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Judgment
Maheswaran, J.—The vexed question that of confronts the Criminal Court, namely, to what extent the trial, that follows as investigation by a
police officer in a non-cognizable offence without obtaining the orders of a Magistrate for such investigation is vitiated, is the subject-matter of this
revision.
The first respondent-accused in this revision was convicted of an offence punishable under Ss. 467 and 471,1.P.C. and was sentenced to
rigorous imprisonment for one year and to a fine of Rs; 10/- under each of the charges by the learned Judicial First Class Magistratety No. II,
Tirunelveli. The accused was a wireman in the electricity department in Madurai Mills, Vikramasingapuram. The Mill authorities were running a
canteen and were selling printed coupons used in the canteen through the Co-operative Stores to the workers. It was found that P.W. 2 was also
selling such coupons. The coupons printed by the company are available only in the stores and in the canteen. The coupons which P.W. 2 was
selling were given to him by P.W. 3, Esakki, a co-worker. There was some dispute between P.Ws. 2 and 3 in regard to the sale of these coupons
and P.W. 2 reported the matter to P.W.I, a Labour Officer. He then gave a statement, Ex. PI. P.W.I, the Labour Officer attached to the Mills sent
for P.W. 3 and P.W. 3 produced the coupons and stated that the accused gave him the coupons. The accused was sent for by P.W; I, and the
accused confessed that he had printed the coupons at Srivilliputhur and was selling them. He also gave a statement, Exs P 3. P.W. 1 then gave a
complaint, Ex. P 4 to the Sub-Inspector of Police, Vikramasingapuram and the law was set is motion.
The learned Magistrate convicted the accused as stated above. In appeal, the learned Sessions Judge without considering in detail, the points
raised, disposed of the appeal in a cavalier manner and remitted the matter for fresh disposal by the trial. Court. P.W.9, the Assistant Welfare
Officer, Madurai Mills, Aruppukottai, has filed this revision against the order of remand.
I must at once point out that the learned Sessions Judge has not entered into the merits of this case, but has remanded the matter as in his view
there has been an illegality in investigation. The contention of the accused before the appellate Judge was that S. 155, Crl P.C prohibits a police
officer from investigating a non-cognizable offence unless authorised by an order of a competent Magistrate and if the police investigates such
offence without a valid order, they act without jurisdiction and a report submitted on such investigation is not a report upon which the Magistrate
can validly take cognizance of the offence under S. 190, Crl. P.C and the entire trial is vitiated. The offences alleged to have been committed are
under Ss. 467 and 471 I.P.C., which are non-cognizable. It is pointed out that investigation of such offences without the order of the Magistrate is
not a mere irregularity, but an Urgently which vitiates the trial itself. It is admitted by P.W; 13, the Investigating Officer that no permission was
obtained from the Magistrate to investigate into the offences. The question is whether such an investigation of non-cognizable offence without the
authorization or an order of the competent Magistrate nullifies the cognizance or the trial based thereon. My attention was invited to a ruling in
Abdul Halim and Another Vs. State of West Bengal, . In that case, Mitter, J. took the view that the provisions of S. 155(2); Crl P.C. cannot be
rendered nugatory by regarding a police report in a non-cognizable case where there has been no previous order under sub-section (2) of S. 155
Crl. P.C. as a valid report under S. 190(1)(b), Crl. P.C. and that the Magistrate could not take cognizance of a non-cognizable case as a result of
an investigation by the police without an appropriate order having been obtained from a Magistrate, That was a case where a certain person
produced a sale certificate in respect of certain disputed properties before an Assistant Settlement Officer. The opposite party produced a certified
copy of the game document which was in certain respects at variance with the one filed by that person. The Settlement Officer referred the matter
to the police without any previous enquiry. There was no complaint by him at required under Ss. 195 and 476, Crl. P.C. The police held an
investigation and submitted a charge-sheet under Ss. 467, 474 and 471 of the Indian Penal Code. On receipt of the charge-sheet the learned
Magistrate took cognizance of the case, The learned Magistrate who tried the case held that a charge-sheet could be regarded as a report by the
police officer and therefore he had the power to take cognizance of the case. It is under those circumstances that the above observation was made
by a single Judge of the Calcutta High Court.
The learned counsel for the revision petitioner referred to Public Prosecutor v. Ratnavelu Chetty AIR 1926 Mad 865. (F.B). The learned
Judges of the Full Bench observed:
S. 190(l)(b) authorizes certain Magistrates to take cognizance of any offence upon a report in writing of facts which constitute such offence made
by any police officer and S. 200(aa) provides that where a public servant acting or purporting to act in the discharge of his official duties makes a
complaint of an offence, nothing shall require the Magistrate to examine him before taking cognizance of the offence."" That ruling makes it clear that
the report of police officer mentioned in S. 190(1)(b) of the Code of Criminal Procedure is not confined to a report of a cognizable offence, but it
includes even the police report in a non-cognizable case.
In H.N. Rishbud and Inder Singh Vs. The State of Delhi, the Supreme Court held that if cognizance is in fact taken on police report in breach of
a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to
have brought about a miscarriage of justice. It was further held that an illegality committed in the course of an investigation does not affect the
competence and the jurisdiction of the court for trial and where cognizance of the case has in fast 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. This
observation of the Supreme Court is a complete answer to the contention of the counsel for the respondent that the trial following an investigation
by a police officer in a non-cognizable offence without obtaining the orders of the Magistrate for such investigation would vitiate the entire trial and
that it is not an irregularity. But the learned counsel for the respondent-accused placed reliance on Subodh Singh Modak Vs. The State, to show
that non-conformance with the procedure established by law vitiates the ultimate order. But that was a case ""which has not proceeded to
termination"", and the objection as regards the irregularity or illegality was taken at the earlier stage. Therefore, that case is not of any assistance to
the respondent, for, the objection was taken at the earlier stage before the trial concluded. Such, however, is not the case here. The trial was
allowed to proceed and it terminated. It is only at the time of arguments before the trial Magistrate that this objection taken and in those
circumstances, the ratio of the decision in Rishbud''s case would apply.
The case in State Vs. Munafkha Lukmankha Musalaman, is one arising under the Essential Commodities Act. The learned Judge was of the
opinion that the absence of any provision for investigation resulted in every investigation of an offence under the Essential Commodities Act being
made under Chapter XIV of the Code of Criminal Procedure. The learned Judge held that the Magistrate was justified in following the procedure
provided for in S. 251-A of the Criminal Procedure Code.
Tarapada Sarkar Vs. The State, was a case where the police while investigating a cognizable offence became aware of a non-cognizable
offence punishable under S. 506 of the Indian Penal Code and the police investigated into that offence also without obtaining an order from a
Magistrate for the investigation of the non-cognizable case and the police, after investigation, submitted a charge-sheet in the cognizable case and
submitted a report styled as a complaint for the prosecution of the accused in respect of the non-cognizable offence. It was under those
circumstances the learned Judge held that the trial should have been held under the old procedure contained in S. 252, Crl. P.C. and not under the
procedure contained in S. 251-A of the Code.
In Safdar Hussain v. Abdul Rahim 1966 L.W. (Crl.) 43 Anantanarayanan, J., (as he then was) was of the view that there, on the same set of
facts, both a cognizable and a non-cognizable offence would appear to be involved, the police investigating the cognizable offence can also
investigate the non-cognizable offence and take action thereon. The two cases referred to above deal with the investigation in respect of both
cognizable and non-cognizable offences. Here, in this case, it is not disputed that the offences with which the respondent-accused was charged
were non-cognizable offence.
Pravin Chandra Mody Vs. State of Andhra Pradesh, is also a case arising under S. 7 of the Essential Commodities Act, 1955, for
contravention of clauses (4) and (5) of the Iron and Steel Control Order. The prosecution was commenced by the Inspector of Police, Crime
Branch, C.I.D., Hyderabad. A charge-sheet under S. 173 of the Code of Criminal Procedure in respect of the offence of cheating, which was
intended to serve also as a report in writing of a public servant as required by S. 11 of the Essential Commodities Act, 1955 was filed. The learned
Magistrate framed a charge against the accused therein. Two objections were taken before the learned Magistrate, one relating to question of fact
with which we are not concerned and the second objection was that as the police have filed a report under S. 11 of the Essential Commodities
Act, a trial of the offence under S. 7 could not be under S. 251-A, but under S. 252 of the Code of Criminal Procedure. Their Lordships of the
Supreme Court discussed as to whether a report submitted by a police officer in a non-cognizable case is to be treated as ""other than a police
report"". That case is to the effect that a report of the police officer even though it may be in a non-cognizable offence, has to be treated as a police
report within the meaning of S. 251-A and 252, Crl. P.C. and the proceedings of the Magistrate; cannot but be under S. 251-A.
In H.N. Rishbud and Inder Singh Vs. The State of Delhi, their Lordships of the Supreme Court pointed out:
A defect or illegality in Investigation, however serious, has no direct bearing on the competence on the procedure relating to cognizance or trial.
No doubt a police report which results from an investigation is provided in S.100. Crl. 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. S. 100, Crl. P.C. is
one out of a group of sections under the heading-conditions ''requisite for initiation of proceeding''. The language of this section is in marked
contrast with that of the other sections of the group under the same heading, i.e. Ss.193 and 195 to 199.
Their Lordships further pointed out:
Such an invalid report may still fall either under clause (a) or (b) of S. 190(1), (whether it is the one Off the other we need not pause to consider)
and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such at situation S. 537, Crl. P.C. is
attracted.
I have already pointed out to the observation of His Lordship Jagannadhadas delivering the judgment of the Supreme Court in the above case. His
Lordship was of the opinion that where the cognizance of the case has been taken and the case has proceeded to termination, the in validity of the
precedent investigation does not vitiate the result unless miscarriage of justice has been caused thereby. The question is whether there has been
such a miscarriage of justice in this case. The test of miscarriage has been made quite clear by the Supreme Court, namely that no objection was
taken to the illegality in the earlier stage. In the instant case the trial has proceeded to termination. The objection was not taken at the earlier stage.
Objection was taken only at the time of arguments. The learned counsel for the respondent-accused is unable to show as to how there was any
miscarriage of justice on account of the illegal investigation. There must be sufficient nexus either established or probabilised between the conviction
and the irregularity in the investigation. Such a nexus was not made out in this case. In dealing with the procedures enacted under S. 251-A and
252 of the Code of Criminal Procedure, Krisbnan, J. of Indore Bench observed in Lakshminarayan v. State:
In principal there It be difference between the two procedures-the practical difference is that in the one case the material collected by the police
during investigation is before the Magistrate, and in the other he had himself to record it after the appearance of the accused. Once the charge is
framed and the trial has begun, the face of the accused person having (or not having) had a chance of cross-examining before charge is of no
significance.
It is therefore clear that the accused has not been prejudiced by the procedure adopted by the learned Magistrate. The learned appellate Judge
was therefore wrong, in holding that there was prejudice and remitting the matter to the trial Court for trial afresh. The revision is allowed, the order
of the appellate Judge remitting the matter to the trial Court for fresh disposal is set aside and the appeal is remitted to the Sessions Judge,
Tirunelveli Division for disposing it of on merits, in accordance with law.