Parmod Kumar Sharma vs State (Cbi)
1999 Latest Caselaw 1007 Del

ORDER

K.S. Gupta, J.

1. This petition under Section 482 Cr. P.C. has been filed by the petitioner-accused for quashing the order dated 15th January, 1994 by which the application dated 9th March, 1990 seeking discharge was dismissed and also the charges framed under Sections 7 & 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988) by a Special Judge.

2. Charge-sheet against the petitioner was filed by the CBI, inter alia, alleging that Sita Ram Dubey made a complaint in writing to SP/CBI on 28th September, 1988 stating that he is running fair price shop No. 6612 allotted by Delhi Administration at Netaji Nagar Market, New Delhi and the ratio to that shop is supplied by FCI. On 19th September, 1988 he deposited a bank draft for Rs.18,200/- with FCI but the goods were not supplied to him by 24th September, 1988. On 24th September, 1988, Sh. Y.P. Vij, F.S.O., Sh. S.K. Walia, Inspector and Sh. R. Tiwari, Inspector in Enforcement Repartment came to his shop and took away the records of the shop with direction to him to attend their office at Underhill Road on Tuesday morning. On attending the office on that date, said officials told that the goods sent from the godown of FCI on 23rd September, 1988 were not entered in the stock register and those had been seized at Dakshinpuri. They further told him that for that lapse, his shop could be cancelled and he be prosecuted. They demanded Rs.15,000/- to save the cancellation of shop and prosecution. On 27th September, 1988, he apprised Pramod Kumar Sharma/Petitioner, then posted as area rationing Inspector, about the said facts and he too threatened him to get the shop cancelled. He demanded Rs. 5,000/- to show the delivery of goods in back date. Petitioner further told him to pay Rs. 4,000/- by 29th afternoon.

3. It is also alleged that during the course of investigation, a trap was laid on 29th September, 1988 by associating two independent witnesses, namely, M.S.Mehton and C.M. Uppal, both from United India Insurance Co. Ltd. Petitioner demanded and accepted Rs. 4,000/- from said Sita Ram Dubey in the presence of the members of the trap party. After accepting the tainted money, he put it in the dickey of his scooter No. DBJ-7177 and from there the same was recovered. Left and right hands of the petitioner were dipped in two colourless solution of Sodium Carbonate which turned pink. The solutions were preserved into two separate clean glass bottles and sealed and were sent to CFSL for opinion. According to CFSL report, both the hand washes gave positive test for the presence of Phenolpthalien powder and Sodium Carbonate. These facts disclose the commission of offences punishable under Sections 7 & 13(2) read with Section 13(1)(d) of the Act by the petitioner.

4. Petitioner filed application dated 9th March, 1990 seeking discharge on the grounds which I will be referring hereinafter, which was contested by the CBI. It is this application which was dismissed by the said order dated 15th January, 1994 and charges framed against the petitioner by the Special Judge.

5. Submission advanced by Sh. Arvind K. Nigam appearing for the petitioner was that the Act of 1988 repealing the Prevention of Corruption Act, 1947 came into force on 9th September, 1988 and Sections 161 to 165-A of the Indian Penal Code were omitted by virtue of Section 31 of the Act of 1988. Notification under Section 3 of the Delhi Special Police Establishment Act, 1946 authorising CBI to investigate offences under the Act of 1988, was issued on 7th September, 1989. Cognizance on the basis of said charge sheet was taken by the Special Judge on 3rd July, 1989. According to him, neither the case could have been registered against the petitioner under Section 161 IPC on 28th September, 1988 nor investigation thereof conducted and chargesheet filed by CBI before 7th September, 1989. Identical was the ground taken in the aforesaid application seeking discharge by the petitioner. As a part of this submission, it was further argued by Sh. Nigam that the view taken by the Special Judge in the impugned order that Section 30(2) of the Act 1988 and Section 6 of General Clauses Act, 1897 would be applicable to make the investigation legal in the present case, is totally erroneous. Strong reliance was placed on the decision in V.P. Chetal and M.P. Gogia Vs. UOI & Ors., .

6. I would first deal with the latter limb of the argument referred to above. In V.P. Chetal's case (supra), CBI on 12th September, 1988 registered an FIR No. RC-47/88-DLI on the basis of a complaint of one Surinder Kumar, a contractor, alleging that petitioner No.1 was demanding bribe of Rs.10,000/- for favouring him in award of tenders for construction of a school building at Netaji Nagar, New Delhi. During the course of investigation, a trap, was laid. Petitioner No.1 demanded and accepted the amount of Rs.10,000/- from said Surinder Kumar and passed on the bribe money to petitioner No. 2 from whose pant pocket the same was recovered. However, for want of sanction by the sanctioning authority, the criminal proceedings against the petitioners were dropped by the Special Judge. On departmental enquiry being initiated against both the petitioners in regard to the said incident dated 12th September, 1988, they filed CWP No. 2545/92 for quashing the departmental enquiry and said WP alongwith CMs. came to be dismissed by the said decision. Case set up by the petitioners was that the trap organized by CBI was without jurisdiction and without any authority of law and that this was on account of the fact that the Act of 1988 came into force on 9th September, 1988 and the notification under Section 3 of Delhi Special Police Establishment Act, 1946 specifying the offences which could be investigated by CBI, was issued only on 29th October, 1988 after the trap and that period to 29th October, 1988 the CBI had no jurisdiction to investigate the case under the Act of 1988. Argument raised on behalf of CBI that the investigation in the case was legal in view of the provisions of Section 6 of General Clauses Act, was dealt with in paras 18 to 20 of the report. Omitting the immaterial portion, said paras which are relevant read thus :-

     "18.  An argument was also raised by Mr. Lal that the  investigation  in the present case was legal in view of the provisions  of      Section 6 of the General Clauses Act, 1897. This Section 6 is  as      under :- 
 

     "6.  Effect of repeal - Whether this Act, or any Central  Act  or Regulation  made after the commencement of this Act, repeals  any  enactment  hitherto made or hereafter to be made, then, unless  a different intention appears, the repeal shall not-
 

     (a) revive anything not in force or existing at the time at which the repeal takes effect; or 
 

     (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or
 

     (c)  affect  any right, privilege, obligation  or  liability  acquired, accrued or incurred under any enactment so repealed; or 
 

     (d)  affect  any penalty, forfeiture or  punishment  incurred  in respect  of  any offence committed against any enactment  so  repealed; or
 

     (e)  affect  any  investigation, legal proceeding  or  remedy  in respect  of  any such right,  privilege,  obligation,  liability, penalty,  forfeiture  or  punishment as aforesaid  and  any  such investigation  ,  legal proceeding or remedy may  be  instituted, continued or as enforced, 
 

     and any such penalty, forfeiture or punishment may be imposed  as if the repealing Act or Regulation had not been passed. 
 

     19.  Then  we were referred to sections 30 and 31 of the  Act  of  1988 which are as under:- 
 

     "30.  Repeal and saving - (1) The Prevention of  Corruption  Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46  of 1952) are hereby repealed. 
 

(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act.

31. Omission of certain sections of Act 45 of 1860. Sections 161 to 165-A (both inclusive) of the Indian Penal Code shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act."

20. We do not think that on a plain reading, the provisions of Section 6 of the General Clauses Act would be applicable to make the investigation in a criminal offence under the Act of 1988 legal. The Act of 1988 repealed not only the Act of 1947 but also omitted sections 161 to 165-A Indian Penal Code. Under Section 31 of the Act of 1988, the provisions of Section 6 of the General Clauses Act shall apply to omission of Sections 161 to 165-A I.P.C. as if the said Sections had been repealed by a Central Act. The effect of Section 30, which repealed the Act of 1947, and Section 31 of the Act of 1988 would be same as far as the applicability of the Section 6 of the General Clauses Act is concerned. Notification under Section 3 of the Delhi Special Police Establishment Act, 1946, authorising the Delhi Special Police Establishment to investigate offences under the Act of 1988 including offences under Section 161 to 165-A Indian Penal Code, was issued only on 28th October, 1988. The Act of 1988 came into force on 9th September, 1988. During the interregnum period from 9th September, 1988 to 28th October, 1988 Delhi Special Police Establishment could not investigate the offences committed during that period. It is not that the alleged offences against the petitioners were committed prior to 9th September, 1988 which would have authorised the officers of the Delhi Special Police Establishment to investigate the offences irrespective of the repeal of the Act of 1947 and omission of sections 161 to 165-A I.P.C. by virtue of section 6 of the General Clauses Act..... In our opinion, therefore, section 6 of the General Clauses Act would not validate the investigation of the offences under the Act of 1988 in the present case."

7. During the course of argument, it was pointed out on behalf of CBI that the notification under Section 3 of the Delhi Special Police Establishment Act, 1946 authorising the CBI to investigate offences under the Act of 1988 etc. was issued on 7th September, 1989 instead of 28th October, 1988 as noted in V.P. Chetal's case (supra) and a copy of that notification is placed at pages 58 to 61 of the paper book. It may be noticed that in the present case, the case was registered and charge sheet filed during the interregnum period from 9th September, 1988 to 7th September, 1989 and, therefore, the said ratio in V.P. Chetal's case (supra) applies on all fours to the facts of this case. That being so, the view taken by the Special Judge in the impugned order in regard to applicability of Section 30(2) of the Act of 1988 and Section 6 of General Clauses Act to this case, is erroneous as pointed out on behalf of the petitioner.

8. This brings me to another limb of argument referred to above, that case under Section 161 IPC could not have been registered on 28th September, 1988 by CBI. It is not in dispute that though the case was registered under Section 161 IPC on 28th September, 1988 but the charge sheet came to be filed under Sections 7 & 13(2) read with Section 13(1)(d) of the Act of 1988 against the petitioner. As noticed above, Sections 161 to 165-A IPC (both inclusive) were omitted by virtue of Section 31 of the Act of 1988 which came into force on 9th September, 1988. Omitting a provision is the same thing as repealing a provision. When a provision in an Act is repealed, it must be considered that as if it had never existed except with reference to such part as is saved by the repealing Statue. That being the position, case against the petitioner could not have been legally registered on 28th September, 1988 under Section 161 IPC as the same was not on Statute on that date. Since the complaint made by said Sita Ram Dubey prima facie disclosed the commission of offences under the said Sections 7 & 13(1)(d) read with Section 13(2) of the Act of 1988, the charge sheet came to be filed under those provisions by CBI. In my view, the petitioner cannot take any advantage of the initial registration of case under said wrong section 161 IPC.

9. Coming to yet another limb of argument advanced on behalf of the petitioner that CBI did not have the power to investigate the case upto the date of filing of charge sheet as the notification under Section 3 of the Delhi Special Police Establishment Act, 1946 was issued only on 7th September, 1989, reference to the decision in H.N. Rishbud & Anr. Vs. State of Delhi, has become necessary. In this decision, Special Judge, Delhi quashed certain criminal proceedings for alleged offences under the Indian Penal Code and Prevention of Corruption Act, 1947. Proceedings were quashed on the ground that the investigations on the basis of which appellants were being prosecuted, were in contravention of provisions of sub-section (4) of Section 5 of the Act of 1947 and hence illegal. The High Court in revisional jurisdiction reversed the decision and the matter thus came before the Supreme Court. The Apex Court held :-

"We are, therefore, clear in our opinion that section 5(4) and proviso to Section 3 of the Act and the corresponding Section 5-A of Act 59 of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality.

(9) The question then requires to be considered whether and to that extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic 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, Cr.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. Section 190, Cr.P.C. 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 one 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. To such a situation Section 537, Cr.P.C. which is in the following terms is attracted :

"Subject to the provisions hereinbefore contained, no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice."

If, therefore, cognizance is in fact taken, on a police report vitiated 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. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in 'Prabhu Vs. Emperor' and _ 'Lumbhardar Zutshi Vs. The King', AIR 1950 PC 26 (D).

These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present case with the illegality with reference to the machinery for the collections of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.

It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for."

10. Thus, the aforesaid point raised on behalf of the petitioner is squarely covered by H.N. Rishbud's case (supra). Hence the charge-sheet based on invalid investigation against the petitioner, in the facts and circumstances of the case, neither needs to be set aside nor he be discharged or charges quashed under Section 482 Cr.P.C. which power is to be used sparingly and with circumspection.

11. For the foregoing discussion, the petition is dismissed. Since the case relates to an occurrence which took place more than 11 years ago, the concerned Special Judge will ensure that the trial is concluded within a period of 9 months from today.

12. Petitioner will appear before the said Court on 3rd November, 1999. Court record together with a copy of this order be sent back immediately.