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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs……..………....OF 2014 (Arising out of Special Leave Petition (Crl.) Nos.2521-2522 of 2014)

Union of India etc. Rep. through Superintendent of Police        …Appellant(s)  

                versus

T. Nathamuni … Respondent(s)

J U D G M E N T

M.Y. Eqbal, J.

Leave granted.

2. The present appeals are directed against the common  

judgment and order dated 5.7.2013 passed by the Madurai  

Bench of Madras High Court in Crl.O.P. No.1943 & 6464 of  

2010, whereby the High Court  set aside the order passed by  

the  Trial  court  permitting  a  Sub-Inspector  of  Police  to  

investigate the matter  under  the Prevention of  Corruption  

Act.

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3. The facts giving rise to the present appeals are that  

on the basis of a complaint from one S. Muniraj a case being  

RC  50(A)/2009  was  registered  by  Central  Bureau  of  

Investigation,  ACB,  Chennai  against  respondent  -  T.  

Nathamuni, Inspector of Income Tax on the allegation that  

the accused had demanded an amount of Rs. 5,000/- from  

the complainant.  A trap was laid and allegedly the accused  

was caught red handed while accepting the bribe amount.  

Initially,  the  case  was  investigated  by  Mr.  Lawrence,  

Inspector  of  Police  and  owing  to  some  administrative  

reasons,  the  Superintendent  of  Police,  Central  Bureau  of  

Investigation, Anti Corruption Branch, Chennai filed petition  

dated  22.9.2007  under  Section  17  of  the  Prevention  of  

Corruption Act, 1988 (in short, ‘the Act’) before the Court of  

Special  Judge  CBI  cases,  Madurai  seeking  permission  for  

investigation of  the case by Shri  G.A.  Suriya  Kumar,  Sub-

Inspector  of  Police,  instead  of  Mr.  Lawrence,  Inspector  of  

Police.   

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4. The Special  Judge for CBI cases, Madurai vide order  

dated 24.09.2009 allowed the aforesaid petition permitting  

G.A. Suriya Kumar, Sub-Inspector of Police to investigate the  

case.  After completion of investigation, charge sheet dated  

01.12.2009 was filed in the Court of Special Sessions Judge  

for CBI cases, Madurai and the Court took cognizance and  

assigned it CC No.7/2009.

5. During the course of trial, the respondent moved the  

High Court preferring criminal original petition under section  

482 of Criminal Procedure Code (in short, ‘Cr.P.C.’) to quash  

the entire proceedings in CC No.7/2009 on the ground that  

there is correction in the FIR and sanction was not accorded  

by  proper  authority.   Respondent  also  preferred  another  

petition to call for the records and to quash the order dated  

24.09.2009 passed by the Special Judge, Madurai in Crl. M.P.  

No.549  of  2009  permitting  Shri  GA  Suriya  Kumar,  Sub-

Inspector of Police to investigate the case.

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6. The  High  Court  vide  its  impugned  order  dated  

5.7.2013 set aside aforesaid order of the Trial Court on the  

ground that Section 17 of the Act provides that if the officer  

not below the rank of Inspector of Police is authorized by the  

Government, such officer can investigate the case without  

permission of the Court.   There is  no specific  provision in  

Section 17 of the Act that the Sub-Inspector of Police is also  

empowered to investigate the case with the permission of  

the Court.  The High Court further observed that the Special  

Court without assigning any reason in the order permitted  

the Sub-Inspector of Police to investigate the matter and the  

same is not in accordance with law.

7.    Hence, these appeals by special leave by the Union of  

India as well as the State.   

8.   We have heard learned counsel for the parties.  Mr. K.  

Radhakrishnan,  learned  senior  counsel  appearing  for  the  

appellant  submitted  that  the  High  Court  has  failed  to  

appreciate  that  Special  Judge  granted  permission  to  

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aforesaid Sub-Inspector of Police, CBI, Chennai to investigate  

the case and after completion of the investigation, charge  

sheet was filed and cognizance was taken.  Learned counsel  

contended that the High Court interpreted Section 17 of the  

Act erroneously.  The provisions of Section 17(a) of the Act  

prescribe  that  without  the  permission  of  the  Court,  the  

investigation  of  the  case  below  the  rank  of  Inspector  of  

Police shall not be done.  But in this case, the investigation  

was  done  with  the  order  of  the  Court.   Learned  counsel  

submitted that by virtue of Section 5(3) of the Delhi Special  

Police Establishment Act  any member of the Delhi  Special  

Police Establishment of or above the rank of Sub-Inspector is  

made officer-in-charge of police station and, therefore, they  

have the power to investigate into the offences mentioned in  

the  notification  under  Section  3  of  the  Act  within  their  

respective limits and they can exercise all the functions of  

the Officer-in-charge of the police station.

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9. Per  contra,  it  has  been  submitted  on  behalf  of  the  

respondent  that  criminal  prosecution  was  initiated  on  a  

complaint given by the Secretary of Rajapalayam Town Co-

operative  Housing  Society,  Rajapalayam  relating  to  an  

enquiry in connection with evasion of payment of income tax  

for the house building owned by him.  However, investigation  

has been conducted without prior sanction of the competent  

authority as required under Section 19 of the Act.   In the  

present case, sanction had been given by Commissioner of  

Income  Tax  after  completion  of  investigation.   It  is  

contended that the powers of the High Court under Section  

482 is wide and full enough to interfere in this case where  

the lower court made investigation without proper sanction  

as is mandated under Section 19 of the Act and also where  

investigation is done by a person below the rank of Inspector  

of  Police as mandated under Section 17 of  the Act.   It  is  

further submitted by the respondent that the Court has no  

power to grant permission to police officer below the rank of  

Inspector of Police, without any specific or general order of  

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the Government to that effect for such an officer.   It  was  

further submitted by the counsel that the accused has all  

justification  in  challenging  the  faulty  procedure  in  

investigation.  Since provisions of Section 17 and 19 are held  

mandatory, once protections under the Act are taken away,  

public servants cannot carry out their public duties without  

fear or fervor.

10. While setting aside order of the trial court, the High  

Court  has observed that  reading of  Section 17 of  the Act  

discloses  that  if  the  Officer  not  below  the  rank  of  the  

Inspector of Police is  authorized by the Government,  such  

officer  can investigate the case without permission of  the  

Court.

11. In the instant case, the only question that needs to be  

considered  is  as  to  whether  the  order  passed  by  the  

Magistrate  permitting  the  Sub-Inspector,  CBI,  Chennai  to  

investigate the matter can be sustained in law.   The only  

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ground  taken  by  the  respondent  in  the  quashing  petition  

before High Court is that as per the provisions of Section 17  

of Prevention of Corruption Act, 1988, no officer below the  

rank of Inspector of Police is authorized by the Government  

to  investigate  the  case  without  permission  of  the  Court.  

Further, Section 17 does not confer any power to the Court  

to grant permission to Sub-Inspector of Police to investigate  

the case.  Hence, order passed by the Magistrate permitting  

the Sub-Inspector of Police to investigate the case is without  

jurisdiction and against the mandatory provisions of Section  

17 of the Act as well as Article 21 of the Constitution of India.  

Before  answering  the  question  we  would  like  to  refer  to  

Section 17 of the  Prevention of Corruption Act, 1988 which  

reads as under:-

“17.  Persons  authorised  to  investigate.— Notwithstanding anything contained in the Code of  Criminal  Procedure,  1973  (2  of  1974),  no  police  officer below the rank,— (a) in  the  case  of  the  Delhi  Special  Police  Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta,  Madras  and  Ahmedabad  and  in  any  other  metropolitan  area  notified  as  such  under  sub- section  (1)  of  section  8  of  the  Code  of  Criminal  

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interfering  with  such  investigation  more  so  when  it  was  

already completed.

13. The question raised by the respondent is well answered  

by this Court in a number of decisions rendered in a different  

perspective.  The matter of investigation by an officer not  

authorized  by  law  has  been  held  to  be  irregular.  

Indisputably,  by  the  order  of  the  Magistrate  investigation  

was conducted by Sub-Inspector, CBI who, after completion  

of investigation, submitted charge-sheet.  It was only during  

the trial,  objection was raised by the Respondent that the  

order passed by the Magistrate permitting Sub-Inspector, CBI  

to  investigate  is  without  jurisdiction.   Consequently,  the  

investigation  conducted  by  the  officer  is  vitiated  in  law.  

Curiously enough the respondent has not made out a case  

that  by  reason  of  investigation  conducted  by  the  Sub-

Inspector a serious prejudice and miscarriage of justice has  

been caused.   It is well settled that invalidity of investigation  

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does not vitiate the result unless a miscarriage of justice has  

been caused thereby.   

14. In the case of  Dr. M.C. Sulkunte vs. The State of  

Mysore, AIR 1971 SC 508, the main question raised by the  

appellant in an appeal against the order of conviction was  

that  the  sanction  to  investigate  the  offence  given  by  the  

Magistrate  was  not  proper  in  as  much  as  he  had  not  

recorded any reason as to why he had given permission to  

the Inspector of Police to investigate the offence of criminal  

misconduct  of  obtaining  illegal  gratification.   Considering  

Section 5(A) of the Act Their Lordships observed:-

“15.  Although  laying  the  trap  was  part  of  the  investigation  and  it  had  been  done  by  a  Police  Officer below the rank of a Deputy Superintendent  of Police, cannot on that ground be held that the  sanction was invalid or that the conviction ought  not to be maintained on that ground. It has been  emphasised in a number of decisions of this Court  that to set aside a conviction it must be shown that  there has been miscarriage of justice as a result of  an  irregular  investigation.  The  observations  in  State of M.P. v. Mubarak Ali, 1959 Supp 2 SCR 201  at  pp 210 and 211,  to the effect  that  when the  Magistrate  without  applying  his  mind  only  mechanically  issues  the  order  giving  permission  

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the  investigation  is  tainted  cannot  help  the  appellant before us.”

15. In the case of Muni Lal vs. Delhi Administration, AIR  

1971 SC 1525, this Court was considering the question with  

regard to  the  irregularity   in  investigation for  the offence  

under  the  Prevention  of  Corruption  Act.   Following earlier  

decisions, this Court held:-  

“4.  From  the  above  proposition  it  follows  that  where  cognizance  of  the  case  has  in  fact  been  taken and the case has proceeded to termination,  the invalidity of the preceding investigation will not  vitiate the result unless miscarriage of justice has  been caused thereby and the accused has been  prejudiced.  Assuming  in  favour  of  the  appellant,  that there was an irregularity in the investigation  and that Section 5-A of the Act, was not complied  with in  substance,  the trial  by the Special  Judge  cannot be held to be illegal unless it is shown that  miscarriage of justice has been caused on account  of illegal investigation. The learned counsel for the  appellant has been unable to show us how there  has been any miscarriage of  justice in  this  case  and how the accused has been prejudiced by any  irregular investigation.”

16.  In the case of State of Haryana vs. Bhajan Lal,  AIR  

1992 SC 604, this Court while considering Section 5A of the  

Act, held as under:  

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“125.  It  has  been  ruled  by  this  Court  in  several  decisions that Section 5-A of  the Act is  mandatory  and not directory and the investigation conducted in  violation thereof bears the stamp of illegality but that  illegality committed in the course of an investigation  does not affect the competence and the jurisdiction  of the court for trial and where the cognizance of the  case  has  in  fact  been  taken  and  the  case  is  proceeded  to  termination,  the  invalidity  of  the  preceding  investigation  does  not  vitiate  the  result  unless  miscarriage  of  justice  has  been  caused  thereby.  See  (1)  H.N.  Rishbud  and  Inder  Singh v.  State  of  Delhi (AIR  1955  SC  196);  (2)  Major  E.G.  Barsay v.  State  of  Bombay (1962)  2  SCR 195;  (3)  Munna Lal v.  State of Uttar Pradesh, ((1964) 3 SCR  88; (4) S.N. Bose v. State of Bihar, (1968) 3 SCR 563;  (5) Muni Lal v. Delhi Administration, 1971 (2) SCC 48,  6) Khandu Sonu Dhobi v. State of Maharashtra, 1972  (3) SCR 510. However, in Rishbud case and Muni Lal  case, it has been ruled that if any breach of the said  mandatory  proviso  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 as may be called for to rectify the illegality  and cure the defects in the investigation.”

17. In the case of A.C. Sharma vs. Delhi Admn., (1973) 1  

SCC 726, provisions of Section 5A were again considered by  

this Court and held as under:  

“15.  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  

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considered by itself to affect the legality of the trial by  an  otherwise  competent  court  of  the  offence  so  investigated. In H.N. Rishabud and Inder Singh v. State  of Delhi (supra) 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  of  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 considers appropriate  with reference to the requirements of Section 5-A of  the Prevention of Corruption Act, 1952. This decision  was followed in  Munna Lal v.  State of U.P where the  decision in  State of Madhya Pradesh v.  Mubarak Ali,   AIR 1959 SC 707 was distinguished.  The same view  was  taken  in  the  State  of  Andhra  Pradesh v.  M.  Venugopal,  1964  (3)  SCR 742 and more  recently  in  Khandu Sonu Dhobi v.  State of Maharashtra (supra).  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  decisions  just  cited  those  observations cannot be considered good law.”

18. As noticed, on the basis of the permission accorded by  

the Magistrate,  the Sub-Inspector,  CBI proceeded with the  

investigation and finally submitted charge-sheet.  It was only  

after that, said order of Magistrate was questioned by the  

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Respondent by filing a criminal petition in the High Court.  

The learned Single Judge, appreciating the submission made  

by  the  learned  counsel,  held  that  since  the  special  court  

without  assigning  any  reason  permitted  Sub-Inspector  of  

Police  to  investigate  the  matter,  the  order  is  not  in  

accordance  with  law  and  disposed  of  the  petition  giving  

liberty to the prosecution to file a fresh petition before the  

court seeking permission to get the matter investigated by a  

competent officer.

19.  As  discussed  earlier,  the  High  Court  erred  in  

overlooking the gist of order of Special Judge permitting the  

Sub-Inspector to investigate.  Further, having regard to the  

fact that no case of prejudice or miscarriage of justice by  

reason  of  investigation  by  the  Sub-Inspector  of  Police  is  

made out, the order of the High Court cannot be sustained in  

law.   For  the  reasons  stated  above,  these  appeals  are  

allowed and the order passed by the High Court is set aside.  

The concerned Court shall now act with utmost expedition.

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…………………………….J. [ M.Y. Eqbal ]  

…………………………….J [Shiva Kirti Singh]

New Delhi December 01, 2014

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