ORDER
T. Ch. Surya Rao, J.
1. The petitioner assails the order dated 28-6-2001 passed by the learned Special Judge for C.B.I. cases, Hyderabad, in Cri. M.P. No. 148 of 2000 in C.C. No. 17 of 1999.
2. The petitioner is the accused in C.C. No. 17 of 1999 filed by the C.B.I. for the alleged offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘the Act, 1988’ for brevity).
3. The factual matrix germane in the context for better understanding of the matter and for eventual adjudication may be stated thus : The petitioner accused has been working as Regional Chief, Housing and Urban Development Corporation Limited, a concern totally owned by the Government of India. Basing on a- complaint dated 27-6-1998 received from one Dr. C. Suresh against the petitioner, a case in Crime No. 10/ACB-CR/98 had been registered by the Anti Corruption Bureau of the State of Andhra Pradesh and the agency laid a trap against him. The trap was successful and the bribe amount of Rs. 4,00,000/- said to have been received by the petitioner when offered by the complainant on demand by the petitioner was recovered. Thereupon under a letter No. 83/RCT Crime/98 dated 29-6-1998 addressed by the Director General of Anti-Corruption Bureau, the case had been transferred to the CBI on the point of jurisdiction since the petitioner is a Central Government employee, and the latter upon receiving the same registered the case in RC.21(A)/98/CBI/Hyderabad under Sections 7, 13 (2) read with Section 13(1)(d) of the Act, 1988; continued the investigation, examined the witnesses; and after having obtained necessary sanction from the competent authority eventually laid charge sheet before the Special Court for CBI cases at Hyderabad, against the petitioner.
4. The petitioner appeared before the Court pursuant to summons issued to him. After having been supplied with the copies of documents he filed application under Section 239 of the Code of Criminal Procedure (‘the Code’ for brevity) seeking to discharge from the case on the premise that ACB being a State organisation had no jurisdiction , to lay trap, and the investigation conducted by the said agency resulted in serious miscarriage of justice and grave prejudice to the petitioner and, therefore, he shall be discharged. That petition was resisted by the CBI by filing a counter. After having heard on either side, the learned Special Judge dismissed the petition under the impugned order.
5. The seminal point for consideration in this petition is, whether the registration of the crime and laying of trap against the petitioner by a State agency, namely, ACB is illegal for want of jurisdiction and what is the consequence of such illegality?
6. Obviously in this case the registration of the crime, laying of trap and the initial investigation have been done by the ACB, which is a State agency against the petitioner, who is admittedly an employee of the Central Government Undertaking. Central Bureau of Investigation is the agency established to conduct investigation into the cases of bribery and misconduct against the employees of Central Government and its undertakings. Needless to advert to the specifics of the case inasmuch as the adjudication of the point being one of pure question of law can be determined sans the same. The legal position is no more res Integra and has been squarely covered by judgments of the Apex Court. In view of the significance attached to the point involved for determination since it might arise time and again in several cases where one agency which lacks jurisdiction initiating the criminal proceedings and the competent agency coming into the picture at a later point of time, it is expedient to have a critical examination of the same.
7. It is one of the essential functions of the State to maintain law and order. To maintain an orderly society, the State has undertaken the task of bringing the culprits to book and prosecute them. The essential function of the police established under the Indian Police Act, 1861 is prevention and detection of the crime and to bring the culprits to book. In view of the diversity of cases pertaining to various fields like regular law and order problems, white collar offences, offences under special enactments both State and Central, and other economic offences, various investigating agencies have been established for administrative convenience of the State but the investigation would be always with the police. The investigating agency functions under the executive control of the State. The function of the investigating agency is merely to collect evidence and on being satisfied that there has been a prima facie case to initiate proceedings before a Court of law for its adjudication as to the guilt or otherwise of the person proceeded against. Adjudication, therefore, is the sovereign judicial function of the State. If this is understood, there may not be any difficulty in adjudicating the short but an important point that arises in this case.
8. The Act, 1988 is a central piece of legislation enacted with the object of consolidating and amending the law relating to the prevention of corruption and other matters connected therewith. It envisages penal consequences for taking gratification other than legal remuneration and for criminal misconduct resorted to by the Public Servants and also any conspiracy to commit or attempt to commit or abetment of such offences. It further envisages the appointment of a Special Judge in the cadre of a Sessions Judge to try the offences. Section 17 thereof envisages the ranks of the various investigating agencies authorised to conduct investigation of offences under the Act. According to the said Section, no police officer below the rank; in the case of Delhi Special Police Establishment of an Inspector of Police; in the metropolitan areas of an Assistant Commissioner of Police; and in all other places of a Deputy Superintendent of Police or a police officer of the equivalent rank shall investigate any offences punishable under the Act, 1988 without the order of a Metropolitan Magistrate or a Magistrate of First Class, as the case may be. The provision thus obligates the investigation to be done by an officer of a particular rank depending upon the category of establishment to which he belongs. Notwithstanding the rank of police officer and the agency to which he belongs, ultimately the investigation to be carried out by him shall be in accordance with the provisions contained in the Code inasmuch as the Act, 1988 has not specifically envisaged a separate procedure for conducting investigation. As per Section 22 thereof the provisions of the Code apply save and except the specific areas envisaged by the Act, 1988.
9. Turning to the Delhi Special Police Establishment Act, 1946 (‘the Act, 1946’ for brevity), it has been enacted for constituting a special police force under the superintendence and administration of the Central Government notwithstanding the provisions contained in Indian Police Act, 1861. The special police establishment constituted under the Act, 1946 is a specialised agency for making enquiries and investigation into certain specified offences. It is supplementary to the State police force and has concurrent powers of investigation in respect of offences notified under Sections 3 and 5 of the Act, 1946. The offences under the Act, 1988 can be investigated into by the State agency or by the Central agency or by any police agency as can be seen from Section 17 of the said Act with the qualification that he shall be of a particular rank. With a view to avoid duplication of work, the Central Bureau of Investigation — a specialised investigating agency under the special police establishment — is entrusted with the task of investigation of the cases of corruption and bribery against the employees of Central Government and Its Undertakings and the Anti-Corruption Bureau — a specialised investigating agency of the State — shall investigate the said offences in respect of the State Government employees. According to Sub-section (2) of Section 2 and Sub-section (2) of Section 5 of the Act, 1946, the special police establishment shall have all the powers, duties, privileges and liabilities of a regular police officer while conducting the investigation of the offences enumerated in the Act, 1988. In fact, it requires the consent of the State Government for the Central Bureau of Investigation to conduct investigation even against a Central Government employee when that employee is working within the territorial limits of that State. At times it may require exchange of intelligence and co-ordination among various police agencies for an effective investigation into an offence or to nab the culprits, who can roam throughout the length and breadth of the country. In the process, either agency may seek the necessary co-operation and coordination from the other agency, which is a means to the ultimate end of nabbing the culprits. All this comes within the realm of investigation.
10. The investigation into the offence is one aspect and trial of the same is an altogether different aspect. It is the essential function of the Courts to adjudicate the cases. The Code contains the necessary provision enabling the Courts to take cognizance of the offence. The Code also engrafted certain limitations on the Courts to take cognizance as can be seen from Chapter XIV of the Code under the caption ‘Conditions requisite for initiation of proceedings’. The limitations are contained in Sections 193 and 195 to 199 of the Code. Any irregularity or illegality committed during the process of investigation is certainly not a limitation on the Court to take cognizance as can be seen from Chapter XIV. Therefore, the illegality if any committed by the investigating agency during the course of investigation will not affect the power of the Court to take cognizance of the offence and to punish the offender.
11. Be that as it may, turning to the law on the point, in Prabhu v. Emperor, AIR 1944 PC 73 : (1945 (46) Cri LJ 119), the Privy Council held that the validity of trial and conviction cannot be affected by any irregularity in the arrest of a man. That was the first pronouncement on the point by the Privy Council.
12. In H.N. Rishbud v. State of Delhi, the Apex Court encountered with two important aspects — firstly that the provisions contained in the Prevention of Corruption Act, 1947 directing the investigation to be carried by a particular rank of a police officer are mandatory or directory; and secondly that the trial followed up the said investigation is illegal. The Apex Court held that the provision contained in the Prevention of Corruption Act, 1947 was mandatory and the investigation conducted in violation thereof was illegal. However, the subsequent trial was held to be not vitiated. The relevant observations may be excerpted herein below thus (Para 9) :
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr.P.C. is one out of a group of sections under the heading “conditions requisite for initiation of proceedings.” The language of this section is in marked contrast with that of the other Sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a) (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clauses (a) or (b) of Section 190(1) and in any case cognizance is so taken in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr.P.C. is attracted.
If therefore cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illgality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial is well settled.
In para 10 of the Court further held thus :
In our opinion, therefore when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for wholly or partly and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above consideration that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.
The said Judgment came to be rendered directly under the provisions of the Prevention of Corruption Act, 1947. Section 5-A of the said Act which came up for consideration in the said Judgment, is akin to Section 17 of the Act, 1988. The said Judgment was followed by the Apex Court in its later judgments in State of Madhya Pradesh v. Mubarak Ali, ; Munnalal v. State of Uttar Pradesh, ; State of Andhra Pradesh v. Venugopal, and A.C. Sharma v. Delhi Administration, .
13. In A.C. Sharma’s case (1973 Cri LJ 902) a three-Judge Bench of the Apex Court held thus :
The schemes of the two enactments namely the Delhi Special Police Establishment 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 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 Section 5-A without unreasonably exposing the public servant concerned to frivolous and vexatious proceedings. The Court further held that the setting up of Delhi Special Police Establishment by the Central Government under the Delhi Special Police Establishment Act does not by itself deprive the anti-corruption branch, Delhi administration of its jurisdiction to Investigate the function of bribery and corruption against Central Government employees in Delhi. Relying on Rishbud’s case (1955 Cri LJ 526) (SC) it was held that any irregularity or any illegality committed in the course of investigation does not by itself effect the legality of the trial by otherwise a competent Court unless miscarriage of justice has been caused thereby.
14. In Tarsem Lal v. State of Haryana, AIR 1987 SC 806 : (1987 Cri LJ 715) according to the facts the Sub-Divisional Officer upon receiving the complaint against subordinate Patwari laid trap, recovered the amount and then lodged the complaint with the Station House Officer, Jagadhri police station on the basis of which F.I.R. was issued. In the prosecution before the Court eventually the Patwari was convicted. The Sub-Divisional Officer who was a Revenue Officer and was a superior officer to the Patwari obviously had no jurisdiction to lay the trap. Even then the conviction was upheld. Although it was not specifically held as a principle by the Apex Court in the judgment, the facts of that case are quite obvious.
15. It is expedient to consider the recent judgment of the Apex Court in State of West Bengal v. Narayan K. Patodia, . That was a case where a special investigation agency was constituted under the West Bengal Sales Tax Act known as Bureau of Investigation. Under Section 7 of the said Act the Bureau of Investigation is the only competent authority to investigate in respect of any offence under the said Act. In other words, no other authority can carry out investigation or hold enquiry into any case of alleged or suspected evasion of tax as well as the malpractice connected therewith. The Bureau of Investigation conducted some discrete investigation against the respondent in that case and when that investigation revealed that the respondent committed forgery and impersonation to defraud the Government of a huge sale tax amount. On a complaint presented by the Assistant Commissioner of Commercial Taxes to the Deputy Superintendent of Police attached to Bureau of Investigation he in turn forwarded the complaint to the S.H.O. Hari Narainpur police station, Calcutta, a crime was registered by the regular police. The respondent then moved the High Court for quashing the F.I.R. the High Court on the ground that the Bureau of Investigation alone can conduct investigation and hence no police officer can investigate into the offence under the Indian Penal Code or any other Act read with offences committed under Section 88 of the Sales Tax Act. On an appeal to the Supreme Court it was held in para 17 thus :
A reading of Section 7 makes it clear that creation of a Bureau of Investigation is for; the purpose of discharging the function envisaged in Sub-section (3) which of course includes the investigation also. But there is nothing in Section 7 that such investigation can be carried on only by the Bureau and not any other investigation agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.
In para 18 the Apex Court held further thus :
The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under the Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of a proper and effective investigation. Criminal justice would be the serious casualty then.
It is obvious thus if the special enactment does not specifically exclude the investigation by any other agency the Code of Criminal Procedure, which is a parent Act continues to apply which envisaged investigation, enquiry and trial of cases.
16. Except the Judgments in Narayan K. Patodia’s case (2000 Cri LJ 1811), all other judgments of the Apex Court referred to supra have been rendered under the provisions of the Prevention of Corruption Act. In those cases, Section 5-A of the old Act was considered. That provision was held to be mandatory. Notwithstanding the same violation thereof was held to have no effect on the cognizance taken by the Court and the subsequent trial. In Rishbud’s case (1955 Cri LJ 526) the Apex Court also considered Sub-section (2) of Section 156 of the Code. But Sub-section (2) of Section 156 of the Code was considered in the context to see whether the provisions of Section 5-A of the old Act are mandatory or directory. It was held that Sub-section (2) of Section 156 of the Code should not have been invoked in respect of an investigation carried by an officer below the rank of Deputy Superintendent of Police without necessary authorisation from the Magistrate in view of emphatic negative language used in Section 5-A of the old Act. The Apex Court was of the view that Sub-section (2) of Section 156 would apply only to the investigation done by an officer who is not empowered under that Section i.e. with reference to Sub-sections (1) and (3) thereof. The Apex Court held that obviously Sub-section (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than that who is specifically authorised. In the instant case, the problem is not identical. It is a case where initial registration of the crime and laying of the trap was done by an officer other than the competent to do so in respect of a Central Government employee. There is no provision in the Delhi Special Police Establishment Act, which interdicts the State agency from registering the crime or laying the trap. What Section 17 of the Act, 1988 says is that no police officer below the rank of Inspector of Police in case of Delhi Special Police Establishment, no police officer below the rank of the Assistant Commissioner of Police in metropolitan areas and in all other areas no police officer below the rank of Deputy Superintendent of Police shall investigate. The Act envisages the investigation of offences by not only the Delhi Special Police Establishment Act but also by other agencies. It is, therefore, no violation of the mandatory provisions of Section 17 of the Act, 1988. It is in this context appropriate to consider Sub-section (2) of Section 156 of the Code, which reads as under :
156. Police officer’s power to investigate cognizable case :–
(1)…
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3)…
It is obvious from this provision that the investigation done by a police officer who is not empowered under Section 156 of the Code shall not be called in question at any stage of the proceedings on the ground that he was not empowered to investigate under the said Section. Obviously, Section 156 of the Code empowers in all cognizable offences the investigation by any officer incharge of a police station. The offences under the Prevention of Corruption Act are cognizable offences. Under Section 2(3) of the Act 46 the Inspector of Police C.B.I. while conducting investigation shall be deemed to be an officer in charge of a police station for all practical purposes. It is apt to quote the relevant observations of the Apex Court in Narayana K. Ptodia’s case (2000 Cri LJ 1811) (cited supra) in para 13 at page 452 (of SCC) : (1814 of Cri LJ) thus :
The Constitution Bench which decided A.R. Antulay v. Ramdas Srinivas Nayak, has cautioned that the Code is the parent statute which provides for investigations, inquiry into and trial of cases and unless there is a specific provision in another statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking a cue from the said ratio this Court held recently in Gangula Ashok v. State of A.P., while interpreting Section 4(2) of the Code as follows : (SCC PP 509-10 : (at pp 821-22 of Cri LJ) Para 13) :
A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision, which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby.
The eventual conclusion that follows from the above discussion is that the investigation done by the State agency cannot be questioned on the premise that it is illegal having not been empowered to do it in view of the bar contained in Section 156(2) of the Code.
17. From the above discussion what emerges is that (1) if the investigation carried by a police officer is in violation of a mandatory provision of the Act it becomes illegal but if the provision is directory the investigation carried in violation thereof is not illegal; (2) illegality in the investigation by itself will not vitiate the merits of the case the cognizance whereof was taken by a competent Court unless that illegality in the investigation is shown to have caused in any manner miscarriage of justice: (3) In the absence of any specific statutory provision prohibiting investigation the investigation done by a Police Officer shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate in view of Sub-section (2) of Section 156 of the Code, and (4) if the illegality in the investigation is pointed out at the initial stage of the case the same can be rectified by issuing appropriate orders by the Court. The reason is not far to seek and is that investigation is nothing but gathering of evidence in support of the charge against the accused, but adjudication thereof is by the Court according to the merits of the case and the illegality in the investigation when on facts the case can be effectively adjudicated by the Court, will not affect the merits of the case.
18. Sri V. Jogaiah Sharma, learned counsel appearing for the revision petitioner, contends that the cases arising under the Prevention of Corruption 1947 have no application to the present case arising under the Act 1988 inasmuch as Sections 161 to 165-A of the Indian Penal Code have been omitted by the new Act. Apropos the said contention it may be reiterated here that even the Act 1988 has not excluded the application of the provisions of the Criminal Procedure Code except in areas where they have been specified under the Act like tendering pardon. The provisions contained in the Code in Chapter XII pertaining to investigation continued to apply even in cases where the C.B.I. has to conduct investigation. In this connection, the learned Standing Counsel appearing for the respondent C.B.I contends that the C.B.I. Manual contains a provision enabling the State agency to take immediate action in respect of the Central Government employees in certain circumstances. The learned counsel invited my attention to paragraph 9 of C.B.I. Manual, which in fact was extract in the counter filed by it in the revision case. It is obvious from paragraph 9 of the said Manual that at rap can be laid by a State agency against a Central Government employee in case of urgency. In fact, in A.C. Sharma’s case cited supra the Apex Court relied upon a particular G.O. enabling the Delhi Administration to act in respect of the Central Government employees. The Apex Court in Vineeth Narayana v. Union of India, (1997) 10 Supreme 476 : (1998 Cri LJ 1208) has quoted with approval the provisions of the C.B.I. Manual. Inasmuch as after the transmission of the F.I.R. the C.B.I. in fact has taken up the investigation in this case and charge sheet has been also laid by it, the initial action on the part of the A.C.B. in having laid the trap after registering the case, being not in violation of any mandatory or directory provision of law therefore in my considered view, is not illegal. For the above reason the contention of the learned counsel for the petitioner that the long line of authorities referred to supra rendered by the Apex Court have no application having been rendered under the old Act of 1947 merits no consideration. It is open to the petitioner at the time of trial to show to the Court convincingly that the initial trap laid by the State agency namely A.C.B. after having registered the crime against the petitioner would result in substantial miscarriage of justice but it cannot be a ground in my considered view to discharge the accused from the case.
19. For the foregoing reasons, the revision case fails and the same is dismissed. Revision Petition dismissed.