The State Vs. Madan Lal - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - was -what is the effect of non-compliance with the proviso to section 3, prevention of corruption act, 1947?'.their opinion was that the failure to comply with the proviso to section 3 was an irregularity which fell within sub-section (2) of section 156, criminal p. ' it was accordingly held that on account of the illegality in the investigation the entire proceedings based on the charge-sheet reported by the officer not competent to investigate must fail and it was ordered that the proceedings should be quashed.orderfalshaw, j.1. this is a revision petition by the state against an order of a special judge at hissar quashing proceedings against madan lal respondent against whom a case had been instituted under section 5 (2), prevention of corruption act, 1947.2. the case against the respondent was that he had embezzled certain money received by him in his official capacity as an operator at the police radio station at hissar. in the early stages of the case, before any evidence had been recorded, preliminary objections were raised on his behalf that the case could not proceed against him, firstly because the proper sanction for his prosecution under the act had not been obtained, and secondly that the investigation had not been carried out by an officer of the rank of a deputy superintendent of police. the learned special judge, without investigating the question of proper sanction, has found that the case could not proceed against him because the investigation had not been carried out in accordance with the provisions of section 5 (4), prevention of corruption act which reads:'notwithstanding anything contained in the code of criminal procedure, 1898, a police officer below the rank of deputy superintendent of police shall not investigate any offence punishable under sub-section (2) without the order of a magistrate of the first class or make any arrest therefor without a warrant.'it is admitted in the present case that the investigation was carried out by an officer or the rank of sub-inspector without any order having been obtained from a first class magistrate. there is thus no doubt that the alleged offence committed by the respondent was not investigated in accordance with the provisions of the act under which he was prosecuted, and the question which arises is therefore whether this constitutes a bar to proceeding any further with the case. on this matter conflicting opinions have been expressed by the high courts of allahabad and calcutta. in both the decisions cited the cases were under section 161, penal code, read with the prevention of corruption act, which also makes provision regarding such offences, but the relevant words of the section which makes an offence under section 161, penal code, cognizable notwithstanding the provisions of the criminal procedure code, are almost identical with the words of section 5 clause (4).in the allahabad case -- 'promod chandra v. rex', air 1951 'all 546 (a), a public servant had been convicted under section 161, penal code, and one of the questions which was referred to a division bench consisting of mootham and wanchoo jj. was -- 'what is the effect of non-compliance with the proviso to section 3, prevention of corruption act, 1947?'. their opinion was that the failure to comply with the proviso to section 3 was an irregularity which fell within sub-section (2) of section 156, criminal p. c.. and accordingly the proceedings of the investigating officer could not be called in question. the reasoning of the learned judges was that the proviso to section 3 of the act was in effect merely a proviso to sub-section (1) of section 156 of the code and therefore it was governed by the provisions of sub-section (2) according to which 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.on the other hand in the calcutta case --'sudhir kumar v. the state', air.19s3 cal 226 (b), the petitioner had moved the high court to quash the proceedings against him in a case in which he was accused under section 161, penal code, on the ground that the investigation had been carried out only by a sub-inspector without any order from a first class magistrate. in these circumstances k. c. pas gupta and debabrata mookerjee jj. took a view exactly contrary to that of the allahabad high court. the judgment was delivered by k. c. das gupta j. who observed :'the effect of the proviso is that section 156, criminal p. c. is made inapplicable to investigation of an offence under section 161, penal code. what section 156, criminal p. c. provides is that any officer in charge of a police station may without the order of a magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of chapter 15 relating to the place of inquiry or trial. sub-section (2) of this section provides that 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. it was contended by mr. banerjee on behalf of the state on the authority of a decision of the allahabad high court in -- 'air 1951 all 548 (a)' that this investigation by a sub-inspector in violation of the provisions in the proviso that a police officer below the rank of the deputy superintendent of police shall not investigate any such offence without the order of a magistrate of the first class is merely an irregularity falling within section 156 (2), criminal p. c.' then follows the reasoning for the decision of the learned judge of the allahabad high court which i have set out above, and judgment proceeds :'it is difficult to see however how the fact that the proviso in section 3 of act 2 of 1947 operating as the limitation to the powers of investigation given to police officers in charge of police stations can attract the provision of sub-section (2) of section 156, criminal p. c. certainly that would have been the position if the proviso to section 3 of act 2 of 1947 had in fact been incorporated by the legislature in section 156, criminal p. c. that was not done and instead very clear words were used by the legislature to ensure that such offence should not be investigated by any police officer below the rank of the deputy superintendent of police, without the order of a magistrate 1st class. in my opinion we are not treating the legislature seriously if we are to ignore such words and take the view that even though a command of this nature is disobeyed, it is a mere irregularity.'it was accordingly held that on account of the illegality in the investigation the entire proceedings based on the charge-sheet reported by the officer not competent to investigate must fail and it was ordered that the proceedings should be quashed.3. in my opinion there can be no doubt that the view of the calcutta court is correct and i accordingly hold that the case could not proceed any further against the respondent as it stood when the objection was taken by him in the court of the learned special judge. i do not, however, consider that the learned special judge was competent to pass an order quashing the proceedings in the case in the sense of completely putting an end to them, nor do i think that it is even necessary for this court, which can pass such an order, to do so.in my opinion it will still be open to the prosecution to institute the case against the respondent afresh after complying with the provisions of section 5(4), i.e. either by having the case re-investigated by a deputy superintendent of police or re-investigated by an officer of a lesser rank after obtaining an order of a magistrate of the first class. it will, however, be necessary to submit a fresh charge-sheet, and the proceedings cannot certainly continue on the present one. i am not expressing any opinion about the other objection raised, namely the validity of the sanction, which is a matter still to be investigated by the learned special judge. the revision petition of the state is accordingly accepted to the above limited extent.

Judgment:
ORDER

Falshaw, J.

1. This is a revision petition by the State against an order of a Special Judge at Hissar quashing proceedings against Madan Lal respondent against whom a case had been instituted under Section 5 (2), Prevention of Corruption Act, 1947.

2. The case against the respondent was that he had embezzled certain money received by him in his official capacity as an Operator at the Police Radio Station at Hissar. In the early stages of the case, before any evidence had been recorded, preliminary objections were raised on his behalf that the case could not proceed against him, firstly because the proper sanction for his prosecution under the Act had not been obtained, and secondly that the investigation had not been carried out by an officer of the rank of a Deputy Superintendent of Police. The learned Special Judge, without investigating the question of proper sanction, has found that the case could not proceed against him because the investigation had not been carried out in accordance with the provisions of Section 5 (4), Prevention of Corruption Act which reads:

'Notwithstanding anything contained in the Code of Criminal procedure, 1898, a police officer below the rank of Deputy Superintendent of Police shall not investigate any offence punishable under Sub-section (2) without the order of a Magistrate of the first class or make any arrest therefor without a warrant.'

It is admitted in the present case that the investigation was carried out by an officer or the rank of Sub-Inspector without any order having been obtained from a first class Magistrate. There is thus no doubt that the alleged offence committed by the respondent was not investigated in accordance with the provisions of the Act under which he was prosecuted, and the question which arises is therefore whether this constitutes a bar to proceeding any further with the case. On this matter conflicting opinions have been expressed by the High Courts of Allahabad and Calcutta. In both the decisions cited the cases were under Section 161, Penal Code, read with the Prevention of Corruption Act, which also makes provision regarding such offences, but the relevant words of the section which makes an offence under Section 161, Penal Code, cognizable notwithstanding the provisions of the Criminal Procedure Code, are almost identical with the words of Section 5 Clause (4).

In the Allahabad case -- 'Promod Chandra v. Rex', AIR 1951 'All 546 (A), a public servant had been convicted under Section 161, Penal Code, and one of the questions which was referred to a Division Bench consisting of Mootham and Wanchoo JJ. was -- 'what is the effect of non-compliance with the proviso to Section 3, Prevention of Corruption Act, 1947?'. Their opinion was that the failure to comply with the proviso to Section 3 was an irregularity which fell within Sub-section (2) of Section 156, Criminal P. C.. and accordingly the proceedings of the investigating officer could not be called in question. The reasoning of the learned Judges was that the proviso to Section 3 of the Act was in effect merely a proviso to Sub-section (1) of Section 156 of the Code and therefore it was governed by the provisions of Sub-section (2) according to which 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.

On the other hand in the Calcutta case --'Sudhir Kumar v. The State', AIR.19S3 Cal 226 (B), the petitioner had moved the High Court to quash the proceedings against him in a case in which he was accused under Section 161, Penal code, on the ground that the investigation had been carried out only by a Sub-Inspector without any order from a first class Magistrate. In these circumstances K. C. pas Gupta and Debabrata Mookerjee JJ. took a view exactly contrary to that of the Allahabad High Court. The judgment was delivered by K. C. Das Gupta J. who observed :

'The effect of the proviso is that Section 156, Criminal P. C. is made inapplicable to investigation of an offence under Section 161, Penal Code. What Section 156, Criminal P. C. provides is that any officer in charge of a police station may without the order of a Magistrate, investigate any cognizable case which a Court having Jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter 15 relating to the place of inquiry or trial. Sub-section (2) of this section provides that 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.

It was contended by Mr. Banerjee on behalf of the State on the authority of a decision of the Allahabad High Court in -- 'AIR 1951 All 548 (A)' that this investigation by a Sub-Inspector in violation of the provisions in the proviso that a police officer below the rank of the Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class is merely an irregularity falling within Section 156 (2), Criminal P. C.'

Then follows the reasoning for the decision of the learned Judge of the Allahabad High Court which I have set out above, and Judgment proceeds :

'It is difficult to see however how the fact that the proviso in Section 3 of Act 2 of 1947 operating as the limitation to the powers of investigation given to police officers in charge of police stations can attract the provision of Sub-section (2) of Section 156, Criminal P. C. Certainly that would have been the position If the proviso to Section 3 of Act 2 of 1947 had in fact been incorporated by the Legislature in Section 156, Criminal P. C. That was not done and instead very clear words were used by the Legislature to ensure that such offence should not be investigated by any police officer below the rank of the Deputy Superintendent of Police, without the order of a Magistrate 1st class. In my opinion we are not treating the Legislature seriously if we are to ignore such words and take the view that even though a command of this nature is disobeyed, it is a mere irregularity.'

It was accordingly held that on account of the illegality in the investigation the entire proceedings based on the charge-sheet reported by the officer not competent to investigate must fail and it was ordered that the proceedings should be quashed.

3. In my opinion there can be no doubt that the view of the Calcutta Court is correct and I accordingly hold that the case could not proceed any further against the respondent as it stood when the objection was taken by him in the Court of the learned Special Judge. I do not, however, consider that the learned Special Judge was competent to pass an order quashing the proceedings in the case in the sense of completely putting an end to them, nor do I think that it is even necessary for this Court, which can pass such an order, to do so.

In my opinion it will still be open to the prosecution to institute the case against the respondent afresh after complying with the provisions of Section 5(4), i.e. either by having the case re-investigated by a Deputy Superintendent of Police or re-investigated by an officer of a lesser rank after obtaining an order of a Magistrate of the first class. It will, however, be necessary to submit a fresh charge-sheet, and the proceedings cannot certainly continue on the present one. I am not expressing any opinion about the other objection raised, namely the validity of the sanction, which is a matter still to be investigated by the learned Special Judge. The revision petition of the State is accordingly accepted to the above limited extent.