P. SIRAJUDDIN ETC.

STATE OF MADRAS ETC.

March 9, 1970

(J. M. SHELAT AND G. K, MITTER, JJ.J

Cade of Criminal Procedure (Act 5 of 1898), Chapter XI-Investigation by Vigilance Department-Duty to follow procedure in Code-Prevention of Corruption Act (2 of 1947), s. 5(1) (b)-Scope of.

On March- 1, 1964, the Chief Minister of the State received a petition containing allegations of corruption against the appellant (a Superintending Engineer) and the Chief Minister asked the Director of Vigilance and Anti-Corruption to make enquiries.

On March 10, 1964, the Director submitted a note containing serious aspersions on the appe1lant and 'the

Chief Minister ordered further investigation.

The Director of Vigilance registered an inquiry on 15th April, 1964, and a Deputy Sugerintendent of Police of the Vigilance Department was asked to make the inquiry.

The Deputy Superintendent of Police made a thorough and searching inquiry.

He examined a large number of persons including 18 public servants and even enquired into and took down statements of persons who

were supposed to have provided the appellant with articles of food worth trifling sums of money, a long timebefore.

He recorded self incriminat ing statements of -a number of persons and secured their signatures thereto.

With respect to two officers, who were lhe subordinates of the appellant, he even gave certificates of immunity from any action that might be taken against them for the part played by them in aiding the appellant. On June 27, 1964, he lodged a first information report, with respect to offences under ss. 161 and 165 J.P.C., and s. 5(1) (a) and (d) of the Prevention of Corruption Act, 1947.

He investigated into the offences theniafter, and filed the charge sheet before the Special Judge.

The appellant made an application for discharge under s. 251-A, Cr.P.C., on the g!rounds of discrimination between him and other officers who were given palrdon and, gross irregularities in the investigation. The

Special Judge held. that though there was no basis for charging the appellant under s. 165, J.P.C., or under s. 5(2). read withs. 5(!)(b). of the Prevention of Corruption Act. a charge could be framed against him under s. 5(2) read with s. 5(1) (d). The appellant thereafter moved the High Court,

The High Court held : (I) that the investigation started on 15th Aplril 1964 when the Director of Vigilance registered an inquiry (2) that the taking of signed and self-incriminating statements from various \vitnesses was in violation of ss. 161 to 164 Cr.P.C.; (3) that the Special Judgo erred in directing the framing of the charge without excluding thoe statements from. ccinside\'ation; and (4) that the Special Judge should take up the matter once again after excluding from consideration those statements.

In appeal to this Court,

HELD : (I) Though technicallv investigation did not commence on J5th April 1964 but started onlv after the formal first information report was lodged on June 27, 1964, there were serious irregularities during the

inquiry and investigation. which caused prejudice to the appellant. The A directions given by the High Court were, however, sufficient in the circumstances of the case. (945 DJ

The Directorate of Vigilance and Anti.Corruption be'came a police station for the purposes ol the Criminal Procedure Code only by a notification dated 25th May 1964.

Therefore, the inquiry before that date was not an investigation under Ch. XIV of the Code, but there was no warrant for the Vigilance Department, which was in the charge of a senior B police officer, to disregard the provisions of ss. 162 and 163 of the Code.

Under s.161(3) of the Code a police officer is empowered to reduce into writing any statement made to him in the course of investigation and s. 162(1) lays down that such a statement is not to be signed by the maker thereof. Section 163 (I) lays an embargo on the investigating authority using any inducement, threat or promise to the, maker.

The reason for these provisions is to secure a fair investigation into the !acts and circumstances. of the cas eand to see th"t an O" 'alous police C officer may not misuse his position by getting a statement signed by the maker in order to pin him down to it.

Also, immunity from prosecution and the grant of a pardon were not in the discretion of police authorities. 1940 A-H: 941 AB, D, Fl

In the present case, the officers who were given immunity must have made the self-incriminating statements because ari oral assurance of D immunity was given before they made the statements, that is, the statements were given as a result of an inducement.

There can be no excuse for the Vigilance Department for proceeding in the manner adopted merely because the first information report had not been lodged.

As soon as it , , became clear to them on March 10, 1964, that the appe11ant appeared to be guilty of serious misconduct, it was their duty to lodge such a report and proceed further in the investigation according to Ch. XIV of the Code.

Their omission to do so cannot but prejudice the aQoellant and the State E ought not to be allowed to take shelter behind the pTea that although the steps taken in the enquiry befdre the first information was lodged were grossly irregular and unfair, the appellant could not eomplain, because. there W'S no infraction of the rules after lodging the first information repdrt. [942 D-G: 943 C-HJ

( 2) If it be a fact that it was the appellant, who as the head of the department, was actively responsible for directing the commission of F offences by his subordinates in a particular manner, he cannot be allowed to take the plea that the subordinates should also be joined as co-accused with him. (944 DJ

(3) Under s. S(l)(b). a public servant would be guilty of the offence of criminal misconduct if he h!lbitually accepts any valuable thing for inadequate consideration not only from outsiders who are likely to be concerned in any proceedin, g or business, transacted or about to be G transacted by the public officer but also from any subordinate or any !Other person who is connected with the official functions of the public servant.

Therefore, in this case. a charge could also be framed under - s. 5 ( 1) (b). if there was material. (945 ACl

CRIMINAL

APPELLATE JURISDICTION: Criminal Appeals 233 to 235 of 1966, and 9 to 11 of 1967.

Appeals from the judgment and order dated April 13, 1966 d. the Madras High Court in Writ Petitions Nos. 390 of 1965 etc.

.. c

M. C. Chagla, Amjad Nainar and R. Gopalakrishnan, for the appellant (in Cr. As. Nos. 233 to 235 of 1966) and respondent No. 1 (in Cr. As. Nos. 9 to IL of 1967).

S. Govind Swaminathan, Advocate-General for the State of Tamil Nadu, A. V. Rangam, K. S. Ramaswami Thevar, N. S.

Sivan, for the respondents (in Cr. As. Nos. 233 to 235 of 1~66) and the appellants (in Cr. As. Nos. 9 to 11 of 1967).

The Judgment of the Court was delivered by

Mitter, J, These six appeals arise out of certificates granted by the High Court of Madras arising out of two Writ Petitions and a petition under ss. 435 and 439 of the Code of Criminal Procedure filed in that court by P. Sirajuddin, the appellant in the first set of appeals. It is not necessary to give an outline of these petitions as the salient features theof appear sufficiently from the judgment of the High Court and the substance thereof is dealt with hereafter. '

The facts are as follows. The appellant was the Chief Engineer, Highways and Rural Works, Madras having risen from the status of a District Board Engineer in which capacity he joined service in the year 1935. He attained the age of 55 years on March 14, 1964 on which date he was asked to hand over charge of his office to one Shiv Shankar Mudaliar, Superintending Engineer, Madras.

He expected to be retained in service up to the age of 58, a privelege said to be normally accorded to persons physically and otherwise fit for public service. It appears that on March 1, 1964 a copy of a petition concerning him and dated February 28, 1964 addressed to the Minister, Public Works by one Rangaswami Nadar was received by the Chief Minister of the State.

It is said that apart therefrom allegations about want of rectitude of the appellant had already reached the Government. The Chief Minister asked the Director of Vigilance nd Anti-Corruption to make confidential enquiries. On March 10, 1964 Government received a note from the said officer which cast serious aspersions on the appellant's reputation and mentioned quite a few instances of his lack of probity.

The endorsement of the Chief Minister on the note read : .

Secretary, P.W.D. I had this (petition already mentioned) from the Director of Vigilance. This may be immediately looked into. I have asked the Director to pursue the investigation further."

Thereupon the Chief Secretary orally ordered a full-fledged enquiry .in the matter and the Deputy Superintendent of P.olice, Vigilance and Anti-Corruption one G. K. Ranganathan, was asked to make a personal enquiry and report under the supervision of

R. N. Krishnaswamy. The Director of Vigilaince registered an enquiry numbering 8/HD/64 on 15th April, 1964. That the enquiry was taken up with great keenness appears from a note of Ranganathan to the effect he would require the assistance of two Inspectors to assist him. There dm be no doubt that the enquiry launched by the Vigilance and Ariti--Corruption Departmentwas a very thorough and searching , one.

A very large number of persons were examined by the Vigilance and Anti-Corruption officers including 18 public servants who spoke to matters touching the allegations against the appellant. Statements in writing signed by the makers were taken from no less than nine public servants regarding

the above and two of them, namely, S. Sivasubrahmanyam and S.

Chidambaram were given certificates assuring them immunity from prosecution for the part played by them in rendering aid to the . C appellant in the '<ommission of his malpractices. These two persons occupied the position of an Assistant Engineer and a Junior Engineer and were subordinates of the appellant.

On June 27. 1964 a first information report was lodged in_ the Diretorate of Vigilance and Anti-Corruption, Madras and the case recorded as 3/ AC/64. The offences to be investigated into were under sectiQDs 161and165 of the Indian Penal Code ands. 5(1)(a) and ( d) of the Prevention of Corruption 1"ct.

The complaint was made by Ranganathan, Deputy Superintendent of Police, Vigilance and Anti-Corruption Department to the Additional Superintendent of Police in the same department.

It is pertinent to note that the Directorate of Vigilance and Anti-Corruption which had been set up under a Govemment order dated 8th April 1964 was declared to be a 'police station' under clause ( s) of sub-section ( 1) of section 4 of the Code of Criminal Procedure by a notification dated May 25, 1964 and by another notification of the same date the Governor of Madras conferred upon the Director and the Superintendf\nts of Police of the said Directorate all the ordinary powers of a Magistrate of the First Class under section 5-A of the Prevention of Corruption Act within the limits of the whole of the State of Madras except the Presidency Town.

The complaint by Ranganathan to the Additional Superintendent ot Police, Vigilance

a, nd Anti-Corruption, gave details of various malpractices with which the appellant was charged.

He was Inter alia said to have obtained various articles of furniture with the help of Sivasubrahmanyam and Chidambaram mentioned above by paying only a small fraction of the cost and asking them to adjust the balance by manipulations of the muster rolls claims. He was also said to have got his residence whitewashed in a similar ma, nner.

It was also alleged against him that h"e had constructed a bungalow by diverting building materials allotted for the construction of the Cauveri bridge at Tiruchirapalli.

The complaint wound up with a paragraph to the effect that a criminal case would be registered against him as a regular investigation alone would facilitate the c<:>ilection

. '

of additional evideince by way of recovery of valuable things which he had obtained from his subordinates by various illegal means and. in ad!lition more incriminating evidence was likely to be forthcoming during the investigation.

Sanction !o prosecute the appellant was obtained on September 27, 1964 and a charge sheet was filed against the appellant in the court of the Special Judge, Madras on October 5, 1964 numbered as C.C. No. 10 of 1964.

No less than 47 witnesses had been examined during the investigation following the first information report and at least nine of them had been previously examined at what was termed as .a "prelimi- nary. or detailed enquiry".

No less than 19 malpractices were alleged against him in different paragraphs of the charge sheet and the appellant was charged with having obtained for himself or for members of his family various valuable things from his subordinates by corrupt and illegal means and by abusing his position as a public servant. The charges were for offences already mentioned.

In the enquiry the appellant was supplied with copies of re-· cords on which the prosecution proposed to rely including the statements recorded by the investigating officer which according to the appellnt showed prima facie that a number of public se1vants who had given the statements were themselves responsible for commission of various offences including falsification of accounts and forgery of public records.

Before the Special Judge the appellant moved an application for discharge under s. 251-A of the Code of Criminal Procedure on the ground that the charges against him were groundless. In that application he also complained : (a) that the instances alleged against him related mostly to his personal matters unconnected with his official functions; (b) that none of the items referred to in the charge had been handed over to or delivered to him for the purpose of securing an advantage in order to attract s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act, and (c) that on the admitted statements of the public servants they were liable to be charged with various offences and he had been greatly prejudiced by discriminatory treatment.

While holding that there was no basis of charging the appellant under s. 1651.P.C. or under s. 5(2) read withs. 5(1)(b) of the Prevention of Corruption Act, the Judge held that a charge could H be framed against him under s. 5(2) read with s. 5(1)(d) of the Act. He observed that the "investigating officers evidently felt that if they arraigned the subordinate officers along with the appellant the case may fail for lack of evidence."

Against that order dated January 16, 1965 the Public Pro- :secutor preferred Cr. R.C. 294 of 1965 and the appellant preferred Cr.M.P. 934 of 1965 under s. 561-A of the Cod~ for quashing the proceedings and discharging him as the charge was groundless. The appellant filed two writ petitions before the High Court, namely, one for a writ of mandamus directing the forbearing from

prosecution of C.C. No. 10 of 1964 and a second for a writ of certiorari to quash the order of the Special Judge mentioned above.

There was a petition under ss. 435/439 of the Criminal Procedure Code for revision of the order of the Special Judge and one under s. 561-A of the Code for quashing his said order.

The High Court dealt with all the Writ Petitions and the different allied matters together. Broadly speaking, it was urged before the High Court :

1. There had been such a violent departure from the provisions ()f the Code in the matter of investigation and cognizance of offences as to amount to denial of justice and to call for interference by the issue of prerogative writs.

2. The investigation and prosecution were wholly ma/a fide and had been set afoot by his immediate junior office.r, one Sivasankar Mudaliar, Superintending Engineer, Madras who was related to the Chief Minister of the State.

3. The appellant's case was being discriminated from those of E others who though equally guilty according to the prosecution case were not only not being proceeded against but were promised absolution from all evil consequences of their misdeeds because of their aid to the prosecution.

In his petition for the issue of a writ of mandamus by the High Court the appellant stated that it was only by perusing copies of the statements furnished to him under s. 173(4) Cr. P.C. that he found that 18 public servants had stated having given him valuables without any or adequate consideration and that it was at his instance that they had committed offences of criminal conspiracy under s. 120-B lP.C. and criminal breach of trust of Government moneys under s. 409 lP.C. besides falsification of accounts etc.

His positive case was that the Director of Vigilance and Anti- Corruption had obtained signed statements which were confessional and self-incriminatory from persons who were going to be called as witnesses by _giving them assurances of immunity. These assurances were not only directed towards immunising them from prosecutions but also any departmental action likely to affect adversely the makers of the statements. The case of discrimination was based mainly on the above averments that the Directorate had :singled him out leaving others who were equally guilty. According

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SIRAJUDl)!N v. MADRAS (Mitter, J.) 937

10 the appellant this also showed mala /ides and malice directed towards him.

Another main argument which was canvassed before the High Court related to h.e applicability of ss. 162. and. 163 of the Criminal Procedure Code and the effect of the v10lnt1on thereof, if any. For the appellant, it was argued that the taking of signed statements from persons who were eyentually going to be examined in the criminal proceedings by giving them assurances of immunity and thereafter relying on their subsequent unsigned statements those under s. 161(3) of the Code for the purpose of s. 173 amounted to a fraud on the procedure established by law. It was contended that as the statements recorded under s. 161 were the material on which the Special Judge had to consider whether the charge was groundless under s. 251-A _of the Code, the illegality "corroding the foundation vitiated the enquiry and necessitated the discharge of the appellant." .

The High Court examined the case made out in the affidavits of the appellant and th_e counter affidavits on behalf of the State. It expressed great dissatisfaction at the variance in the attitude of the State in the different affidavits in that whereas in the first counter affidavit there was no contradiction of the appellant's averment that asurances of immu_nity had been given to all tire 18 persons examined before the lodging of the first information report, the plea put forward in a subsequent affidavit was that such assurance had been given only to two persons, namely, the two subordinates of the appellant and only after signed statements had been given by them. The Court was however not satisfied that a direction was called for for the prosecution of the subordinate officers , also.

Further the High Court was not impressed with the plea of hostile discrimination against the appellant observing that although the "policy of not securing judicial pardon to accomplices by bringing them as approvers but retaining them at the sole discretion of the prosecution might be open to question" "that cannot by itself invalidate the arraignment of the persons actually put up for trial"' specially where the person charged was in a position to wield influence and power over those asked by him to aid him in commission of misconduct.

Although not of the view that the r.ecord before it established a case of ma/a fide or hostile discrimination against the appellant which called for the quashing of the proceedings, the High Court took the view that the investigation of the case under Chapter XIV of the Code should be held to have commenced when Ranganathan, / the Deputy Superintendent of Police, started the enquiry on 15th April 1%4 on the reasoning that though "an enquiry may start with shadowy. beginnings and vague rumours. once a police officer forms a definite opinion that there are grounds for investigating a Ll0Sup.Cl(NP)70-15

crime, an investigation under the Code has started". According to the High Court-

(a) "substantial information and evidence had been gathered before the so-called first information report was registered".

(h) the police officer who had conducted the enquiry prior to 27th June 1964 was a person competent to enter upon investigation;

(c) admittedly there had been an earlier probe by the Vigilance Department prior to 10th March 1964 on the basis whereof he was not re-employed;

(d) there was definite information to the Government contained in the report dated 13th March 1964 relatini: to corrupt activities of the appellant; and

(e) the "delay on the part of the investigating officer in registering the first information report may be an irregularity, but certainly the statements recorded subsequent to th~ receipt of definite information of the commission of an offence in gathering evidence of the offence would nonetheless be statements recorded during investigation and hit by s. 162 of the Criminal Procedure Code."

With regard to the disregard of the provisions of ss. 162 and 163 of the Code, the High Court observed that the result of taking his signature to a statement would be to tie a witness down to the statement or at least to give him the impression that he would not be free to make a different statement at the trial but the statement of a witness at the trial would not become inadmissible by reason of his having signed a statement before going into the witness box. Reference was .made to several decisions bearing on s. 162 of the Code and in particular to Zahiruddin v. King Emperor(') that the evidence of a witness who had previously signed a statement in writing did not become inadmissible or vitiate the whole proceeding although the value of the evidence would be seriously impaired thereby.

The court .seems to have been of the view that it was the duty of the Magistrate or the presiding Judge on discovering that a witness had while giving evidence, made material use of a statement given by him to the police to disregard the evidence of that witness

as inadmissible. The High Court's definite conclusion was that H there had been a deliberate violation of the provisions of the Code

(I) 74 I.A. 65, 74.

A •

and a departure from a recognised and lawful procedure for investigation. . . . . .

With regard to the propriety of takmg self-mcnrmnatory state ments even when there.had been no assurance of immunity from prosecution, the High Court observed that as the learned Advocate- General for the State had stated that the record of manipulations in the muster rolls by -the subordinate officers of the appellant had to be disregarded as not proper material for consideration as the "Special Judge had not considered these vitiating features in regard to the documents placed before him while ordering the framing of charges against the appellant" it was unnecessary to examine the question at length.

The High Court found partly in favour of the appellant and held that the order of the Special Judge directing the framing of a charge on consideration of the statements before him under s. 173(4) of the Code without reference to the illegalities in the investigation should be quashed. The High Court further directed the Special Judge to take up the matter once again and consider thr. case excluding from consideration all statements recorded under ss. 161(3) and 164 which were found vitiated in the light of the observations made by it. A direction was also given to exclude portions of the statements which were self-incriniinatory and con fessional in character of the maker even if the same did not otherwise violate the provisions of ss. 162 and 163 of the Code.

In our view the procedure adopted against the appellant before the laying of the first information report though not in terlllll forbidden by law, was so unprecedented and outrageous as to shod: one's sense of justice and fairplay.

No doubt when allegations about dishonesty _of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct an en quiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief , Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleg ed in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer.

The lodging of such a report against a person, specially one who like the appellont occupied the top position in a department, even if baseless, would do incalculabJC

940 SUPREME COURt REPORTS [!970j 3 S.C.R.

harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department b!!t any such enquiry must proceed in a fair and reasonable manner. 'fhe enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction.

The means adopted no less than the end to be achieved must be impeccable.

In ordinary departmental proceedings against a G()vernrnent servant charged with delinquency, the normal practice before the issue of a charge sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue invol_ved.

It is only thereafter that a charged sheet is submitted and a full-scale enquiry is launched.

When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination uf persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same t" find out whether there is primu facie evidence of guilt of the officer.

Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.

The Code of Criminal Procedure is an enactment designed inter a/ia to ensure a fair investigation of the allegations against a person charged with criminal misconduct.

Chapter XIV of the Code gives special powers to the police to investigate into cases whether cognizable or non-cognizable in the manner provided therein.

Section 160 empowers a police officer making an investigation to require the attendance before himself of any person who appears to be acquainted with the circumstances of the case.

Section 161 (1) gives him the right to examine orally any person supposed to be acquainted with the facts and circumstances of the case.

Although bound to answer question put to him sub-s. (2) of the section exempts a person from answering any question which would have a tendency to expose him to a penal charge or to a penalty for forfeiture.

Under sub-s.(3) the police officer is em, powered to reduce into writing any statement made to him in the course of such examination.

Section 162 (I) expressly Jays down that such a statement made in the course of an investigation if reduced into writing is not to be signed by the maker thereof and no part of such statement except as expressly provided is to be used

A •

SIRA.TUDDIN I', MADRAS (Mitter, J,) 941

for any purpose at any enquiry or trial in respect of. any such offence under investigation at the time when the statement was made.

The only exceptions to these are cases when the statement falls under s. 32 cl.(1) of the Evidence Act and to statements which are covered by s. 27 of that Act.

The obvious idea behind this provision is that an over-zealous police officer may not misuse his position by getting a statement in writing signed by the maker which would tend to pin him down to the statement but leave him free to speak out freely when called to give evidence in court.

In order that statements made in the course of such investigations be recorded without any pressure or inducement by an investigat ing officer s. 163(1) lays down an embargo on the investigating authorities usin_g any inducement, threat or promise to the maker which might influence his mind and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings. It is to be noted that whereas the other sections hereinbefore referred to contain guidelines for the police officers in making investigation, this section expressly provides that any person in authority even if he is not a police officer must guide himself accordingly, in case where a crime is being investigated under this Chapter of the Code.

All this is however subject to the provisions of sub-s.(2) which1 allows a person to make any statement a_gainst his own interest by way of confession if he does so of his own free will.

Even then the law enjoins by s. 164 that such a statement or confession can only be recorded by a Magistrate of the Class mentioned therein and even such a Magistrate must explain to the oerson making the confession before recording the same, that he is not bound to make it and if he does so it may be used as evidence against him.

Further the Magistrate must make sure that the person was making the confession voluntarily and not acting under any pressure from an outside source.·

All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case : however serious the crime and howsoever incriminating the circumstances may be a11ainst a Person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the

prt of the officers investigating into the crime before the lodging of " charge sheet. Clearlv the idea is that no one should be put to the harassment of a criminal trial unless there are good aticl substantial reasons for holding it. Section 169 of the Code empowers a police officer making investigation to release an accused person from custody if there is no sufficient evidence or reasonable ground o.f suspicion to justify the forwarding of him to a Magit.rate by taking a bond from him with or without sureties. Section 1 n enjoins upon a p01ice officer

to complete the investigation without unnecssary delay and forward to a Magistrate empowered to take cogruzance of the offence a report in the form prescribed by Governmemt setting forth inter alia the names of the parties, the nature of the information and the names of the persons who appear to be acguainted with the circtim.stances of the cise and to communicate to the State Government the action taken by him to the person, if any, by whom information relating to the commission of the ?ffenc~ was. fit given.

When a report has been made under this section 1t 1s the duty of the officer in charge of the police station to furnish to the accused before the commencement of the enquiry or trial a copy of the report above mentioned and of the first inforni.ation report under s. 154 and of all other documents or relevant extracts on which the prosecution proposes to rely including the statements and confessions, if any, recorded under s. 164 and the statements recorded under sub-s.(3) of s. 161 of all persons whom the prosecution propOSCi to examine as its witnesses.

In our view the enquiring ofticer pursued ths mvcaligation with such zeal and vigour that he even enquired into arid took down statements of persons who were supposed to have provided the appellant with articles of food worth trilling sums or money long before the launching of the enquiry.

The whole course of investigation as disclosed in the affidavits is suggestive of 1some predetermination of the guilt of the appellant.

The enquiring officer was a high-ranking police officer and it is surprising that simply because he was technically not exercising powers under Chapter XIV or the Criminal Procedure Code in that a formal first information rep9rt had not been lodged he overlooked or deliberately overstepped the limits or investigation contained in the sa.id Chapter.

He recorded self-incriminating statements of a number or persons and not only secured their signatures thereto obviously with the idea or pinning them down to those but went to the length or providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded.

It was said that the certificates were given after the statements had been signed. It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates. There can be very little doubt that the persons who were given such immunity had made the statements incriminating themselves and the appellant under inducement, threat or promise as mentioned in s. 24 of the Indian Evidence Act.

It is no doubt the duty of the State to track down and punish 11 all delinquent officers but it is certainly not in accordance with justiCe and fairplay that their conviction should be sought for by such questionable means. ·

A The office of the Directorate of Vigilance and Anti-Corruption Department, Madras became a police station for the purpose of the Criminal Procedure Code under sub-cl. (s) of sub-s. (1) of s. 4 of the COde by a notification dated 25th May, 1964. Prior to that it was only functioning under a Memorandum No. 1356/ 64-2 dated 8th Apnl 1964 when it _was s7t up to ensu_re tJie mai?- 8 tenance ofthe highest standard of mtegnty and, prob1ty m public servants. If the investigation had been taken up after May 25;

1964 it. would have been one under Chapter XIV of the Code without any doubt.

Although we are not disposed to concur with the view that the investigation unper Chapter XIV of the Code started as early as 15th April 1964 we are of opinion that there was no warrant for the Vigilance and Anti-Corruption Department which was in the charge of one o{ the highest police officers of the State to disregard the provisions of ss. 162 and 163 of the Code of Criminal Procedure.

The investigation was of a type more thorough and

elabote than is usually to be found : as noticed already it was o in charge of a senior police officer who had the assistance of two police inspectors in the matter. No blame attaches to them fo~ making enquiries of a large number of persons but the whole course of investigation is suggestive of guidance by someone who was intimately familiar with the affairs of the appellant and his department 'and throwing out scents which the investigafing officers were only too keen to pick p and follow.

The appellant may have been guilty of all the cliarges levelled against him out we cannot approve of the manner . in which the investigation against him was conducted and an attempt made to lay a guideline for the persons who were to be cited as prosecution witnesses in their evidence at the trial. To say the least it would be surprising to find so many persons giving confessional and self-incriminatory statements unless they had been assured of immunity fro.m the evil effects thereof whether oral or in writing.

!here c~ be no excuse or he Directorate of Vigilance_ and Anh-Corruption for proceedmg m the manner adopted in the preliminary enquiry before the lodging of the first inforrnatio-, report: As sool! as it became clear to them-and according to the High Court 1t was before March 13, 1964 in which we concur-that the aooellant apocared to be guilty of serious misconduct,_ it was their duty to lodge such a -report and proceed further. in th~ !nvestigation accordin11; to Chapter XIV of the Code.

Their omission to do so cannot but prejudice the appellant and the State ought not to be allowed to take shelter behind the plea that although the steps taken in the preliminary enquiry were grossly irregular and , unfair, the accused cannot comolain because there was no infraction of the rules of the Evidence Act or th.e provisions of the Code,

In our view the granting of amnesty to two persons who are A sure to be examined as witnesses for the prosecution wa~ highly • irregular and unfortunate. It was rightly pointed out by tlfu_High Court:

"Neither the Criminal Procedure Code nor the Prevention of Corruption Act recognises the immunity from 0 prosecution given under these assurances and that the grant of par.don was not in the discretion of police authorites."

We are not impressed by the argument that the appellant was singled out from a number of per.ions who had aided the appellant in the commission of various acts of misconduct and that they were really in the position of accomplices. It was pointed out by the High Court that the prosecutinn may have felt that "if the subordinate officers were joined along with the appellant as accused the whole case may fall for lack of evidence".

In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for. directing the commission of offences by his subordin!ltes in ; i particular manner, he cannot be allowed to take the plea that unless the subordinates were also joined as co-accused with him the case should not be allowed to proceed.

It was contended before us by the learned Advocate-General for the State of Madras that both the High Court and the Special Judge had gone wrong in the interpretatiolf of s.5(1)(b) of the Prevention of Corruption Act.

Having heard counsel on both sides; we find ourselves unable to sustain the view of the High Court on this point.

Omitting the portions of the section which are not relevant it reads :

"5 (I) A public servant is said to commit the offence of criminal misconduct-

(a)

(b) if he habitually accepts or obtains for

himself . . . . any valuable thing without consideration G or for a consideration which he knows to be inadequate, from any person lwhom he knows to have been, or to be. or to he "likdy tu be concerned in any proceeding or business lransaclcd or abcrut to he transacted by him, or) having any connection with the official functions of himself. or . . .

H . . . . . . .The portion of the 'uh-section within hrnckets in OlJ.~ 'l!i.w qualifie~

the expression "any person" in the same way as the portion reading "having any connection with the official function of himself'.

So read "any person having any connection with the official functions of himself' would include any subordinate of the person who accepts the valuable thing.

The words "of himself' do not refer to the person in the expression "any person" but refers to the pronoun "he" ai the beginning of the sub-section.

A subordinate of the public servant would have connection with his official functions.

In our view the sub-section aims at folding within its ambit not only outsiders "who are likely to be concerned in any proceeding or business transacted or about to be transacted" by the public officer but also any subordinate or any other person who is connected with the official functions of the public servant.

In the result all the appeals are dismissed.

Although we do not endorse the view of the High Court with regard to the elate of the commencement of the investigation so far as Chapter XIV of the Code of Criminal Procedure is concerned, we do hold that serious irregularities were committed in the so-called ''full-fledged enquiry" to the prejudice of the appellant.

We do not however feel that there is any need to modify the directions given by the High Court to the Special 'Judge who will follow the directions of the High Court in addition to the modification indicated by us.

V.P.S.

A ppeais dismissed.

P. SIRAJUDDIN ETC

STATE OF MADRAS ETC

March 9, 1970

M. SHELAT

MITTER, JJ

Prevention of Corruption Act

s. 5(1)

March 10, 1964

15th April, 1964

June 27, 1964

ss. 161 and 165

s. 5(1)

Prevention of Corruption Act, 1947

s. 251

Cr.P.C

s. 165

s. 5(2)

Prevention of Corruption Act

s. 5(2)

s. 5(1)

15th Aplril 1964

ss. 161 to 164

Cr.P.C

25th May 1964

ss. 162 and 163

s. 162(1)

Section 163

s. 5

Madras High Court

M. C. Chagla

Amjad Nainar

R. Gopalakrishnan

S. Govind Swaminathan

A. V. Rangam

K. S. Ramaswami Thevar

N. S.

Sivan

Mitter

ss. 435 and 439

Code of Criminal Procedure

P. Sirajuddin

Madras

March 14, 1964

Shiv Shankar Mudaliar

March 1, 1964

February 28, 1964

Rangaswami Nadar

G. K. Ranganathan

R. N. Krishnaswamy

Ranganathan

S. Sivasubrahmanyam

S.

Chidambaram

June 27. 1964

Indian Penal Code

section 4

Code of Criminal Procedure

May 25, 1964

section 5

Prevention of Corruption Act

Sivasubrahmanyam

Chidambaram

Tiruchirapalli

September 27, 1964

Special Judge, Madras

October 5, 1964

s. 251

Code of Criminal Procedure

s. 5(1)(d)

s. 5(2)

Prevention of Corruption Act

s. 1651

s. 5(2)

Prevention of Corruption Act

s. 5(2)

s. 5(1)(d)

January 16, 1965

s. 561

ss. 435

s. 561

Sivasankar Mudaliar

s. 173(4)

s. 120

s. 409

ss. 162

s. 161(3)

s. 173

s. 161

s. 251

13th March 1964

s. 162

ss. 162 and 163

s. 162

s. 173(4)

ss. 161(3) and 164

ss. 162 and 163

Code of Criminal Procedure

Code of Criminal Procedure

Chapter XIV of the Code

Section 160

Section 161

Section 162

s. 32

s. 27

s. 163(1)

s. 164

Code of Criminal Procedure

Section 169

Section 1

section 1

s. 154

s. 164

s. 161

s. 24

Indian Evidence Act

s. 4

25th May, 1964

8th Apnl 1964

1356/ 64-2 dated 8th Apnl 1964 when it was s7t up to ensure tJie mai?- 8 tenance ofthe highest standard of mtegnty and, prob1ty m public servants.

25;

1964

Chapter XIV of the Code

15th April 1964

ss. 162 and 163

Code of Criminal Procedure

March 13, 1964

as it became clear to them-and according to the High Court 1t was before March 13, 1964 in which we concur-that the aooellant apocared to be guilty of serious misconduct, it was their duty to lodge such a -report and proceed further.

Chapter XIV of the Code

State of Madras

Prevention of Corruption Act

Code of Criminal Procedure


S. N. SHARMA A

BIPEN KUMAR TIWARI AND ORS.

March 10, 1970

[S. M. SIKRI, V. BHARGAVA & C. A. VAIDIALINGAM, JJ.] B

 Code 6f Criminal Procedure, (5 of 1898), s. 159-Maiutrote-if can hold tnquiry himself, and stop police investign1ion.

A first information report was lodged in respect of a crime and the appellant, who was the AJditional District Ma&istrate (Judicial) was named therein as principal accused. The offences mentioned were coani zable and the Police after re¥istering the case, started investigation. The appellant applied to the Judicial Magistrate for invocation of the provisions of s. 159 Cr.P.C., and for conducting preliminary enquiry by the Court itself and for issuance of nei; essary directions to the Police to stop investiaation alleging that a false report had been lodged at the instance of the local police. The Magistrate directed the police to stop investip lion and decided to hold the enquiry himself. Thereupon an application was moved in the High Court under s. 561 A Cr.P.C. for quashing the order of the Magistrate as he had no jurisdiction to pass such an order under s. 159 Cr.P.C. The High Court accepted the application and set aside the Magistrate's order. Dismissing the appeal. this Court.

HELD : Section 159 Cr.P.C. does not empower a Magistrate to stop investigation by the police.

This section first mentions the power of the Magistrate to direct an in E vestigation on receiving the report under s. 157, and then states the alternative that, if he thinks fit, he may at once proceed, rJr depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case. On the face of it, the first alternative of directing an investigation cannot arise in a case where the report it:self shows that investigation by the police is going on in accordance with s. 156. It is to be noticed that the second alteroative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold F the preliminary enquiry. That power is preceded by the condition that he may do so, "if he thinks fit'. The use of this expression makes it clear that s. I 59. is primarily meant to give to the Magistrate the power of directinJ?: an investigation in cases where , the police decides not to investie:ate the case under the proviso to s. 157 ( 1). and it is in those cases that. it he thinks fit, he can choose the second alternative. Without the use of the exoression "if he thinks fit" the second aJtenati\-e could have been held to be independent of the first; but the use of this cxpression G !rnakes h plain that the oo, ver confelrred bv the second clause of this section is only an alternative to the power given by the first clause and can. therefor~. be e,,; ercised only in those cases in Whicfl the first clause is applicable. ·

Even in sub..s.(3) of section 156, the only po,~:er given to the Magi5trate, who can take cognisance of an offence under section

190. is to H order an 'investiJation~ there is no mention of any power to stop an investigation by the oolice. The scheme of these sections. thus, clearly is that the oower of the oolice to investiate any cognizable offence is un~ controlled by the Magistrate, and it is only in cases where the police

s. N. SHARMA V. B. K. TIWARI (Bhargma, J.) 947

decide not to investigate the case that the Magistrate can intervene and either direct an investigation. or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. [949 G-950 F]

The Crown v. Mohammad Sadia Naiz. A.LR. 1949, Lah. 204, Pancham Singh v. The State. A.J.R. 1967 Pat. 416 and King Emperor V'. Khwaia Naziil Ahmad, 71 I.A. 203, refelrred to.

(2) The Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect a cognizable offence has been committed. If the police engineer a false report of a cognizable offence aainst anv oerson he can in aoorooriate cases always invoke the '• power of the High Court under Art. 226. Therefore, the fact that the Code docs not provide for a poer to a Magistrate to stop investigation by C the nolice cannot be a round for holding that such a powe" must be read into s. 159 of the Code. [951 Hl

CRIMINAL APPELLATI! JURISDICTION : Criminal Appeal No. 256 of 1969. '

Appeal by special leave from the judment and order dated D Janua.rv 15, 1969 of the Allahabad High Court in Criminal Misc.

Case No. 1770 of 1968. . •

R. K. Garg, S. C. Aga1wal, D. P. Singh, V. J. Francis and S. Chakavarty, for the appellant.

0. P. Rana, for respondent No. 2.

The Judgment of the Court was delivered by

Bbargava, J.

A first inforrriation reiiort was lodged by one Vijay Shanker Nfgam in Police Station Cantonment, Gorakhpur, in respect of an incident alleged to have taken place at about 7 p.m. on 10th April, 1968 in fro~_ of his house.

The report stated that one Bipen Kumar Tiwar1 had been attacked by certain goondas who also stabbed him with a knife and further caused injuries ot Vijay Shankar Nigam also.

One of the principal accused named in that report was S. N. Sharma, Additional District Magistrate (Judicial), Gorakhpur, who is the appellant in this appeal.

The allegation agains~ him was that it was at his instigation that the goondas had attacked Bipen Kumar Tiwari and attempted to murder him.

The offences made out by the report lodged by Vijay Shankar Nigam were cognizable and the Police, after registering the case, started investigation.

On the 13th April, 1968, the appellant moved an application before the Judicial Magistrate having jurisdiction to take cognizance of the offence, alleging that a false report had been lodged against him at the connivance and instance of the local police. It was µrged that it would, therefore, _be desirable in the interest of justice that provisions of section 159 of the Code of Criminal Procedure be

. SUPREME COFRT REPORTS

(1970) 3 S.C.R .

invok~ and the preliminary enquiry J"Ilay be conducted by the Court itself .and ecesary directions may be issued to the Police

to sop the mvest1gat10n. The Magistrate, after hearing both parties, passed an order directig the police to stop investigation and decided to hold the enquiry himself.

Thereupon, on 2nd May, 1968, an application was moved in the High Court of Allahabad under section 561A, Cr. P.C., to quash the order passed by the Magistrate on 13th April, 1968, on the ground that he had no jurisdiction to pass such an order under s. 159, Cr.

P.C. This application was allowed by the High Court by its

judgmen~ dated 15th January, 1969, so that the High Court quashed the order of the Judicial Magistrate and held that the police of Gorakhpur was at liberty to conclude the investigation and submit its report to the Magistrate after which the case could proceed in accordance with law.

The appeJ:ant has challenged this order of the High Court in. this appeal brought up by special leave.

Section 156(1) of the Code of Criminal Procedure empowers an officer in charge of a police-station to investigate. any cognizable case without the order of a Magistrate. Sub-section (2) of s. 156 lays down 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 no~ empowred under this section to investigate, while sub-s. (3) gives power to any Magistrate empowered under section 190 of the Code to order such an investigation in any case as mentioned in sub-s. (!). Section 157 requires that, whenever such infonnation in received by an officer in charge of a police-stalion that he has reason to suspect the commission of an offence which he is empowered to investigate under section 156, he must forthwith send a report of it to the Magistrate empowered to tak~ cognizance of such an offence upon a police report and, at the same t-ime, he must either proceed in person, or depute one of his subordinate officers to proceed, to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts. The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature. The second clause of the proviso permits the officer in charge of a police station not to investigate the case if i~ appears to him that there is no sufficient ground for , entering on an investigation. The report to be sent to the Magistrate under sub-s. (1) of section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report

s. N. SHARMA I'. u. I.., TJWAR[ ( Bhargma, J.) 949

his reasons for not fully complying with the requirements of subsection ( l) and, in addition. in cases whre he decided not to in- . vestigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to .be investigated. These provisions are followed by section 159 which is as follows :-

" 159. Such Magistrate. on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed. to hold a preliminary inquiry into, or othr

wi>e to dispose of, the case in manner provided in this Code." The High Court has held that, under s. 159, the only power, which the Magistrate ciln exercise on receiving a report from the officer in charge of a police station, is to make an order in those cases which arc covered by the proviso to sub-s. (1) of sec[ion 157, vi~ .. cases in which the officer in charge of the police station does not proceed to investigate the case. The High Court has further held that this s. 159 does not empower a Magistrate to stop investigation by the police in exercise of the power conferred on it by section 156. It is the correctness of this decision which has been challenged by the appellant, and the ground taken is that s. 159 should be interpreted as being wide enough to permit the Magistrate to proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case in the manner provided in this Code, even if the report from the police, submitted under section 157, states that the police is proceeding with the investigation of the offence.

It was urged by counsel for the appellant that the narrower interpretation of s. 15'1 accepted by the High Court will leave persons at the mercy of the police who can harass any one by having a false report lodged and starting investigation on the basis of such a report without any control by the judiciary. He has particularly emphasised the case of the appellant who was himself a Judicial Officer working as Additional District Magistrate and who moved the Magistrate on the ground that the police had engineered the case against him.

We. however, feel constrained to hold that the lang1rnge used in s. l 59 does not permit the wider interpretation put forward by counsel for the appellant. This section first mentions the power of the Magistrate to direct an investigation on receiving the report under s. l 57, and then states the alternative that, if he thinks fit, he may at once proceed, or depute any Magistrat~ subordinate

H to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case. On the face of it, the first alternative of directing an inve>tigation cannot arise in a case where the report itself shows that investigation by the police is going on in

accordance withs. 156. It is to be noticed that the second alternative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary enquiry. That power is prec.eded by the condition that he may do so, "if he thinks fit''. The use of this expression makes it clear thats. 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the police decide not to investigate the case under the proviso to s. 157(1), and ii is in those cases that, if he thinks fit, he can choose the second alternative. If the expression "if he thinks fit" had not been used, it mighl have been argued that this section was intended to give in wide terms the power to the Magistrate to adopt any of the two courses of either directing an investigation, or of proceeding himself. or deputing any Magistrate subordinate to him to proc.eed to hold a preliminary enquiry as the circumstances of the case may require. Without the use of the expression "if he thinks fit", the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.

It may also be further noticed that, even in sub-s. (3) of sec tion 156, the only power given to the Magistrate, who can take cognizance of.an offence under section 190, is to order an investi gation; there is no mention of any power to stop an investigation by. the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to in vestigate has been made independent of any control by the Magis trate. "

The High Court of Lahore in The Crown v. Mohammad Sadiq Niaz('), and the High Court of Patina in Pancham Singh

v. The State( 2 ) interpreted section 159 to the same effect as held by us above. The reasons given were different. Both the Courts based their decisions primarily on the view expressed by the Privy Council in King-Emperor v. Khwaja Nazir Ahmad('). That case, however, was. not quite to the poipt that has come up for decision before us. 'IJ!e Privy Council vjas concerned with the question whether the High Court had power under section 561A of the'

. (1) A.l.R. 1949 Lah. 204.

(2) A.l.R. 1967 Patna418.

(3) 71 I.A. 203.

D -

F (

G ,

s. N. SHARMA v. B. K. TIWARI (Bhargava, J.) 951

Code of Criminal Procedure to quash proceedings being taken by the police in pursuance of first information reports made to the police.

However, the Priv)' Council made some remarks which have been relied upon by the High Courts and are to the following effect :-

"In lndia, as has been shown, there is a statutory right on the part .of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under s. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus."

This interpreMion, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the

police to investigate a cognizable offence is not to be interfered with by the judiciary.

Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under sec!ion 561A, Cr. P.C., while we have to interpret section 159 of the Code which defines the powers of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under section 157 of the Code. In our opinion, section 159 was really intnded to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence.

Counsel appearing on behalf_ of the appellant urged that such an interpretation is likely to be very prejudicial particularly to Officers of the judiciary who have to deal with cases brought up by the police and frequently give decisions which the police dislike. In such cases, the police may engineer a false report of a . cognizable offence against the Judicial Officer and may then harass hirri by cauying on a prolonged investigation of the offence made out by the report. It appears to us that, though the Code of Cri- minal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed in appropriate cases an aggrieved person can always seek a remdy by invokil!g the power of .the High Court under Art.

226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the ffigh Court can always issue a writ of A mandamus restraining the police officer from misusi.Dg his legal powers. The fact tha~ the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in II section 159 of the Code.

In the resuJt,.the decision of the High Court in this case must be upheld, so that the appeal fails and is dismissed.

Y.P.

Appeal dismissed.

S. N. SHARMA

A

BIPEN KUMAR TIWARI AND ORS

March 10, 1970

S. M. SIKRI

V. BHARGAVA

s. 159

s. 159

Cr.P.C

s. 561

Cr.P.C

s. 159

Cr.P.C

Section 159

Cr.P.C

s. 157

s. 156

s. 157

section 156

section

190

N. SHARMA V. B. K. TIWARI

Bhargma

Code of Criminal Procedure

Art. 226

s. 159

R. K. Garg

S. C. Aga1wal

D. P. Singh

V. J. Francis

S. Chakavarty

P. Rana

Bbargava

Vijay Shanker Nfgam

Bipen Kumar Tiwar1

Vijay Shankar Nigam

S. N. Sharma

Bipen Kumar Tiwari

13th April, 1968

section 159

Code of Criminal Procedure

SUPREME COFRT REPORTS

(1970) 3 S.C.R

2nd May, 1968

High Court of Allahabad

section 561A

s. 159

15th January, 1969

Gorakhpur

Section 156(1)

Code of Criminal Procedure

s. 156

section 190

Section 157

section 156

section 157

N. SHARMA

section 159

s. 159

s. 159

section 156

s. 159

section 157

s. 15

s. 157(1)

section 190

High Court of Lahore

High Court of Patina

section 159

section 561A

Code of Criminal Procedure

s. 491

section 159

section 157

section 159

Art.

226

section 159


FATEH BIBI ETC.

CHARAN DASS

March IO, 1970

(S. M. SIKRI, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.]

Hindu Law of Inheritance, (Amendment) Act, 1929 (Act 2 of 1929)- Act whethr applies in case of Hindu male dying in-estate before thei Act came into operation and succeeded by female heir dying after that dc .. te-Succession tp estate of last male owner when opens.

K's son C died in 1925 and was succeeded in the ownership of his properties (inherited from K) by his mother B.

B continued in possession till her death in 1946.

Her daughter M took possession of the properties as heir.

M died in 1950.

The respondent-plaintiff was the son of M.

In 1955 he filed a suit alleging that the defendant, after the death of B claiming to be entitled to the properties as a collateral and revisioner of K, had got mutation of the aforesaid properties effected in his name.

As daughter's son of K the respondent-plaintiff prayed for declaration of his title to the suit properties; he also prayed for recovery of pos:tession thei'e~ of from the defendant.

The defendant contended that he wa. a collateral .of K and was entitled to succeed to the properties after the termination of the life-estate of his widow B on her death in 1946. The trial court held that in view of the provisions of the Hindu Law of Inheritance (Amendment) Act 1929 (Act 2 of 1929) the plaintiff as sisters' son of C the last male holder, had a preferential claim to that of the defendant who was only a paternal uncle of C.

The first appellate Court upheld the decree of the trial Court.

In second appeal by the defendant before the High Court the learned Single Judge held that as C the last male owner had died in 1925 his heirs must be found on that date.

On that date according to the learned Judge the heir of C was the defendant. The fact that the life.estate of the mother and sister of C intervened after his death would not affect the rights of the defendant as the Act of 1929, had no retrospetive operation.

In Letters Patent Appe~I the Division Bench reversed the judgment of the Single Judge. The, legal representatives of the defendant appealed to this Court by certificate. The question of Jaw that fell for consideration was whether the Act applies only to the case of a Hindu male dying intestate on or. after February 21, 1929 when the Act came into force or whether it also applies to the case of a Hindu male dying intestate before the Act came into operation and succeeded by a female heir who died after that date, It was not disputed that C held the pfoperty absolutely and he died intestate.

HELD: Applying the rule laid down hy the Judicial Commi.tte~ of the Privy Council in Lala D1111i Chand'.\· case the appeal must be d1sn11ssed.

The point of time for the applicability of the Act is when the succession opens ri:;,,. v, ihen the life estate terminates.

In consequence the qucs tion as to who is the nearest revcrsionarv heir. or \Vhat is the class of reversionary heirs \'.'ill fall to he settled at the date of the expirv of the ownerS:hip for life or lives.

Th~ dcath of a flindu fen1alc life-estate owner oocns the inheritance to the rcvcrsioncrs and the one n1ost nearly

related <it the tin1C to the last full l'\Vncr hccon1cs entitled to the estate.

!961 E]

LI JS1pCl(NP )70-16

The Act accordingly must be held to apply to the case oi a Hindu male dying intestate before the Act came into operation and succeeded by a female heir who died after that date. In this case as decided by all the Courts the last female heir died onlyon March 25; 1950 and, under the Act, the plaintiff as the sister's son of C, was entitled to succeed to his estate, in prefe{'ence to the defendant who was only a paternal uncle.

Under the Act the paternal uncle is postponed to the four relations referred to in the Act, the last of whom is the sister's son. [961 GJ

It may also be stated, though the question was not raised by the parties, that in this case the succession can be considered to have opened even in 1946 on the termination of the life-estate of C's mother and accordingly C's sister must be considered to have succeeded to the property

of her brother, in her own right as a preferential heir under the Act, though the estate taken by her was also under s. 3 (b) only a life estate. ~61ffi c

Lala Duni Chand v. Muscmmat Anar Kali, LR. 73 I.A. 187, fOllowed and applied.

Krishnan Chettiar v. Manikammal, I.LR. 57 Mad. 718, Kanhaiya Lal

v. Mst. Champa Devi A.I.R. 1935 All. 203, Lakshmi v. Ananaharama, ,- I.LR. 1937 Mad. 948 (F.B.) Rajpa/i Kunwar v. Sarju Rai, I.LR. 58 All.

D 1041 (F.B.) Annagouda Nathgouda Patil v. Court of Wards. [1952] S.C.R. 208, 215, Shrimati Shakuntala Devi v. Kaushalya Devi; I.LR. 17 Lah. 356, , T'okhan Dusadh v. Mst. Manoa, I.LR. 16 Pat. 215 (F.B.) and Bindeshari Singh v. Baij Nath Singh, I.L.R. 13 Luck 380, referred to.

C1v1L APPELLATE JURISDICTION : Civil Appeal No. 364 of

19~.

Appeal from the judgment and decree dated October 30, 1961 of the Punjab High Court in Letters Patent Appeal No. 42 of 1959.

G. S. Vohra and Harbans Singh, for the appellants.

Bishan Narain, J.

B. Dadachanji,

0. C.

Mathur and Ravinder Narain, for the respondent.

The Judgment of the Court was delivered by

Vaidialingam, J.-The short question that arises for consideration in this appeal, filed by the legal representatives of the deceased defendant, on certificate, is whether on a true construction of the Hiitdu Law of Inheritance (Amendment) Act, 1929 (Act II of 1929) (hereinafter referred to as the Act), h applies only to the case of a Hindu male dying intestate on or after February 21, 1929 (when the Act came into fqrce) or ''ether it applies in the case of a Hindu male dying intestate before the Act came ipto operation and succeeded by a female heir who died after that date.

FATEH BIBI v. CHARAN<DASS (Vaidialingam, /.) 955

The following pedigree will be useful in appreciating the relationship of the parties as well as the basis of the claim made regarding the title to the properties by the parties.

MJhri

Dasodbi

Dayala

I Tota

I Thakur Dass

I Kirpa Ram-Bishan Devi Bishna@ Bishan Singh

(Defendant)

I Charallii Lal I Maya DeviNand Lal

I Charan Dass (Plaintiff)

The respondent-plaintiff instituted Suit No. 41 of 1955 in the Subordinate Judge's Court, Jagraon, against the original defendant for recovery of possession of the suit properties. According to the plaintiff Kirpa Ram was the last owner of the properties. Even during his life-time his only son Charanji Lal had died. On the death of Kirpa Ram, his widow Bishan Devi became the owner of the properties and was in possession of the properties for her lifetime. After the death of Bishan Devi, her daughter Maya Devi (daughter of Kirpa Ram and Bishan Devi) became her heir and remained in possession of the property till her death. After Maya Devi's death, according to Dharma Shastras the plaintiff, as the daughter's son of Kirpa Ram, was entitled to succeed :0 the properties which were in the possession of Bishan Devi and later on of Maya Devi, his mother. It was alleged by the plaintiff that the defendant, after the death of Bishan Devi, claiming to be entitled to the properties of Kirpa Ram, got mutation in the Revenue Registers effected in his name on or about January 6, 194 7, Therefore, according to the plaintiff, the defendant had no right, title or interest to the properties of Kirpa Ram and the mutation obtained by him could nGt affect the rights of the plaintiff as the daughter's son.of Kirpa Ram. On these allegations the plaintiff prayd for a declaration regarding his title to the property and for recovery of possession of the same from the defendant.

The defendant contested the claim of the plaintiff on vaiious grounds. He alleged that Charanji Lal did not pre-decease Kirpa Ram but, on the other hand, after the death of JGtpa Ram,

SUPREME COURT REPORTS [ 1970) 3 S.C.ll.

Charanji Lal, his son, became heir and was in possession of the A properties Jen by his father. Charanji Lal died long afterwards, m or about 1926 and, after his death, his mother Bishan Devi

ecame heir to the property left by Charanji Lal, for her lifetime. After the death of Bishan Devi, the defendant claimed that he, as a collateral of Kirpa Ram, became entitled to the properties of the latter and, as such, got mutation effected in his B favour, according to law. He further averred that Maya Devi did not at all come into possession of the estate after the death of Bishan Devi. In fact the defendant even disputed the fact that Maya Devi was the daughter of Bishan Devi. Even if Maya Devi

ws the daughter bf Bishan Devi, the defendant alleged that according to the custom governing the parties, Maya Devi had c no right to the properties left by Bishan Devi. On these allegations, the defendant maintained that he was rightly entitled to the properties of Kirpa Ram and that the plaintiff has no cause of action for having the mutation effected in the Revenue Registers in his favour cancelled.

The Trial Court, by its judgment and decree dated February 22, 1956 decreed the plaintiff's claim. It found that Maya Devi was the daughter of Kirpa Ram ands Bishan Devi and that the plaintiff was the son of Maya Devi. The Trial Court further found that Charanji Lal did not pre-decease his father Kirpa Ram but, on the other hand, after the death of Kirpa Ram, Charan ji Lal was the last male holder of the entire property and was in possession, as such, till his death. It was also further found that the parties were governed by their personal law and not by custom in matters of succession. It has been found that Charanji Lal died issueless on August 22, 1925 and, after his death, his mother Bishan Devi was in possession of the property as a life-estate holder.

After her death on November 26, 1946 Maya Devi was in possession of the property, again as a Iifeestate holder, till her death on March 25, 1950. Though no claim was made by the plaintiff to succeed to Charl\nii Lal as his sister's son, and though his claim was to succeed to the property of Kirpa Ram as the latter's daughter's son, the Trial Court held that on the findings that Charanji Lal was the last male holder, the claim of the plaintiff had really to be decided on the basis of the Act under which the plaintiff, as the sister's son of Charanji Lal, has got a preferential claim. The contention of the defendant that the Act did not apply inasmuch as Charanji Lal had died long before the date when the Act came into force (February 21. 1929), was no_t accepted and the ort took the view that succession opened m favour of the plamt1ff only after the death of Maya Devi in I ?SO" In this view the trial Court held that the plaintiff, bemg the sisters son of the last male holder (Charanji Lall was to :be preferred to the defendant who

was only a paternal uncle of Charanji Lal and as such, decreed the suit.

The defendant i;:arried the matter in appeal before the learned District Judge, Ludhiana, in C.A.53 of 1956. Tue learned Judge, in the judgment dated March 14, 1957, has stated that the defendant only attacked the finding of the trial Court that the plaintiff was the daughter's son of Kirpa Ram and the findings on the other issues were not challenged. Tue le::u:ned Judge, on this point, agreed with the finding of the trial Court that Maya Devi was the daughter of Kirpa Ram and Bishan Devi and that the plaintiff was the son of Maya Devi. Tue decree of the trial Court was cofirmed.

Tue defendant again challen.ged the decrees of both the Subordinate Courts before the Punjab High Court in Regwar Second Appeal No. 359 of 1957. Before the learned S_ingle Judge the appelant raised two contentions : (1) That the plaintiff never set up any claim as a preferential heir under the Act being the sister's on of the last male holder and, as such, bis title should not have been recognised by the Subordinate Collrts; and (2) In any event, the Act does not apply inasmuch :13 the last male holder Charanji Lal died as early as August 22. 1925, long before the coming into force of the Act on Feb:uary 21, 1929.

Tue learned Judge, after a reference to the pleadings, held that the first contention was well-founded as the plaintiff claimed title to . the properties only as the daughter's son of Kirpa Ram and had even 'alleged that Charanji Lal had predeceased his father and no clainI as the sister's son of . Charanji Lal was over made. But, in view of the lip.dings recorded by the two Subordinate Courts that the plaintiff was the sister's son of Charanji Lal who had also been held to be the last male holder, the learned Sli:igl.e Judge held that the applicability of the Act did arise for consideration.

Tue learned Judge agreed with the findings of the two Courts that Charanji Lal was the last male holder of the properties in question and that he was the absolute owner of those -properties and there was no question of the property in his hands

being coparcenary property. But, regarding the applicability of the Act, the learned Judge held that as Charanji Lal died on August 22, 1925 the, succession .to his estated must be considered to have opened on the date of his death a!1d, as the A~~ came into force only on February 21, 1929 the hen:s of Charan11 Lal must be found on the date the succession opened, viz., August 22, 1925; and the heir to Charanji Lal on that date was

his paternal uncle, the defendant. According to the learned Judge the fact that the life estate of the mother and sister of Charan ji Lal intervened after his death, will not affect the rights of the defendant as the Act has no retrospective operation. For this view, the learned Judge relied on two earlier decisions, one of the Madras High Court in Krishnan C, h, ettiar v.

Manikamma/(1) and the other of the Allahabad High Court in Kanhaiya Lal v. Mst. Champa Devi(2 ) holding that the Act applied only to the case of a Hindu Male dying intestate on or after February 21, 1929. In this view the learned Judge, by his judgment dated November 18, 1958 held that the rightful heir to the estate of Charanji Lal was the defendant and reversed the decrees of the two Subordinate Courts and dismissed the plaintiff's suit with costs throughout.

The plaintiff-respondent carried the matter in Letters Patent Appeal No. 42 of 1959 before a Division Bench of the Punjab High Court.

The Division Bench noticed that the' decisions relied on by the learned Single Judge had been overruled by Full Bench decisions of the same Courts in Lakshmi v. Anantha rama( 3 ) and &jpali Kunwar v. Sarju Rai("), where it had been held that under the Hindu Law it is the death of the female heir that opens inheritance to the reversioners who, till then possess only an inchoate right, generally termed a spes successio11is. It has been further held that the Act will apply even to cases where

fue last male-holder dies intestate before the passing of the Act and the limited female heir is alive after the coming into force of the Act, as the succession to the deceased male member must be considered to open only after the passing of the Act and will be governed by the pro, isions of the Act.

Following these decisions, the Division Bench reversed the judgment of the learned Single Judge and decreed the plaintiff's suit for possession holding that 1mder the Act the plaintiff, being the sister's son of the lasb male holder Charanji Lal, was the preferential heir.

Mr. Vohra, learned counsel for the appellant, no doubt urged that the interpretation placed upon the Act by the Division Bench is erroneous.

According to him the Act will apply only to cases of Hfa1du male dying intestate after the Act came into force, i.e., after February 21, 1929; and, in this case as Charanji Lal died on August 25, 1925 long before tl!e Act came into force, succession to bis estate opened on the date of the death of Charanji Lal and on that date the defendant, in Hindu Law, was entitled to succeed to the estate.

(I) 1.L.R. 57 Mad. 718.

(2) A.I.R. 1935 All. 203.

(>) l.L.R. [1937] Mad 948. (F.R)

(4) I.L.R. 58 All. 1041 (F. B.)

I I

Mr. Bishan Narain, learned counsel for the plaintiff-respondent, pointed out that it was rather unfortunate that the later full Bench decisions of the Madras and Allahabad High Courts were not brought to the notice of the learned Single Judge who had followed the decisions of those Courts which had been subsequently over-ruled.

The learned Counsel also pointed out that according to the decisions of the various High Courts, the view taken by the Letters Patent Bench was correct.

We are of the opinion that the decision of the Letters Paten~ Bench i; correct.

No doubt, originally the view taken by some of the High Courts was that the Act applies only if the last male holder dies after the coming inte force of the Act and it will have no retwspective application to cases of Hindu males dying intest;;:e before the date of the Act.

That view has now been given the go-by as is seen from the later decisions to which we shall 1efer presently.

But before we refer to those decisions. we sh8:l quote the observations of this Court in 4 nnagouda Nathgoudu Patil v. Court of Wards(') regarding the object and scope of the Act.

This Court observed :

"The object of the Act as stated in the preamble is to alter the order in which certain lteirs of a Hindu male dying intestate are entitled to succeed to his estate; 1nd section 1 (2) expressly Jays down that 'the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will'.

Thus the scope of the Act is limited.

It governs sucession only to the separate property of a Hindu male who dies intestate.

It iioes not alter the Jaw as regards the devolution of any 'otlr.:1 kind of property owned by a Hindu male ... : It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law un, der all circumstances and for all purposes: it makes them heirs only when the propositus is a male and the property in respect to which it is rnught to be applied is his separate property."

\ 'l1!e four relations, referred to in t.1.e above extract, are : the son's daughter. daughter's sister and sister's son.

Under the Mitakshara Law. in the line of heirs, the paternal uncle came .iust after the paternal grandfather and his son followed him immediately.

But, by the Act, the four relations mentioned above have been introduced between the grandfather and the

(I) [l952J S.C.R. 208. 215.

SUPREMB COURT REPORTS [ 1970 j 3 S.C •. ll

paternal uncle and his son.

That is, the paternal uncle and his A ~ son are postponed to these four relations by the Act.

' In the case before us we have already pointed out that Charanji Lal was the absolute owner of the property and therefore

.there was no question of the property being held in coparcenary .and there is no controversy that the property was not disposed of by will by Charanji Lal.

Therefore, prima facie the Act will apply to the esate of Charanji Lal if it can be hCld •that the succes- .sion to his estate opened only when his sister Maya Devi died on March 25, 1950.

The question is : When did succession gpen to the estate of <:haranji Lal. Was it on the date '?'hen-he died, i.e., AugUst 22, 1925; or was it when his sister Maya Devi died, viz., March 25, 1950? . .

In this connection we may refer to the decisions in Shrimati .Shakunta/a -Devi v. Kaushalya Devi('); Raipali Kunwar v. Scuju Rai('); Pokhan Dusadh v. Mst. Manoa('); Lakshmi v. Anantha

rama(~) and Bindeshari Singh . v. Baij Naih Singh('). In alf

these cases the last male holder had died before the date of the Act and the estate was in the possession of a life-estate holder -either a widow or a mother who died after-the coming into force of the Act.

It has been held in all these decisions that the succession to the estate of the last male-holder must be considered to open only on the termination of the life-estate and the Act will apply _in considering the heirs of the last male holder a~ the termination of the life estate. ·

It is not necessary for us to refer to any of these decisions in great detail as the matter has been considered by the Judicial Committee of the Privy Council in Lala Duni Chand v. M'usammat A nar Kali ( •) . The Judicial Committee has held that the Act, which altered the order of succession of certain persons mentioned the.rein and. which came into operation on February 21, 1929 applies not oitly to the case of a Hindu male dying intestate -on or after February 21, 1929 but also to the case of such a

male·, dying intestate before th{lt date if he was succeeded by a female heir who died after that date. The Judicial Committee, has further held that succession in such cases to the estate of the 1ast Hindu male who died intestate did not open until the de_ath of the life-estate holder. It has also been held that during the life-time of the life-estate holr, the reversioners in Hindu Law have no vested interest in the estate and that they have a mere

(I) I.L.R. 17 Lah. 356. ·

(3) l.L.R. 16 Part. 215 F.B.

(5) I.L.R. 13 Luck. 380.

(2) l.L.R._ 58 All. 1041 F.B.

(4) l.L.R. (1937) Mad. 948 F.B

(6) L.R. 73 I.A. 187.

G •

1pes successionis.

It was contended before the Judicial Committee'that the words 'Hindu male dying intestate' was occurring in the preamble to the Act conaotes the future tense, of a Hindu male dying after the Act has come into force.

This contention was rejected by the Judicial Committee, which observed as follows:

"In the argument before their Lordships reliance was placed on the words 'dying intestate' in the Act as connoting the future tense, but their Lordships agree with the view of the Lahore High Court in Shrimati Shakuntala Devi v. KaushalayQ Devi (ILR 17 Lah 356) that the words are a mere description of the status o.f the deceased and have no reference, and are no: intended to have any reference, to the time of the death of a Hindu male. The expression merely means "in the case of intestacy of a H\ndu male". To place this interpretation on the Act is not to give a retrospective effect to its provisions, the material point of time being the date when tlie succession opens, namely, the death of the widow." D

We are in entire agreement with the above observations of the Judicial Committee and accordingly hold that the point of time . 'for the applicability of the Act is when.· the succession opens,.

viz., when the life estate terminates. In consequence, it must

be further held that the questions as to who is the nearest reversionary heir, or what is the class of reversionary heirs will fall to be settled at the date of the expiry of the ownership for life or lives.

The death of a Hindu female life-estate holder opens. the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate.

We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been

succeed~ by a female heir who died after that date.

In this case, on the fiildings recorded by all the Courts, the last female heir died only on March 25, 1950 and, 'under the Act, the O plaintiff, as the sister's son of Charanji Lal, is entitled to succeed to his estate, in preference to the defendant who is only a paternal uncle.

We have already pointed out that the paternal .uncle is postponed to the four relations referred to in the Act, the last of whom iS the sister's son. -

Befote .we conclude, we may state that in this case the succession can be considered to have opned even on November 26, 1946 when Bishan DeVi's (the mother's) life estate terminated

and it must be held that even Maya DeVi, the sister of Charanji

Lal, must be considered to have succeeded to the. property of her brother, in her own right as a preferential heir under the Act, though the est-ate, taken by.her under s. 3(b) will only bea life-estate.

No doubt these aspects have not been raised before any of the Courts, nor even before us.

The result is that the decision of the Letters Patenn Bench of the High Court is correct.

In consequence the appeal fails and is dismissed with _costs. ·

-0.C.

Appeal dismissed.

A '

FATEH BIBI ETC

CHARAN DASS

March IO, 1970

S. M. SIKRI

V. BHARGAVA

February 21, 1929

Lala D1111i Chand'.\

s. 3

LR. 73 I.A. 187

G. S. Vohra

Harbans Singh

Bishan Narain

B. Dadachanji

C.

Mathur

Ravinder Narain

Vaidialingam

Dasodbi

Tota

Thakur Dass

Charallii Lal

Maya DeviNand Lal

Charan Dass

Subordinate Judge's Court, Jagraon

Kirpa Ram

Charanji Lal

Kirpa Ram

Bishan Devi

Maya Devi

Dharma Shastras

January 6, 194

JGtpa Ram

Charanji Lal

February 22, 1956

Charan ji Lal

August 22, 1925

November 26, 1946

March 25, 1950

Charl\nii Lal

February 21. 1929

Charanji Lall

District Judge, Ludhiana

March 14, 1957

Punjab High Court

August 22. 1925

Feb:uary 21, 1929

Charan11 Lal

Madras High Court

Allahabad High Court

Kanhaiya Lal

November 18, 1958

Vohra

August 25, 1925

Bishan Narain

Madras and Allahabad High Courts

section 1

Mitakshara

haranji Lal

AugUst 22, 1925

L.R. 73 I.A. 187

Lahore High Court

Befote

Bishan DeVi

Maya DeVi

Charanji

Lal

s. 3(b)