drew our attention
to D.O. No. 21/8/63GD dated October 5, 1963, addressed by
the Central Bureau of Investigation, Ministry of Home
Affairs, Government of India to the Inspectors General of
Police inviting their attention to the Government of India
Resolution No. 4/31/61-T dated April 1, 1963 establishing
the Central Bureau of Investigation consisting of six
Divisions to assist the State Police Forces. The authority
of Central Bureau is stated therein to have been derived
from the D.S.P.E. Act. In this letter para 6 reads :
“6. In this connection it may also be
mentioned that, on account of inadequacy of
staff, it is not possible for the S.P.E.
Division to take up every one of the cases
which might fall under the categories
mentioned in the Annexure to the Government of
India Resolution and which might be considered
suitable for investigation by the S.P.E.
Division. A certain discretion has,
therefore, to be exercised in taking up cases
for investigation. In some instances it may
not be possible for it to take up even those
cases which are committed by Central
Government servants, e.g., petty cases of
theft, misappropriation, cheating. Such cases
could be dealt with more easily and more
expeditiously by the local police which has
concurrent jurisdiction over these cases
also.”
In para 7 it is stated that for successful investigation of
cases it is most essential that a quick decision is taken
about the Agency which has to investigate them. One of the
Agencies mentioned therein is S.P.E. Division of the C.B.I.
In para 8 it is stated that in respect of cases involving
Public Servants or Public Concerns there is an
administrative arrangement and understanding between the
S.P.E. and the State Police about the manner in which they
are to be dealt with so as to avoid difficulties and delays.
This para then refers to the existing procedure and practice
which, it is suggested, should continue to be valid in
future. No doubt, this letter contains only administrative
instructions but it clearly shows the construction placed
during all these years by the administrative officers
concerned with administering this law on the provisions of
the S.P.E. and the Prevention of Corruption Act. If the
views stated in this letter is not clearly against the
language and scheme of these Acts then it is entitled to due
consideration and has some Persuasive value.. The contention
raised by Mr. Anthony that Delhi not being a State but only
a Union territory, the directions contained in D.O. No.
21/8/63-GD are, inapplicable and that in Delhi it is only
the D.S.P.E. which has exclusive authority to investigate
into the offences mentioned in s. 5A is not easy to accept.
490
Reference to the State Police force in that D.O. in our view
includes the police force of the Union territory of Delhi.
As the foregoing discussion shows the investigation in the
present case by the Deputy Superintendent of Police cannot
be considered to be in any way unauthorised or contrary to
law. In this connection it may not be out of place also to
point out that the function of investigation is merely to
collect evidence and any irregularity or even illegality in
the course of collection of evidence, can scarcely be
considered by itself to affect the legality of the trial by
an otherwise competent court of the offence so investigated.
In H. N. Rishabud & Inder Singh v. State of Delhi(1) it
was held that an illegality committed in the course of
investigation does not affect the competence and
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 consider appropriate with reference to
the requirements of s. 5A of the Prevention of Corruption
Act, 1952. This decision was followed in Munna Lal v. The
State of U.P. (2) where the decision in State of Madhya
Pradesh v. Mubarak Ali(3) was distinguished. The same view
was, taken in the Slate of Andhra Pradesh v. M. Venugopal
(4) and more recently in Khandu Sonu Dhobi v. State of
Maharashtra(5). The decisions of the Calcutta, Punjab and
Saurashtra High Courts relied upon by Mr. Anthony deal with
different points : in any event to the extent they contain
any observations against the view expressed by this Court in
the decision just cited those observations cannot be
considered good law.
This takes us to the merits of the case. Mr. Anthony
referred us to the evidence of Bakht Ram, the complainant
(P.W. 1) and submitted that this witness has told lies in
the witness box. P.W. 4 D.C. Srivastava who was also a
party to the trap and appeared as a. witness to the
acceptance of the bribe was also subjected to criticism by
the learned counsel. According to this criticism his
evidence is equally untrustworthy. It was emphasised that
the prosecution witnesses were tied down by the
Investigating Agency by taking their statements under S.
164, Cr. P.C. The learned counsel submitted that resort to
s. 164, Cr. P.C. must put the court on guard against
implicit reliance on such evidence because resort
(1) [1955] 1 S.C.R to (2) Crl. A. Nos. 102-104 of 1961
d/April 17,1963.
(3) A I. R 1959 S.C. 707 (4) [1964] 3 S.C.R. 742.
(5) Crl. A. No. 105 of 1969 d/February 15, 1972.
491
this section suggests that the witnesses are being compelled
to back to the statement secured from them during
investigation. The counsel further drew our attention to
the defence version which, According to him, was put forth
at the earliest opportunity. This version, according to
him, should have been accepted. The story of demand of
bribe by the appellant, argued Mr. Anthony, was not
trustworthy. Finally, it was pointed out that Wazir Chand
who was stated to be present when the appellant is alleged
to have demanded the bribe should have been produced by the
prosecution and failure to do so has seriously prejudiced
the appellant’s case. The plea that he had been won over
and was. therefore, not produced, did not justify his non-
production. The counsel also drew our attention to the
evidence of the three witnesses produced in defence.
In the High Court all these contentions were raised and
after a detailed consideration repelled for reasons which we
think are sound. The appellant had in the present case, as
observed by the High Court, admitted receipt of Rs. 30 from
P.W. 1 on the date of the offence and his explanation was
considered to be unconvincing. The defence evidence was
also considered by the High Court to be unimpressive and
unacceptable.
In our view, it is not possible to find any infirmity in the
judgment of the High Court upholding the prosecution story
and convicting the appellant and indeed we are unable to
find any cogent ground for re-appraising the evidence for
ourselves in this appeal. There is absolutely no
extraordinary reason for departing from the normal rule of
practice according to which this Court accepts the
conclusions of facts arrived at by the High Court to be
final. There is no grave injustice as a result of any
irregularity or other infirmity either in the trial or in
the judgments of the trial court and the High Court.
The result, therefore, is that the appeal fails and is
dismissed.
G.C. Appeal dismissed.
16- L796SCI/73
492