State of Jammu & Kashmir vs Suraj Parkash and Others

J.P. Singh, J.—State of Jammu and Kashmir invokes criminal Revisional jurisdiction of this Court for setting aside 2nd Additional Sessions

Judge's order dated September, 18,2003, refusing to take cognizance of the Police Report u/s 173 of the Code of Criminal procedure filed by

Police Station, Crime Branch, Jammu, on the basis of the investigation carried out in F.I.R. No. 10/2000 registered by it Under Sections

419/420/467/468/471 and 120B RPC, holding the registration of F.I.R., and investigation incompetent and beyond the power delegated to the

Crime Branch Police Station under SRO 133, relying on a Division Bench Judgment of this Court in Criminal Revision Nos. 78/1998 and

10/1999.

Sh. Abdul Hamid Qazi, learned Additional Advocate General, while projecting non-applicability of the Division Bench judgment to the case,

added that cognizance could not be refused on the ground of any alleged irregularity or for that matter even incompetence of the investigation.

Union of India (UOI) Vs. Prakash P. Hinduja and Another, .

Sh. J.P. Gandhi, learned Counsel for the accused respondents, supports the impugned judgment by relying heavily on the Division Bench

judgment. He submits that neither the Crime Branch Police Station possessed any jurisdiction to register any F.I.R., for the infraction of offences

falling outside the purview of the SRO nor could the Chief Judicial Magistrate invest any such power in the police station to register an F.I.R. and

present police report u/s 173 of the Code of Criminal Procedure. He adds that investigation being without jurisdiction and unauthorized cannot be

taken cognizance of by the Court.

Learned Counsel for the parties were, however, not at variance as to the existence of SRO 202 of 1999 at the time when F.I.R. No. 10/2000

came to be registered by Police Station Crime Branch, Jammu. This SRO reads, thus:

GOVERNMENT OF JAMMU AND KASHMIR HOME

cDEPARTMENT

Notification

Srinagar, the 3rd June, 1999.

SRO-202. - In exercise of the powers conferred by Clause (o) of Sub-section (1) of Section 4 of the Code of Criminal Procedure, Samvat 1989

(Act No. XXIII of 1989) and in supersession of notification SRO-133 dated 2-4-1991, the Government hereby declare the Officer of Crime

Branch, Kashmir and the office of Crime branch, Jammu to be the Police Stations within their respective jurisdiction in their divisions for purposes

of registration and investigation of.-

(i) Offences as indicated in the Annexure annexed to this notification on the orders of the Head of the Crime Branch; and

(ii) Cases which may be referred by the Government or Director General of Police from time to time. By order of the Government of Jammu and

Kashmir

Sd/-

Principal Secretary to Government

Home Department.

Annexure to SRO No. 202 DATED O3-06-1999.

Note forgery cases.

Cases of counterfeit coining.

Cases of professional poisoning.

Theft of Government arms and ammunition and illicit trade in arms.

Frauds by means of advertisement, bogus funds, and companies personating public servants swindling etc.

Cases of dacoity or house breaking of a peculiar nature which indicate the work of an adept gang not previously noticed or accounted for by

local police.

Cases of fraud, theft or cheating of a peculiar nature which effect more than one district.

Important theft of currency notes or important defalcation of public money.

Cases of smuggling of opium, cocaine etc. 10.

Cases of bringing fraudulent suits.

Gang cases.

Important conspiracy cases whose ramification extend to several districts.

Pornography.

any serious crime which appears to have a political motive, including all offences connected with arms and ammunition explosive which

suspected to be of political nature.

Explosive Act, 1984 (Act No. IV of 1984) and Explosive Substances Act, 1908 (Act No. III, VI of 1908).

Cinematography Act of 1952/Video Piracy read with the Copy of Right (Amendment Act), 1984.

Public Gambling Act (Svt. 1977).

Narcotic Drugs and Psychotropic Substance Act, 1985.

Suppression of Immoral Traffic in Women and Girls Act, 1956.

Drugs Act, (XX) 2000.

Indian Arms Act, 1959.

Dowry Restraint Act, 1962.

Cognizable Offences committed by or relating to public servant.

(Sd/-)

Addl. Secretary to Government

Home Department.

Considering the submissions, facts on the records and law on the subject, I would like to resolve the issues on the basis of discussion appearing

hereafter.

Cognizance of offence/s in cognizable offences precedes INVESTIGATION under CHAPTER XIV of Part-V of the Code of Criminal

Procedure, Svt, 1989 and follows COGNIZANCE u/s 190 in CHAPTER XV-Part-VI of the Code.

Facts, appearing from the investigation report of Any Police Officer, and not the jurisdiction to investigate, would empower a Magistrate u/s 190

of the Code to decide as to whether or not cognizance is warranted on the facts so investigated.

Once a Magistrate decides to take cognizance on the basis of facts emanating from a police report; saying that facts have emanated from an

unauthorized investigation, should not debar the Magistrate from taking cognizance of the offence/s, for, such a course is neither contemplated by

the Scheme under nor permissible by, the Code of Criminal Procedure.

Cognizance, as contemplated by Section 190(b) of the Code, may be taken upon the written report of the facts made by ANY POLICE

OFFICER. It, in other words, would mean that such police officer need not necessarily be an officer in-charge of a police station within whose

jurisdiction the offence has taken place. Such police officer may be the one who is authorized by a Magistrate u/s 156(3) of the Code to register an

F.I.R., and investigate any offence.

Section 156(2) of the Code, which is reproduced hereunder, goes a long way in establishing that empowerment or otherwise of the police

officer is not open to challenge at any stage. Section 156(2) reads, thus:

No proceeding of 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.

Any defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or

trial.

Cognizance on even an invalid police report, cannot, thus, be said to be nullity, in view of Sections 530 and 537 of the Code.

I am, thus, of the opinion that cognizance, once taken cannot be reversed on the police report found vitiated by the breach of any statutory

provision, notification or order, which does not specifically vest authority in a police officer to investigate any offence/s particularly when the F.I.R.,

is registered and investigation carried out under the orders of a Magistrate, Chief Judicial Magistrate in the present case.

It would be advantageous to quote relevant portion of paragraph No. 1 from AIR 1944 73 (Privy Council) , which is reproduced hereunder:

I....The only question at issue was whether the arrest was lawful or not and Lord Chancellor Halsbury in delivering the judgment of their Lordships

expressly stated that they had not anything to do with the consequences of the arrest being lawful or otherwise. In the course of the argument the

Lord Chancellor incidentally observed, as appears from a record in the possession of the India Office:

It may well be that the procedure taken was irregular and improper and brought a person wrongfully within the jurisdiction, but if he is there and if

he has committed an offence, whatever else may be said about it, it is no answer to the offence committed within the jurisdiction that he has been

brought irregularly within the jurisdiction. That has been decided more than once in our Courts. There was a case where a man was tried for

murder in which it was clear that he was not properly arrested in the jurisdiction where he was found, but nevertheless he was tried convicted and

executed.

This judgment of the Privy Council has been consistently followed by Hon'ble Supreme Court of India in number of judgments, latest being

'State of M.P v. Ramesh C. Sharma' reported as (2005) 12 SCC 628. Paragraph No. 5 of the judgment reads, thus:

Learned Counsel for the State contended that the impugned order of the High Court is contrary to the settled principle of law enunciated by this

Court in a catena of decisions and it is liable to be set aside. Avoiding multiplicity, we may refer to a decision of this Court rendered in the case of

State of Madhya Pradesh and Others Vs. Shri Ram Singh, . This Court in Ram Singh after noticing the various decisions of this Court, inter alia,

held that a defect or illegality in the investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance

or trial. In a recent decision in the case of Union of India (UOI) Vs. Prakash P. Hinduja and Another, in which one of us(G.P. Mathur, J.) is the

author of the judgment after noticing the various decisions of this Court pointed out in paras 20 and 21 of the judgment as under: (SCC pp. 209-

10) ""20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or

during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by

the officer in charge of the police station in court u/s 173(2) CrPC, this field being exclusively reserved for the investigating agency.

An incidental question as to what will be the result of any error or illegality in investigation on trial of the accused before the court may also be

examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer below the rank of a Deputy Superintendent of

Police shall investigate any offence punishable u/s 161, Section 165 and Section 165A IPC or u/s 5 of the said Act without the order of a

Magistrate of the First Class. In H.N. Rishbud and Inder Singh Vs. The State of Delhi, the investigation was entirely completed by an officer of the

rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special

Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention

of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the

judgment of the High Court was dismissed and the following principle was laid down AIR 2004 9)

The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows

cognizance and cognizance is preceded by investigation. This is undoubtedly the basis scheme of the Code in respect of cognizable cases. But it

does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of

the breach of a mandatory provision regulating the competence or procedure of the court as regards cognizance or trial. It is only with reference to

such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.

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 of the Code of Criminal Procedure 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 of the Code of Criminal Procedure 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 once 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

Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only

in the nature of error in a proceedings antecedent to the trial.

The Court after referring to AIR 1944 73 (Privy Council) and Lumbhardar Zutshi v. R. AIR 1950 PC 26 held that if cognizance is in fact

taken on a police report initiated 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 and that an

illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. This being the legal

position, even assuming for the sake of argument that CBI committed an error or irregularity in submitting the charge-sheet without approval of

CVC, the cognizance taken by the learned Single Judge on the basis of such a charge-sheet could not be set aside nor could further proceedings in

pursuance thereof be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the

offence in quashing further proceedings of the case.

Sh. J.P. Gandhi, learned Counsel for the respondents, placed reliance on the Division Bench judgment delivered in Cr. Rev. No. 78/1998 and

Cr. Rev. No. 10/1999, to urge that in view of the specific finding of the Division Bench that cognizance cannot be taken by the Crime Branch

either in registering a case or to go ahead with investigation in respect of offence other than those falling in annexure to SRO 202 of 1999. He

further submitted that the order of the learned Additional Sessions Judge is in accordance with the Division Bench judgment and as such does not

need any correction as urged by the State counsel.

Article 141 of the Constitution of India provides that:

Law declared by Supreme Court shall be binding on all courts within the territory of India.

Law declared by Supreme Court to the effect that cognizance taken, and trial held by the Criminal Court, cannot be questioned on the ground

that the investigation was defective or illegal, is binding on all Courts under Article 141 of the Constitution of India. Division Bench judgment of this

Court in Cr. Rev. No. 78/1998 and Cr.Rev No. 10/1999, if it gives any such impression of holding otherwise than the law settled by Supreme

Court of India, is to be treated as 'per incuriam', in view of the law declared by Supreme Court of India.

This apart, the registration of the case by the Crime Branch against the respondents has been done under the orders of the Chief Judicial

Magistrate, Jammu, and no fault can be found therewith in view of the provisions of Section 156 of the Code of Criminal Procedure. Even the

Division Bench judgment of this Court, supports this view when it directs that investigation be treated to have been ordered under the Court order.

Learned 2nd Additional Sessions Judge, Jammu, has, thus, erred in omitting to follow the law declared by Hon'ble Supreme Court of India laid

down as early as in H.N. Rishbud and Inder Singh Vs. The State of Delhi, and subsequently in various judgments, latest being Ramesh C.

Sharma's case (supra).

`

Learned Sessions Judge has, thus, erred in holding the trial impermissible. His order, impugned in this petition, is, accordingly set aside.

Looking to the delay, which has occasioned because of the litigation, it is directed that learned Additional Sessions Judge, Jammu, shall take up

the case on priority by fixing at least two sessions in a month and shall ensure completion of trial in accordance with law within a period of eighteen

months.

Counsel for the parties are directed to appear before the learned 2nd Additional District & Sessions Judge, Jammu, on 03.04.2006

This petition is, accordingly, allowed.