{"id":106515,"date":"1973-03-29T00:00:00","date_gmt":"1973-03-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-maj-i-c-lala-etc-etc-on-29-march-1973"},"modified":"2018-10-14T06:44:03","modified_gmt":"2018-10-14T01:14:03","slug":"union-of-india-vs-maj-i-c-lala-etc-etc-on-29-march-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-maj-i-c-lala-etc-etc-on-29-march-1973","title":{"rendered":"Union Of India vs Maj. I. C., Lala Etc. Etc on 29 March, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India vs Maj. I. C., Lala Etc. Etc on 29 March, 1973<\/div>\n
Equivalent citations: 1973 AIR 2204, \t\t 1973 SCR (3) 818<\/div>\n
Author: A Alagiriswami<\/div>\n
Bench: Alagiriswami, A.<\/div>\n
           PETITIONER:\nUNION OF INDIA\n\n\tVs.\n\nRESPONDENT:\nMAJ.  I. C., LALA ETC.\tETC.\n\nDATE OF JUDGMENT29\/03\/1973\n\nBENCH:\nALAGIRISWAMI, A.\nBENCH:\nALAGIRISWAMI, A.\nDUA, I.D.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1973 AIR 2204\t\t  1973 SCR  (3) 818\n 1973 SCC  (2)\t72\n CITATOR INFO :\n E\t    1981 SC 368\t (6,15,23,24)\n\n\nACT:\nIndian\tPenal Code (Act 45 of 1860), Ss. 120B, 420 and\t511,\nPrevention  of Corruption Act (2 of 1947), s. 5(1)(d),\t5(2)\nand 5A, Criminal Law Amendment Act, 1952 Ss. 6 and 7(3) Code\nof Criminal Procedure Act 5 of 1898), Ss. 196A, 235 and 239-\nOffence\t committed  at more than one  place-Order  of  which\nmagistrate     necessary-Cognizable    and     noncognizable\noffences--Criterion-Jurisdiction to try non-Government\tser-\nvant with Government servants.\nPractice-Duty of court to decide on genuineness of sanction.\n\n\n\nHEADNOTE:\nTwo  army-officers and a businessman were put up  for  trial\nbefore\tthe Special Judge under the Criminal  Law  Amendment\nAct,   1952.   They  were  all\tcharged\t with  offences\t  of\nconspiracy  under s. 120B, I.P,.C. read with s. 5(2) of\t the\nPrevention  of\tCorruption  Act\t and  s.  420  I.,P.C.\t The\nbusinessman  was  charged under s.420 and ss. 420  and\t511,\nI.P.C.\tThe  two army officers were also  charged  with\t the\noffences  under\t s. 420 I.P.C. read with s. 5(1)(d)  of\t the\nPrevention  of\tCorruption Act.\t After some  witnesses\twere\nexamined  by  the prosecution, on a petition  by  the  three\naccused,  the  High  Court  quashed  the  charges  and\t the\nproceedings  on\t the  grounds,\t(1)  that  the\tofficer\t who\ninvestigated  the case was not competent to do so; (2)\tthat\nthe offences were non-cognizable and hence the Special Judge\ncould not take cognizance-of them without sanction under  s.\n196A,  Cr.P.C.;\t and (3) in view of the enormous  length  of\ntime  that elapsed between the date the registration of\t the\ncase  and  the\texamination of the witnesses  (about  4\t 1\/2\nyears),\t to proceed further with the case would be an  abuse\nof the process of Court causing harassment to the accused.\nAllowing the appeal to this Court,\nHELD  : (1) (a) Under s. 5A of the Prevention of  Corruption\nAct,  before  it was amended in 1964, no officer  below\t the\nrank  of Deputy Superintendent of Police  could\t investigate\ninto offences punishable under Ss. 161, 165, 165A I.P.C., or\nunder s. 5 of the Prevention of Corruption Act, without\t the\norders\tof a Presidency Magistrate or the  Magistrate  First\nClass.\tWhere an offence is committed in more than one place\nthe order of every Magistrate within whose jurisdiction\t the\noffence\t or  part  of  the offence  was\t committed  was\t not\nnecessary to enable the investigation to be carried on.\t All\nthat is necessary is that the Magistrate who makes the order\nunder  s. 5A should have territorial jurisdiction  over\t the\nplace  where  any part of the offence took  place.   In\t the\npresent case, the offence of conspiracy was alleged to\thave\nbeen committed both at Tejpur as well as at Gauhati and\t the\nInspector  concerned  had obtained the order  of  the  First\nClass Magistrate, Tejpur. [821H; 822A-C]\nChinnappa  v.  State  of Mysore,  A.I.R.  1960\tMysore\t242,\nChatterjea V. Delhi Special Police Establishment I.L.R. 1969\nAssam  and  Nagaland  275  and\tUnion  of  India  v.  B.  N.\nAnanthapadmanabbiah, A..I.,R.<\/a> 1971 S.C. 1836, referred to.\n(b)  The High Court expressed doubt whether the order of the\nMagistrate of Tejpur was a genuine one.\t If he had any\tsuch\ndoubt  it  was the duty of the Judge to have gone  into\t the\nmatter thoroughly and satisfied\n819\nhimself\t whether the order was genuine or not, and  given  a\ncategorical  finding on the matter.  There should have\tbeen\nno room allowed for any doubt, or suspicion of any underhand\ndealing or unfair conduct, in a matter of this kind.  [823A-\nC]\n(2)  Under  Schedule  11  of  the  Criminal  Procedure\tCode\noffences   under  Ss.  161  to\t165,  I.P.C.  and   offences\npunishable  with imprisonment for life or imprisonment of  7\nyears  and upwards are shown as cognizable offences.   Under\ns. 5(2) of the Prevention of Corruption Act the sentence may\nextend to 7 years.  Therefore, an offence under s. 5 of\t the\nPrevention  of Corruption Act is a cognizable offence.\t The\nwords  'notwithstanding\t anything contained in the  Code  of\nCriminal  Procedure,  in  the section  merely  carve  out  a\nlimited exemption from the provisions of Criminal  Procedure\nCode  in so far as they limit the class of persons  who\t are\ncompetent  to investigate, and to arrest without a  warrant.\nThe  mere fact that under the Act certain  restrictions\t are\nplaced\tas to the officers who are competent to\t investigate\ninto  the offences mentioned in s. 5A would not\t make  those\noffences  any the less cognizable.  Therefore, the  offences\nunder  s.  161,\t 165  and  165A of  the\t I.P.C.\t and  s.  5,\nPrevention  of Corruption Act, are cognizable  offences\t and\nthere\tis  no\tquestion  of  their  being   cognizable\t  if\ninvestigated  by a Deputy Superintendent of Police and\tnon-\ncognizable when investigated by an Inspector of Police;\t nor\ncan there be any question of these offences being cognizable\nif   investigated  under  s.  156,  Cr.P.C.  but  not\twhen\ninvestigated under s.. 5A, Prevention of Corruption Act.  It\nis  illogical  to say that offences would be  cognizable  in\ncertain\t circumstances and non-cognizable in  certain  other\ncircumstances.\tTherefore, the reed for a sanction under  S.\n196A, Cr.P.C. does not arise. [824A-H; 825A-D; 827]\nUnion  of  India v. B. N. Ananthapadmanabhiah,\tA.I.R.<\/a>\t1960\nMysore\t242, Union of India v. Mahesh Chandra,\tA.I.R.<\/a>\t1957\nMadhya\tBharat\t3 and Public Prosecutor v.  Sheikh  Shariff,\nA.I.R. 1965 A.P. 372, referred to.\nTaj  Khan  v.  The  State, A.I.R.  1956\t Rajasthan  37,\t Ram\nBijhumal v. The State, A.I.R. 1958 Bombay 125 and Gulabsingh\nv. State, A.I.R. 1962 Bombay 263, approved.\nG.   K. Apte v. Union of India, A.I.R. 1970 Assam & Nagaland\n43,    disapproved.\n(3)The need to order re-investigation or to begin the  trial\nagain after the sanction under s. 196A is obtained, and\t the\nconsequent  inordinate delay and harassment of the  officers\nconcerned, do not arise at all.\t Hence, there is no question\nof quashing the charges on that ground. [827G-H]\n(4)  Under s. 6 and 7(3) of the Criminal Law Amendment\tAct,\n1952, and Ss. 235 and 239, Cr.P.C. the businessman  (private\nindividual)  and  the two army officers,  (public  servants)\ncould be tried together. [829A-C]\nThe  State of Andhra Pradesh v. Kandimalla Subbaiah  &\tAnr.<\/a>\n[1962] 1 S.C.R. 194, followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.\t 161
\nto 163 of 1970.\n<\/p>\n
Appeals\t by certificate from the. judgment and\torder  dated
\nMay 23, 1969 of the Assam and Nagaland High Court at Gauhati
\nin Cr. Rev.  Nos. 36, 39 and 46 of 1968.\n<\/p>\n
82 0
\nD.   Mookherjee, Avtar Singh, G. Das, S. P. Nayar and R.  N.
\nSachthey, for the appellant.\n<\/p>\n
Nuruddin Ahmad and N. N. Keswani, for the respondent.
\nHarbans Singh, for the respondents.\n<\/p>\n
V.   M.\t Tarkunade,  A. L. Arora and D. D. Sharma,  for\t the
\nrespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nALAGIRISWAMI,  J.-Two of the appellants, Major Lala and\t Lt.
\nCol.  Khanna are Army officers and the appellant in the\t 3rd
\nappeal,\t Gupta,\t is a businessman of Gauhati.  All  of\tthem
\nwere  put  up for trial before the Special  Judge  appointed
\nunder the Criminal Law Amendment Act 1952.  One charge which
\nwas  ,common to all the three of them was that between\tJune
\n1962 and January 1963 all of them agreed to commit or  cause
\nto   be\t committed  offences  under  section  5(2)  of\t the
\nPrevention  of\tCorruption Act, and of\tcheating  punishable
\nunder  section\t420  of the Indian  Penal  Code,  and  these
\noffences having been committed in pursuance of a  conspiracy
\nwere punishable under section 120B of the Indian Penal\tCode
\nread with section 5 (2) of the Prevention of Corruption\t Act
\nand  section  420  I.P.C. Mr.  Gupta,  the  businessman\t was
\ncharged under section 420 I.P.C. as well as section 511 read
\nwith  section  420 I.P.C. The two Army\tofficers  were\talso
\ncharged with offences under section 420 read with section  5
\n(1) (d) of the Prevention of Corruption Act.
\nThe case was filed before the Special Judge on 28-6-1963 and
\nthe charge was framed on 13-2-65.  After about 18 out of the
\n52 witnesses cited by the prosecution had been examined\t the
\nthree  respondents filed petitions under section  561A\tread
\nwith  section 439 of Code of Criminal Procedure\t before\t the
\nHigh Court of Assam & Nagaland on 28-3-68, 1-4-68 and  10-4-
\n68 respectively for quashing the charges.  A learned  Single
\nJudge  allowed these petitions on 23-5-1969 and quashed\t the
\ncharges\t and  the proceedings before the  learned  Special
\nJudge.\tHe did this on three grounds
\n\t      (1)   that  the officer who  investigated\t the
\n\t      case was not competent to do so;\n<\/p>\n
\t      (2)   that the offences that were being  tried
\n\t      were noncognizable and the Special Judge could
\n\t      not  have\t taken cognizance  of  them  without
\n\t      sanction\tunder  section 196A of the  Code  of
\n\t      Criminal Procedure, and
\n\t      (3)   that  in view of the enormous length  of
\n\t      time  between  2-2-63, the date on  which\t the
\n\t      case was
\n\t      821<\/span>
\n\t      registered  and 1-4-68, upto which  date\tsome
\n\t      witness  had been examined, the  last  witness
\n\t      having  been examined on 15-1-67, it  entailed
\n\t      undue  harassment to the accused\tpersons\t and
\n\t      the proceedings have to be quashed to  prevent
\n\t      further  harassment, abuse of the\t process  of
\n\t      the court and vexation to the accused persons.
\nThese three appeals have, therefore, been filed by the Union
\nof India by certificate granted by the High Court.
\n    We shall first of all deal with the question whether the
\nofficer\t who investigated into these cases was not  properly
\nauthorized  to do so.  The officer was an Inspector  of\t the
\nDelhi Special Police Establishment.  Under section 5A of the
\nPrevention  of\tCorruption. Act, before it  was\t amended  in
\n1964, no officer below the rank of the Deputy Superintendent
\nof  Police could investigate into offences punishable  under
\nsections 161, 165 and 165A of the Indian Penal Code or under
\nsection\t 5 of the Prevention of Corruption Act\twithout\t the
\norder  of  a Presidency Magistrate or a\t Magistrate  of\t the
\nFirst  Class.\tIn  this case the  Inspector  concerned\t had
\nobtained the order of the First Class Magistrate of  Tezpur.
\nThe  argument before the High Court, which was\taccepted  by
\nthe  learned Judge, was that as the offences  of  conspiracy
\nwere  alleged to have been committed both at Tezpur as\twell
\nas  at Gauhati, the investigation based on the order of\t the
\nTezpur\tMagistrate  alone was not a proper  one.   In  other
\nwords,\tthe argument was that unless the Inspector had\tbeen
\nauthorized  to\tinvestigate  not only  by  the\tFirst  Class
\nMagistrate of Tezpur but also by the First Class of  Gauhati
\ndistrict,  he  could not have done so.\t The  learned  Judge
\nreferred  to  and relied upon the decision in  Chinnappa  v.
\nState  of Mysore(1).  It was decided in that case  that\t any
\nFirst  Class  Magistrate appointed in a district  can  issue
\norders under section 5A of the Prevention of Corruption\t Act
\nfor  investigation of a case.  From this the learned  Single
\nJudge drew the conclusion that in respect of an offence said
\nto  have been committed at Gauhati as well as at Tezpur\t the
\norder  of  the Tezpur Magistrate was not  enough.   He\talso
\nrelied\tupon  the decision of the High Court  of  Assam\t and
\nNagaland in Chatterjee v. Delhi Special Police Establishment
\n( 2 ) . This decision has been upheld by this Court in Union
\nof  India v. B. N. Ananthapadmanabhiah<\/a>(3).  But that  was  a
\ncase  of a Delhi Magistrate sanctioning an investigation  of
\noffences  committed  in Assam and it was held that  such  an
\norder was not valid. That decision is. no authority for\t the
\nproposition that where an offence is committed in more\tthan
\none  place  the\t order of  every  Magistrate  within  whose.
\njurisdiction  the  offence  or\tpart  of  the  offence\t was
\ncommitted was necessary in order to
\n(1)  A. I. R. 1960 Mysore 242.\n<\/p>\n
(2) I. L. R. 1969 Assam & Nagaland 275.\n<\/p>\n
(3) A. I. R.  1971 S. C. 1836.\n<\/p>\n
822<\/span><\/p>\n
enable\tthe  investigation to be carried on.   All  that  is
\nnecessary  is that the Magistrate who makes the order  under
\nsection\t 5A  should have territorial jurisdiction  over\t the
\nplace where any part of the ingredients of the offence\ttook
\nplace.\tThat criterion is amply satisfied in this case.\t  On
\nprinciple  also such a contention seems to be devoid of\t any
\nsubstance.  The offence of conspiracy or for that matter any
\nother  offence\tmight  consist\tof  a  series  of  acts\t and
\nincidents  spread  over the whole country.  Very  often\t one
\nconspirator or one of the offenders might, not have even met
\nthe   other  conspirator  or  offender.\t  To   accept\tthis
\ncontention  would  be to hold that the Police should  go  to
\nevery Magistrate within whose jurisdiction some part of\t the
\nconspiracy  or\tone of the ingredients of  the\toffence\t has
\ntaken place.  We have no hesitation in rejecting it.
\nHe  also  seemed to have had some doubt as  to\twhether\t the
\norder of the Magistrate of Tezpur produced before him was  a
\ngenuine one.  To say the least, the attitude of the  learned
\nJudge is most surprising.  To put it in his own words :\n<\/p>\n
\t      “It  does\t not  appear that  any\torder  of  a
\n\t      Magistrate  form part of the record.   But  at
\n\t      the time of hearing, such an order was  placed
\n\t      before  me on behalf of the Prosecution.\t The
\n\t      application on which the order is said to have
\n\t      been passed by the Magistrate appears to\thave
\n\t      been addressed to the Court of the  Magistrate
\n\t      first  class at Tezpur, wherein it was  stated
\n\t      that   for   preoccupation   of\tthe   Deputy
\n\t      Superintendent  of Police,  the  investigation
\n\t      was  sought  to  be made by  an  Inspector  (A
\n\t      Police.\tThe petition is unnumbered  undated.
\n\t      What  appears  curious is\t that  although\t the
\n\t      application  was made before a  Magistrate  of
\n\t      the first class, the order passed is supported
\n\t      by a seal of the District Magistrate, Darrang.
\n\t      The order of the Magistrate runs as follows :-
\n\t      “Paper and F.I.R. seen.  Shri H. B. D. Baijal,
\n\t      Inspector\t is  permitted\tto  investigate\t the
\n\t      case.”\n<\/p><\/blockquote>\n
\t      There is an illegible signature with date 4-2-
\n\t      63  and  below  the  signature  the   official
\n\t      designation  has not been stated.\t It  appears
\n\t      that no order-sheet of the Magistrate has been
\n\t      produced in this regard and in above  circums-
\n\t      tances,  it cannot be unequivocally said\tthat
\n\t      this  document wag obtained in due  course  of
\n\t      business in compliance with section 5A of\t the
\n\t      Prevention  of Corruption Act.  Even  assuming
\n\t      that  the\t order is free from  doubt,  learned
\n\t      counsel  appearing  for  the  petitioners\t has
\n\t      urged  before me that since the venue  of\t the
\n\t      offences\thas  been  clearly  stated  in\t the
\n\t      charge, the permission given by the Magistrate
\n\t      for  investigation of the offences at  Gauhati
\n\t      is not valid.”\n<\/p><\/blockquote>\n
8 23
\nIf  he had any doubts about the genuineness of the order  of
\nsanction  it  was  his duty to have  gone  into\t the  matter
\nthoroughly  and\t satisfied  himself whether  the  order\t was
\ngenuine,  or  not.   It\t was  his  duty\t to  have  given   a
\ncategorical finding regarding the matter.  There should have
\nbeen  no  room\tallowed for any doubt or  suspicion  of\t any
\nunderhand  dealing  and unfair conduct in a matter  of\tthis
\nkind.\tIt  was even alleged on behalf of  the,\t respondents
\nthat  an  order was produced for the first time\t before\t the
\nlearned Judge and it was taken back by the prosecution.\t  If
\nthat  was so it proves a woeful lack of care on the part  of
\nthe  learned  Judge.  He should have retained the  order  on
\nfile and called for the necessary records and information in
\norder  to  find out whether the order was a genuine  one  or
\nnot.   We have before us the order of the Superintendent  of
\nthe Special Police Establishment dated 2-2-63 entrusting the
\ninvestigation  to  Inspector  Baijal and  directing  him  to
\nobtain the necessary permission from a competent  Magistrate
\nfor doing so. We have also been shown the papers relating to
\nthe  prosecution, papers given to the accused under  section
\n173  of\t the Code of Criminal Procedure.  Item 71  of  those
\npapers relates to the order of sanction dated 4-2-1963 given
\nby the Magistrate of Tezpur authorizing the Inspector of the
\nS.P.E. to investigate.\tThus, there is no doubt at all\tthat
\nInspecor  Baijal  had been authorized to  investigate  into,
\nthis case.  It only shows rather superficial way the learned
\nJudge chose to deal with this matter.\n<\/p>\n
The next question is whether offences under section 161, 165
\nand  165A of the Indian Penal Code and section 5 (2) of\t the
\nPrevention   of\t Corruption  Act  are  cognizable  or\tnon-
\ncognizable offences.  This becomes important for the purpose
\nof  deciding  whether  a  sanction  under  section  196A  is
\nnecessary.   The sanction necessary under section 6  of\t the
\nPrevention of Corruption Act and section 197 of the Code  of
\nCriminal  Procedure has been accorded by the  Government  of
\nIndia.\t What was contended by the respondents\tbefore\tthe,
\nHigh  Court  and was accepted by that Court was\t that  these
\noffences  being\t non-cognizable offences  a  sanction  under
\nsection\t 196A(2) is necessary and that\tprosecution  without
\nsuch  sanction\tis bad.\t Cognizable offence  is\t defined  in
\nsection\t 4(1)  (f) of the Code of Criminal Procedure  as  an
\noffence\t for which a police officer, within or\twithout\t the
\npresidency   towns,  may  in  accordance  with\tthe   second
\nschedule,  or  under any law for the time  bring  in  force,
\narrest without warrant.\t The argument which appealed to\t the
\nlearned Judge of the High Court was that as under section 5A
\nof  the\t Prevention of Corruption Act no officer  below\t the
\nrank of Deputy Superintendent of Police could investigate or
\nmake  any  arrest without a warrant in respect\tof  offences
\npunishable under section 161, 165 or 165A I.P.C. and section
\n5  of  the  Prevention\tof Corruption  Act,  they  were\t not
\noffences  for  which any police officer can  arrest  without
\nwarrant, and therefore,
\n824<\/span>
\nthey  are  not cognizable offences.  The same  argument\t was
\nrepeated  before  this Court ‘by Mr.  Tarkunde,\t emphasising
\nthat  “a police officer” means “any police officer”  and  as
\nany   police  officer  cannot,\tunder  section\t5A  of\t the
\nPrevention  of\tCorruption Act, arrest without\twarrant\t but
\nonly officers of and above the rank of Dy.   Superintendent,
\nthe  offences  mentioned in that section  are  noncognizable
\noffences.   If we pursue the same line of argument and\tlook
\nat the definition of non-cognizable offence in section\t4(1)\n<\/p>\n
(n)  which defines non-cognizable offence as an offence\t for
\nwhich a police officer, within or without a Presidency-town,
\nmay not arrest without warrant, it might mean that as  these
\nare  cases  where  i  police officer  of  the  rank  of\t Dy.
\nSuperintendent\tand above can arrest without  warrant  these
\nare not non-cognizable offences either.\t How can there be  a
\ncase  which  is neither cognizable nor-cognizable ?  It\t was
\nsought to be argued that these offences would ‘be cognizable
\noffences   when\t  they\tare  investigated  by\tthe   Deputy
\nSuperintendents\t of  Police and superior officers  and\tnon-
\ncognizable when they are investigated by officers below\t the
\nrank  of  Deputy  Superintendents.  We fail to\tsee  how  an
\noffence\t would\tbe cognizable in certain  circumstances\t and
\nnon-cognizable in certain other circumstances.\tThe  logical
\nconsequences of accepting this argument would be that if the
\noffences  are  investigated  by\t Deputy\t Superintendents  of
\nPolice\tand  superior  officers no  sanction  under  section
\n196A(2)\t would be necessary but sanction would be  necessary
\nif  they  are  investigated by officers below  the  rank  of
\nDeputy Superintendents of Police.  One supposes the argument
\nalso  implies that the fact that an officer- below the\trank
\nof  a  Deputy Superintendent is authorized by  a  Magistrate
\nunder  the  provisions\tof section 5A  would  not  make\t any
\ndifference,  to\t this situation.  We, do not  consider\tthat
\nthis is a reasonable interpretation to place.
\nUnder Schedule It of the Code of Criminal Procedure offences
\nunder sections 161 to 165 of the Indian Penal Code are shown
\nas  cognizable\toffences.   At\tthe  end  of  that  Schedule
\noffences  punishable  with death, imprisonment for  life  or
\nimprisonment  for  7  years and upwards are  also  shown  as
\ncognizable offences.  Under section 5 (2) of the  Prevention
\nof  Corruption Act the sentence may extend to  seven  years.
\nTherefore,  an offence under section 5 of the Prevention  of
\nCorruption Act is according to the provision in Schedule  II
\nto  the\t Code of Criminal Procedure  a\tcognizable  offence.
\nTherefore,  the\t mere  fact that  under\t the  Prevention  of
\nCorruption  Act\t certain restrictions are placed as  to\t the
\nofficers  who  are competent to\t investigate  into  offences
\nmentioned  in section 5A would not make those  offences\t any
\nthe  less cognizable offences.\tTile words  “notwithstanding
\nanything contained in the Code of Criminal Procedure”  found
\nat the beginning of section 5A(1) merely carve out a limited
\nexemption  ‘from  the  provisions of the  Code\tof  Criminal
\nProcedure in so far as they limit the class of persons- who
\n82 5
\nare competent to investigate into offences mentioned in\t the
\nsection\t and to arrest without a warrant.  It does not\tmean
\nthat the whole of the Code of Criminal Procedure.  including
\nSchedule II thereof, is made inapplicable.  Under section  5
\nof  the\t Code of Criminal Procedure all offences  under\t the
\nIndian\tPenal  Code shall be  investigated,  inquired  into,
\ntried,\t and  otherwise\t dealt\twith  according\t      to the
\nprovisions therein contained.  Also, all offences under\t any
\nother law (which would include the Prevention of  Corruption
\nAct)  shall  be\t investigated,\tinquired  into,\t tried,\t and
\notherwise  dealt with according to the same  provisions\t but
\nsubject\t to  any  enactment  for the  time  bring  in  force
\nregulating  the manner or place of investigating,  inquiring
\ninto,  trying  or otherwise dealing, with    such  offences.
\nSection\t 5A  of the Prevention of Corruption Act  should  be
\nrelated\t to this provision in section 5 (2) of the  Code  of
\nCriminal  Procedure,  which limits the\tapplication  of\t the
\nprovisions  of that Code to be subject to any enactment\t for
\nthe  time being in force regulating the manner or  place  of
\ninvestigating,\tinquiring into, trying or otherwise  dealing
\nwith such offences.  The only change which section 5A of the
\nPrevention  of\tCorruption  Act\t makes\tis  with  regard  to
\nofficers   competent  to  investigate  and  arrest   without
\nwarrant;  in all other respects the Code of Criminal  Proce-
\ndure  applies  and, therefore, there is no  doubt  that\t all
\noffences  mentioned  in\t section 5A  of\t the  Prevention  of
\nCorruption Act are cognizable offences.\n<\/p>\n
     The Assam High Court seems to have taken a line of\t its
\nown  in\t this matter.  In G. K. Apte v.\t Union\tof  India(“)
\ncuriously  enough the Bench, of which the learned Judge\t who
\ndealt with  this  case was a member, took  the\tview  that
\nthough an offence under section 161 is a cognizable offence,
\nif investigations were made under section 156 of the Code of
\nCriminal  Procedure  there would be no need for\t a  sanction
\nunder  section 196A of the Code of Criminal  Procedure,\t and
\nthere  can be a conviction under section 161 of\t the  Indian
\nPenal  Code, but if the investigation is made under  section
\n5A  of\tthe  Prevention\t of Corruption Act  it\twill  be  an
\ninvestigation into a non-cognizable offence and there should
\nbe  a  sanction under section 196A for the  trial  following
\nsuch  investigation.   For this conclusion the\tdecision  of
\nthis  Court in H. N. Rishbud & Inder Singh v. The  State  of
\nDelhi<\/a> (2) was relied upon.  We can see nothing in that\tcase
\nto  support this conclusion.  Nor are we able to see how  if
\nthe  investigation into an offence of misconduct  punishable
\nunder section 5(2) is done by a police officer of high\trank
\nthe offence is cognizable and if investigated by ail officer
\nof  a  lower rank it is non-cognizable.\t That  cannot  be  a
\nproper\t criterion  for\t deciding  whether  an\toffence\t  is
\ncognizable  or non-cognizable.\tUnless there are  clear\t and
\ncompelling reasons
\n(1) A.I.R 1980 Assam & nagaladd 43.\n<\/p>\n
(2) A. I. R. 1965 S. C. 196.\n<\/p>\n
5-L797Sup.C. 1.\/73
\n826<\/span>
\nto hold otherwise the division of offences given in the Code
\nof  Criminal  Procedure\t as  cognizable\t and  non-cognizable
\nshould\tbe  given  effect  to.\tWhen  the  same\t Code  makes
\nsanction under S. 196A necessary for trial of non-cognizable
\noffences it clearly contemplates non-cognizable offences  as
\ndefined in the Code.  There is no justification for  relying
\nupon extraneous considerations and far-fetched reasoning  in
\norder to get over the effect of these provisions.
\nWe may now refer to certain decisions of various High Courts
\non this point.\tIn Taj Khan v. The State(“) it was held
\n\t      “The fact that the power to investigate or  to
\n\t      arrest without warrant has been  circumscribed
\n\t      by  certain conditions (which conditions\twere
\n\t      clearly\tprovided   for\t the   purpose\t  of
\n\t      safeguarding  public servants from  harassment
\n\t      at  the hands of subordinate police  officers)
\n\t      under  the  proviso. to S. 3 of the  said\t Act
\n\t      cannot  lead  to\tthe  conclusion\t that\tsuch
\n\t      offence is non-cognizable.”\n<\/p>\n
\t      In Ram Rijhumal v. The State     ( 2)  it\t was\n\t      held :\n\t      \"The   provisions\t of  S.\t 3,  Prevention\t  of\n<\/pre>\n
\t      Corruption Act can only have one meaning,\t and
\n\t      the  meaning is that an offence under S.\t165A
\n\t      of  the  Penal Code has to be deemed to  be  a
\n\t      cognizable-  offence for the purpose  of\t,the
\n\t      Code  of\tCriminal  Procedure.   It  is\tonly
\n\t      because the Legislature enacted S. 5-A of\t the
\n\t      Prevention  of Corruption Act that, so far  as
\n\t      the  Presidency town of Bombay was  concerned,
\n\t      no   police  officer  below  the\trank  of   a
\n\t      Superintendent of Police could in the case  of
\n\t      an  offence under S. 165-A of the Penal  Code,
\n\t      investigate   it\twithout\t the  order   of   a
\n\t      Presidency  Magistrate.  There is\t nothing  in
\n\t      the  language  of S. 5-A which  would  suggest
\n\t      that  an offence under S. 165-A of  the  Penal
\n\t      Code  is\tnot to be treated  as  a  cognizable
\n\t      offence.”\n<\/p>\n
\t      In Gulabsingh v. State() it was held that
\n\t      “offence under S. 161, I.P.C. is a  cognizable
\n\t      offence.\tIts nature is not Affected by either
\n\t      S. 3 or S. 5A of the Prevention of  Corruption
\n\t      Act.   The  requirement that in  a  cognizable
\n\t      offence,\ta police officer should be  able  to
\n\t      arrest without warrant, is without any limita-
\n\t      tion  and\t section 5A cannot be split.  up  to
\n\t      mean  that  an offence can  be  cognizable  in
\n\t      reference to one officer and not in  reference
\n\t      to another.”\n<\/p>\n
(1) A. I R. 1956 Rajasthan 37.\t(2) A. I R. 1958 Bombay 125.
\n(3)  A. I R. 1962 Bombay 263.\n<\/p>\n
8 2 7
\nThe learned Judges specifically dissented from the  decision
\nin   Union  of\tIndia  v.  Mahesh  Chandra(“).\t In   Public
\nProsecutor  v.\tShaik Sheriff (2) it was  held\tthat  “these
\noffences cannot be treated as non-cognizable offences  when
\ninvestigated  by  an  officer  below  the  rank\t of   Deputy
\nSuperintendent\tof  Police simply on the  ground  that\tsuch
\ninvestigation  cannot be done without the order of a  Presi-
\ndency Magistrate or a Magistrate of the First Class.  In the
\nsame  way,  offences under section 5 of the  Act  cannot  be
\ntreated\t as non-cognizable even when investigated by  a\t low
\nrank officer.  Thus, the provision in S. 5A is of the nature
\nof  a special provision which applies to offences  specified
\ntherein which are cognizable offences including those  under
\nsection\t 5 under all circumstances.” They also\treferred  to
\nthe decision in Union of India v. Mahesh Chandra (supra)  to
\nthe  effect  that an offence under S. 161 I.P.C.  and  under
\nsub.  s. 2 of S. 5, Prevention of Corruption Act  is  cogni-
\nzable\tso  far\t as  officers  of  the\trank  of  a   Deputy
\nSuperintendent of Police and above are concerned, but so far
\nas  the officers below the rank of Deputy Superintendent  of
\nPolice are concerned the said offences are non-cognizable in
\nso   far  as  they  cannot  investigate\t them  without\t the
\npermission  of\ta Magistrate of’ the First Class,  and\theld
\nthat :\n<\/p>\n
\t      “the learned Judges only intended to emphasise
\n\t      the  provision in S.5-A and chose to refer  to
\n\t      it as a non-cognizable aspect of the  offences
\n\t      comprised\t in  the Act and  to  describe\tthat
\n\t      aspect also as non-cognizable for the  limited
\n\t      purpose of the provision in S. 5-A.”\n<\/p><\/blockquote>\n
Thus,  the  preponderance  of opinion of  the  various\tHigh
\nCourts is in favour of the view we are taking.
\nWe  are,  therefore, clearly of opinion\t that  the  offences
\nunder  sections 161, 165 and 165A of the Indian\t Penal\tCode
\nand  section  5\t of the Prevention  of\tCorruption  Act\t are
\ncognizable offences and there is no question of their  being
\ncognizable  if\tinvestigated by a Deputy  Superintendent  of
\nPolice and non-cognizable when investigated by an  Inspector
\nof Police.  Nor can there be any question of those  offences
\nbeing cognizable if they are investigated under section\t 156
\nof  the\t Cr.  P.C. but not when investigated  in  accordance
\nwith  the  provisions  of section 5A of\t the  Prevention  of
\nCorruption Act.\t The question, therefore, of the need for  a
\nsanction  under section 196A does not arise.   Consequently,
\nthe  need  to order re-investigation or to begin  the  trial
\nagain after the sanction under section 196A is obtained, and
\nthe  consequent\t inordinate  delay  and\t harassment  of\t the
\nofficers  concerned, reasons that weighed with\tthe  learned
\nSingle\tJudge for quashing the charges, does not arise.\t  It
\nmay  incidentally  be mentioned that  the  respondents\ttook
\nnearly three years before they moved the High
\n(1) A. 1. R. 1957 Madhya  Bharat 43.\n<\/p>\n
(2) A. 1. R. 1965 A. P. 372.\n<\/p>\n
828<\/span><\/p>\n
Court  for  quashing  the  charges  and\t are,  thus,  to   a
\nconsiderable extent responsible for the delay.
\nOn behalf of Mr. Gupta it was argued that he cannot be tried
\nalong  with the two Army officers.  Under section 6  of\t the
\nCriminal  Law Amendment Act 1952 the Special Judge  may\t try
\nany  conspiracy\t to commit or any attempt to commit  or\t any
\nabetment  of  any of the offences punishable  under  section
\n161, 165 or 165A of the Indian Penal Code or sub-section (2)
\nof section 5 of the Prevention of Corruption Act, and  under
\nsub-section(3) of section 7 of the same Act a special judge,
\nwhen trying any case, may also try any offence other than an
\noffence\t specified in section 6 with which the accused\tmay,
\nunder  the Code of Criminal Procedure, 1898, be\t charged  at
\nthe  same trial.  Under section 235 of the Code of  Criminal
\nProcedure if in one series of acts so connected together  as
\nto  form  the same transaction, more offences than  one\t are
\ncommitted  by the same person, he may be charged  with,\t and
\ntried  at  one\ttrial for, every  such\toffence,  and  under
\nsection 239 persons accused of the same offence committed in
\nthe  course  of\t the same transaction, as  well\t as  persons
\naccused of an offence and persons accused of abetment, or of
\nan attempt to commit such offence, may be charged and  tried
\ntogether.   In\tThe State of Andhra  Pradesh  v.  Kandimalla
\nSubbaih & Anr.<\/a>(1) this Court observed :\n<\/p>\n
\t      “No doubt, the offence mentioned in charge No.
\n\t      1\t is  alleged to have been committed  not  by
\n\t      _just  one person but by all the\taccused\t and
\n\t      the question is whether all these persons\t can
\n\t      be  joint\t tried\tin  respect  of\t all   these
\n\t      offences.\t To this kind of charge S. 239 would
\n\t      apply.\tThis  section  provides\t  that\t the
\n\t      following\t persons  may be charged  and  tried
\n\t      together, namely :\n<\/p><\/blockquote>\n
\t      (1)   persons  accused  of  the  same  offence
\n\t      committed\t  in   the  course   of\t  the\tsame
\n\t      transaction;\n<\/p><\/blockquote>\n
\t      (2)   persons   accused  of  an  offence\t and
\n\t      persons  accused of abetment or an attempt  to
\n\t      commit such an offence;\n<\/p><\/blockquote>\n
\t      (3)   persons  accused of\t different  offences
\n\t      committed\t  in   the  course   of\t  the\tsame
\n\t      transaction.\n<\/p><\/blockquote>\n
\t      Clearly,\ttherefore, all the  accused  persons
\n\t      could be tried together in respect of all\t the
\n\t      offences now comprised in charge No. 1.”\n<\/p><\/blockquote>\n
In that case the first accused was a public servant and\t the
\nother  accused\twere private individuals to whom  the  first
\naccused\t was  alleged to have sold  transport  permit  books
\nintended to be issued
\n(1)  [1962] 1 S. C. R. 194.\n<\/p>\n
829<\/span><\/p>\n
to  Central Excise Officers for granting permits to  persons
\napplying bona fide for licences to transport tobacco.\tThis
\nCourt  also  pointed out that “sub-s. (3) of s.\t 7  provides
\nthat when trying any case, a special judge may also try\t any
\noffences other than an offence specified in s. 6 with  which
\nthe  accused may under the Code of Criminal Procedure,\t1898
\nbe  charged  at\t the same  trial,  and\tclearly,  therefore,
\naccused\t no.  1\t could be tried by  the\t Special  Judge\t for
\noffences  under\t s.  120B read with ss.\t 466,  467  and\t 420
\nJ.P.C.,\t and  similarly the other accused who are,  said  to
\nhave  abetted  these  offences could also be  tried  by\t the
\nSpecial\t Judge.”  There is, therefore, no objection  to\t Mr.
\nGupta being tried along with the two Army officers.
\nThough in the revision petitions filed before the High Court
\nthe  question as to whether on the evidence produced  before
\nthe  Special Judge the offences with which  the\t respondents
\nhad  been  charged could be said to have  been\tprima  facie
\nestablished,  was raised, the learned Single Judge  has\t not
\ndealt  with  that  question apparently because\tit  was\t not
\nargued\tbefore\thim.  We do not, therefore, propose  to\t say
\nanything about the merits of the case.\n<\/p>\n
It  is not necessary to refer to the, decision in Madan\t Lal
\nv.  state  of Punjab(1) and Bhanwar  Singh  v.\tRajasthan(2)
\nwhich  are  relied upon on behalf of the appellants  in\t the
\nview  that  we have taken that all the offences\t with  which
\nthe,  accused  are  charged  are  cognizable  offences,\t and
\ntherefore,  the\t question  whether  charges  which   require
\nsanction  under\t s, 196A could be  tried  alongwith  charges
\nwhich  did not require such sanction and the entire  charges
\nare  vitiated for want of sanction, as held by\tthe  learned
\nSingle Judge, does not arise.\n<\/p>\n
The appeals are allowed and the order of the learned  Single
\nJudge  is set aside.  The Special Judge will now proceed  to
\ndeal with the cases and dispose of them as expeditiously  as
\npossible as the matter has been pending for a long time.\n<\/p>\n
V.P.S.\t\t\t\t  Appeals allowed.\n<\/p>\n
(1) [1967] 3 S. C. R. 439.  (2) [1968] 2 S. C. R. 528.
\n83 0<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India vs Maj. I. C., Lala Etc. Etc on 29 March, 1973 Equivalent citations: 1973 AIR 2204, 1973 SCR (3) 818 Author: A Alagiriswami Bench: Alagiriswami, A. PETITIONER: UNION OF INDIA Vs. RESPONDENT: MAJ. I. C., LALA ETC. ETC. DATE OF JUDGMENT29\/03\/1973 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. DUA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-106515","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India vs Maj. I. C., Lala Etc. 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