Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
MAJ. I. C., LALA ETC. ETC.
DATE OF JUDGMENT29/03/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
DUA, I.D.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 2204 1973 SCR (3) 818
1973 SCC (2) 72
CITATOR INFO :
E 1981 SC 368 (6,15,23,24)
ACT:
Indian Penal Code (Act 45 of 1860), Ss. 120B, 420 and 511,
Prevention of Corruption Act (2 of 1947), s. 5(1)(d), 5(2)
and 5A, Criminal Law Amendment Act, 1952 Ss. 6 and 7(3) Code
of Criminal Procedure Act 5 of 1898), Ss. 196A, 235 and 239-
Offence committed at more than one place-Order of which
magistrate necessary-Cognizable and noncognizable
offences--Criterion-Jurisdiction to try non-Government ser-
vant with Government servants.
Practice-Duty of court to decide on genuineness of sanction.
HEADNOTE:
Two army-officers and a businessman were put up for trial
before the Special Judge under the Criminal Law Amendment
Act, 1952. They were all charged with offences of
conspiracy under s. 120B, I.P,.C. read with s. 5(2) of the
Prevention of Corruption Act and s. 420 I.,P.C. The
businessman was charged under s.420 and ss. 420 and 511,
I.P.C. The two army officers were also charged with the
offences under s. 420 I.P.C. read with s. 5(1)(d) of the
Prevention of Corruption Act. After some witnesses were
examined by the prosecution, on a petition by the three
accused, the High Court quashed the charges and the
proceedings on the grounds, (1) that the officer who
investigated the case was not competent to do so; (2) that
the offences were non-cognizable and hence the Special Judge
could not take cognizance-of them without sanction under s.
196A, Cr.P.C.; and (3) in view of the enormous length of
time that elapsed between the date the registration of the
case and the examination of the witnesses (about 4 1/2
years), to proceed further with the case would be an abuse
of the process of Court causing harassment to the accused.
Allowing the appeal to this Court,
HELD : (1) (a) Under s. 5A of the Prevention of Corruption
Act, before it was amended in 1964, no officer below the
rank of Deputy Superintendent of Police could investigate
into offences punishable under Ss. 161, 165, 165A I.P.C., or
under s. 5 of the Prevention of Corruption Act, without the
orders of a Presidency Magistrate or the Magistrate First
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Class. Where an offence is committed in more than one place
the order of every Magistrate within whose jurisdiction the
offence or part of the offence was committed was not
necessary to enable the investigation to be carried on. All
that is necessary is that the Magistrate who makes the order
under s. 5A should have territorial jurisdiction over the
place where any part of the offence took place. In the
present case, the offence of conspiracy was alleged to have
been committed both at Tejpur as well as at Gauhati and the
Inspector concerned had obtained the order of the First
Class Magistrate, Tejpur. [821H; 822A-C]
Chinnappa v. State of Mysore, A.I.R. 1960 Mysore 242,
Chatterjea V. Delhi Special Police Establishment I.L.R. 1969
Assam and Nagaland 275 and Union of India v. B. N.
Ananthapadmanabbiah, A..I.,R. 1971 S.C. 1836, referred to.
(b) The High Court expressed doubt whether the order of the
Magistrate of Tejpur was a genuine one. If he had any such
doubt it was the duty of the Judge to have gone into the
matter thoroughly and satisfied
819
himself whether the order was genuine or not, and given a
categorical finding on the matter. There should have been
no room allowed for any doubt, or suspicion of any underhand
dealing or unfair conduct, in a matter of this kind. [823A-
C]
(2) Under Schedule 11 of the Criminal Procedure Code
offences under Ss. 161 to 165, I.P.C. and offences
punishable with imprisonment for life or imprisonment of 7
years and upwards are shown as cognizable offences. Under
s. 5(2) of the Prevention of Corruption Act the sentence may
extend to 7 years. Therefore, an offence under s. 5 of the
Prevention of Corruption Act is a cognizable offence. The
words ’notwithstanding anything contained in the Code of
Criminal Procedure, in the section merely carve out a
limited exemption from the provisions of Criminal Procedure
Code in so far as they limit the class of persons who are
competent to investigate, and to arrest without a warrant.
The mere fact that under the Act certain restrictions are
placed as to the officers who are competent to investigate
into the offences mentioned in s. 5A would not make those
offences any the less cognizable. Therefore, the offences
under s. 161, 165 and 165A of the I.P.C. and s. 5,
Prevention of Corruption Act, are cognizable offences and
there is no question of their being cognizable if
investigated by a Deputy Superintendent of Police and non-
cognizable when investigated by an Inspector of Police; nor
can there be any question of these offences being cognizable
if investigated under s. 156, Cr.P.C. but not when
investigated under s.. 5A, Prevention of Corruption Act. It
is illogical to say that offences would be cognizable in
certain circumstances and non-cognizable in certain other
circumstances. Therefore, the reed for a sanction under S.
196A, Cr.P.C. does not arise. [824A-H; 825A-D; 827]
Union of India v. B. N. Ananthapadmanabhiah, A.I.R. 1960
Mysore 242, Union of India v. Mahesh Chandra, A.I.R. 1957
Madhya Bharat 3 and Public Prosecutor v. Sheikh Shariff,
A.I.R. 1965 A.P. 372, referred to.
Taj Khan v. The State, A.I.R. 1956 Rajasthan 37, Ram
Bijhumal v. The State, A.I.R. 1958 Bombay 125 and Gulabsingh
v. State, A.I.R. 1962 Bombay 263, approved.
G. K. Apte v. Union of India, A.I.R. 1970 Assam & Nagaland
43, disapproved.
(3)The need to order re-investigation or to begin the trial
again after the sanction under s. 196A is obtained, and the
consequent inordinate delay and harassment of the officers
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concerned, do not arise at all. Hence, there is no question
of quashing the charges on that ground. [827G-H]
(4) Under s. 6 and 7(3) of the Criminal Law Amendment Act,
1952, and Ss. 235 and 239, Cr.P.C. the businessman (private
individual) and the two army officers, (public servants)
could be tried together. [829A-C]
The State of Andhra Pradesh v. Kandimalla Subbaiah & Anr.
[1962] 1 S.C.R. 194, followed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 161
to 163 of 1970.
Appeals by certificate from the. judgment and order dated
May 23, 1969 of the Assam and Nagaland High Court at Gauhati
in Cr. Rev. Nos. 36, 39 and 46 of 1968.
82 0
D. Mookherjee, Avtar Singh, G. Das, S. P. Nayar and R. N.
Sachthey, for the appellant.
Nuruddin Ahmad and N. N. Keswani, for the respondent.
Harbans Singh, for the respondents.
V. M. Tarkunade, A. L. Arora and D. D. Sharma, for the
respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-Two of the appellants, Major Lala and Lt.
Col. Khanna are Army officers and the appellant in the 3rd
appeal, Gupta, is a businessman of Gauhati. All of them
were put up for trial before the Special Judge appointed
under the Criminal Law Amendment Act 1952. One charge which
was ,common to all the three of them was that between June
1962 and January 1963 all of them agreed to commit or cause
to be committed offences under section 5(2) of the
Prevention of Corruption Act, and of cheating punishable
under section 420 of the Indian Penal Code, and these
offences having been committed in pursuance of a conspiracy
were punishable under section 120B of the Indian Penal Code
read with section 5 (2) of the Prevention of Corruption Act
and section 420 I.P.C. Mr. Gupta, the businessman was
charged under section 420 I.P.C. as well as section 511 read
with section 420 I.P.C. The two Army officers were also
charged with offences under section 420 read with section 5
(1) (d) of the Prevention of Corruption Act.
The case was filed before the Special Judge on 28-6-1963 and
the charge was framed on 13-2-65. After about 18 out of the
52 witnesses cited by the prosecution had been examined the
three respondents filed petitions under section 561A read
with section 439 of Code of Criminal Procedure before the
High Court of Assam & Nagaland on 28-3-68, 1-4-68 and 10-4-
68 respectively for quashing the charges. A learned Single
Judge allowed these petitions on 23-5-1969 and quashed the
charges and the proceedings before the learned Special
Judge. He did this on three grounds
(1) that the officer who investigated the
case was not competent to do so;
(2) that the offences that were being tried
were noncognizable and the Special Judge could
not have taken cognizance of them without
sanction under section 196A of the Code of
Criminal Procedure, and
(3) that in view of the enormous length of
time between 2-2-63, the date on which the
case was
821
registered and 1-4-68, upto which date some
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witness had been examined, the last witness
having been examined on 15-1-67, it entailed
undue harassment to the accused persons and
the proceedings have to be quashed to prevent
further harassment, abuse of the process of
the court and vexation to the accused persons.
These three appeals have, therefore, been filed by the Union
of India by certificate granted by the High Court.
We shall first of all deal with the question whether the
officer who investigated into these cases was not properly
authorized to do so. The officer was an Inspector of the
Delhi Special Police Establishment. Under section 5A of the
Prevention of Corruption. Act, before it was amended in
1964, no officer below the rank of the Deputy Superintendent
of Police could investigate into offences punishable under
sections 161, 165 and 165A of the Indian Penal Code or under
section 5 of the Prevention of Corruption Act without the
order of a Presidency Magistrate or a Magistrate of the
First Class. In this case the Inspector concerned had
obtained the order of the First Class Magistrate of Tezpur.
The argument before the High Court, which was accepted by
the learned Judge, was that as the offences of conspiracy
were alleged to have been committed both at Tezpur as well
as at Gauhati, the investigation based on the order of the
Tezpur Magistrate alone was not a proper one. In other
words, the argument was that unless the Inspector had been
authorized to investigate not only by the First Class
Magistrate of Tezpur but also by the First Class of Gauhati
district, he could not have done so. The learned Judge
referred to and relied upon the decision in Chinnappa v.
State of Mysore(1). It was decided in that case that any
First Class Magistrate appointed in a district can issue
orders under section 5A of the Prevention of Corruption Act
for investigation of a case. From this the learned Single
Judge drew the conclusion that in respect of an offence said
to have been committed at Gauhati as well as at Tezpur the
order of the Tezpur Magistrate was not enough. He also
relied upon the decision of the High Court of Assam and
Nagaland in Chatterjee v. Delhi Special Police Establishment
( 2 ) . This decision has been upheld by this Court in Union
of India v. B. N. Ananthapadmanabhiah(3). But that was a
case of a Delhi Magistrate sanctioning an investigation of
offences committed in Assam and it was held that such an
order was not valid. That decision is. no authority for the
proposition that where an offence is committed in more than
one place the order of every Magistrate within whose.
jurisdiction the offence or part of the offence was
committed was necessary in order to
(1) A. I. R. 1960 Mysore 242.
(2) I. L. R. 1969 Assam & Nagaland 275.
(3) A. I. R. 1971 S. C. 1836.
822
enable the investigation to be carried on. All that is
necessary is that the Magistrate who makes the order under
section 5A should have territorial jurisdiction over the
place where any part of the ingredients of the offence took
place. That criterion is amply satisfied in this case. On
principle also such a contention seems to be devoid of any
substance. The offence of conspiracy or for that matter any
other offence might consist of a series of acts and
incidents spread over the whole country. Very often one
conspirator or one of the offenders might, not have even met
the other conspirator or offender. To accept this
contention would be to hold that the Police should go to
every Magistrate within whose jurisdiction some part of the
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conspiracy or one of the ingredients of the offence has
taken place. We have no hesitation in rejecting it.
He also seemed to have had some doubt as to whether the
order of the Magistrate of Tezpur produced before him was a
genuine one. To say the least, the attitude of the learned
Judge is most surprising. To put it in his own words :
"It does not appear that any order of a
Magistrate form part of the record. But at
the time of hearing, such an order was placed
before me on behalf of the Prosecution. The
application on which the order is said to have
been passed by the Magistrate appears to have
been addressed to the Court of the Magistrate
first class at Tezpur, wherein it was stated
that for preoccupation of the Deputy
Superintendent of Police, the investigation
was sought to be made by an Inspector (A
Police. The petition is unnumbered undated.
What appears curious is that although the
application was made before a Magistrate of
the first class, the order passed is supported
by a seal of the District Magistrate, Darrang.
The order of the Magistrate runs as follows :-
"Paper and F.I.R. seen. Shri H. B. D. Baijal,
Inspector is permitted to investigate the
case."
There is an illegible signature with date 4-2-
63 and below the signature the official
designation has not been stated. It appears
that no order-sheet of the Magistrate has been
produced in this regard and in above circums-
tances, it cannot be unequivocally said that
this document wag obtained in due course of
business in compliance with section 5A of the
Prevention of Corruption Act. Even assuming
that the order is free from doubt, learned
counsel appearing for the petitioners has
urged before me that since the venue of the
offences has been clearly stated in the
charge, the permission given by the Magistrate
for investigation of the offences at Gauhati
is not valid."
8 23
If he had any doubts about the genuineness of the order of
sanction it was his duty to have gone into the matter
thoroughly and satisfied himself whether the order was
genuine, or not. It was his duty to have given a
categorical finding regarding the matter. There should have
been no room allowed for any doubt or suspicion of any
underhand dealing and unfair conduct in a matter of this
kind. It was even alleged on behalf of the, respondents
that an order was produced for the first time before the
learned Judge and it was taken back by the prosecution. If
that was so it proves a woeful lack of care on the part of
the learned Judge. He should have retained the order on
file and called for the necessary records and information in
order to find out whether the order was a genuine one or
not. We have before us the order of the Superintendent of
the Special Police Establishment dated 2-2-63 entrusting the
investigation to Inspector Baijal and directing him to
obtain the necessary permission from a competent Magistrate
for doing so. We have also been shown the papers relating to
the prosecution, papers given to the accused under section
173 of the Code of Criminal Procedure. Item 71 of those
papers relates to the order of sanction dated 4-2-1963 given
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by the Magistrate of Tezpur authorizing the Inspector of the
S.P.E. to investigate. Thus, there is no doubt at all that
Inspecor Baijal had been authorized to investigate into,
this case. It only shows rather superficial way the learned
Judge chose to deal with this matter.
The next question is whether offences under section 161, 165
and 165A of the Indian Penal Code and section 5 (2) of the
Prevention of Corruption Act are cognizable or non-
cognizable offences. This becomes important for the purpose
of deciding whether a sanction under section 196A is
necessary. The sanction necessary under section 6 of the
Prevention of Corruption Act and section 197 of the Code of
Criminal Procedure has been accorded by the Government of
India. What was contended by the respondents before the,
High Court and was accepted by that Court was that these
offences being non-cognizable offences a sanction under
section 196A(2) is necessary and that prosecution without
such sanction is bad. Cognizable offence is defined in
section 4(1) (f) of the Code of Criminal Procedure as an
offence for which a police officer, within or without the
presidency towns, may in accordance with the second
schedule, or under any law for the time bring in force,
arrest without warrant. The argument which appealed to the
learned Judge of the High Court was that as under section 5A
of the Prevention of Corruption Act no officer below the
rank of Deputy Superintendent of Police could investigate or
make any arrest without a warrant in respect of offences
punishable under section 161, 165 or 165A I.P.C. and section
5 of the Prevention of Corruption Act, they were not
offences for which any police officer can arrest without
warrant, and therefore,
824
they are not cognizable offences. The same argument was
repeated before this Court ’by Mr. Tarkunde, emphasising
that "a police officer" means "any police officer" and as
any police officer cannot, under section 5A of the
Prevention of Corruption Act, arrest without warrant but
only officers of and above the rank of Dy. Superintendent,
the offences mentioned in that section are noncognizable
offences. If we pursue the same line of argument and look
at the definition of non-cognizable offence in section 4(1)
(n) which defines non-cognizable offence as an offence for
which a police officer, within or without a Presidency-town,
may not arrest without warrant, it might mean that as these
are cases where i police officer of the rank of Dy.
Superintendent and above can arrest without warrant these
are not non-cognizable offences either. How can there be a
case which is neither cognizable nor-cognizable ? It was
sought to be argued that these offences would ’be cognizable
offences when they are investigated by the Deputy
Superintendents of Police and superior officers and non-
cognizable when they are investigated by officers below the
rank of Deputy Superintendents. We fail to see how an
offence would be cognizable in certain circumstances and
non-cognizable in certain other circumstances. The logical
consequences of accepting this argument would be that if the
offences are investigated by Deputy Superintendents of
Police and superior officers no sanction under section
196A(2) would be necessary but sanction would be necessary
if they are investigated by officers below the rank of
Deputy Superintendents of Police. One supposes the argument
also implies that the fact that an officer- below the rank
of a Deputy Superintendent is authorized by a Magistrate
under the provisions of section 5A would not make any
difference, to this situation. We, do not consider that
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this is a reasonable interpretation to place.
Under Schedule It of the Code of Criminal Procedure offences
under sections 161 to 165 of the Indian Penal Code are shown
as cognizable offences. At the end of that Schedule
offences punishable with death, imprisonment for life or
imprisonment for 7 years and upwards are also shown as
cognizable offences. Under section 5 (2) of the Prevention
of Corruption Act the sentence may extend to seven years.
Therefore, an offence under section 5 of the Prevention of
Corruption Act is according to the provision in Schedule II
to the Code of Criminal Procedure a cognizable offence.
Therefore, the mere fact that under the Prevention of
Corruption Act certain restrictions are placed as to the
officers who are competent to investigate into offences
mentioned in section 5A would not make those offences any
the less cognizable offences. Tile words "notwithstanding
anything contained in the Code of Criminal Procedure" found
at the beginning of section 5A(1) merely carve out a limited
exemption ’from the provisions of the Code of Criminal
Procedure in so far as they limit the class of persons- who
82 5
are competent to investigate into offences mentioned in the
section and to arrest without a warrant. It does not mean
that the whole of the Code of Criminal Procedure. including
Schedule II thereof, is made inapplicable. Under section 5
of the Code of Criminal Procedure all offences under the
Indian Penal Code shall be investigated, inquired into,
tried, and otherwise dealt with according to the
provisions therein contained. Also, all offences under any
other law (which would include the Prevention of Corruption
Act) shall be investigated, inquired into, tried, and
otherwise dealt with according to the same provisions but
subject to any enactment for the time bring in force
regulating the manner or place of investigating, inquiring
into, trying or otherwise dealing, with such offences.
Section 5A of the Prevention of Corruption Act should be
related to this provision in section 5 (2) of the Code of
Criminal Procedure, which limits the application of the
provisions of that Code to be subject to any enactment for
the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing
with such offences. The only change which section 5A of the
Prevention of Corruption Act makes is with regard to
officers competent to investigate and arrest without
warrant; in all other respects the Code of Criminal Proce-
dure applies and, therefore, there is no doubt that all
offences mentioned in section 5A of the Prevention of
Corruption Act are cognizable offences.
The Assam High Court seems to have taken a line of its
own in this matter. In G. K. Apte v. Union of India(")
curiously enough the Bench, of which the learned Judge who
dealt with this case was a member, took the view that
though an offence under section 161 is a cognizable offence,
if investigations were made under section 156 of the Code of
Criminal Procedure there would be no need for a sanction
under section 196A of the Code of Criminal Procedure, and
there can be a conviction under section 161 of the Indian
Penal Code, but if the investigation is made under section
5A of the Prevention of Corruption Act it will be an
investigation into a non-cognizable offence and there should
be a sanction under section 196A for the trial following
such investigation. For this conclusion the decision of
this Court in H. N. Rishbud & Inder Singh v. The State of
Delhi (2) was relied upon. We can see nothing in that case
to support this conclusion. Nor are we able to see how if
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the investigation into an offence of misconduct punishable
under section 5(2) is done by a police officer of high rank
the offence is cognizable and if investigated by ail officer
of a lower rank it is non-cognizable. That cannot be a
proper criterion for deciding whether an offence is
cognizable or non-cognizable. Unless there are clear and
compelling reasons
(1) A.I.R 1980 Assam & nagaladd 43.
(2) A. I. R. 1965 S. C. 196.
5-L797Sup.C. 1./73
826
to hold otherwise the division of offences given in the Code
of Criminal Procedure as cognizable and non-cognizable
should be given effect to. When the same Code makes
sanction under S. 196A necessary for trial of non-cognizable
offences it clearly contemplates non-cognizable offences as
defined in the Code. There is no justification for relying
upon extraneous considerations and far-fetched reasoning in
order to get over the effect of these provisions.
We may now refer to certain decisions of various High Courts
on this point. In Taj Khan v. The State(") it was held
"The fact that the power to investigate or to
arrest without warrant has been circumscribed
by certain conditions (which conditions were
clearly provided for the purpose of
safeguarding public servants from harassment
at the hands of subordinate police officers)
under the proviso. to S. 3 of the said Act
cannot lead to the conclusion that such
offence is non-cognizable."
In Ram Rijhumal v. The State ( 2) it was
held :
"The provisions of S. 3, Prevention of
Corruption Act can only have one meaning, and
the meaning is that an offence under S. 165A
of the Penal Code has to be deemed to be a
cognizable- offence for the purpose of ,the
Code of Criminal Procedure. It is only
because the Legislature enacted S. 5-A of the
Prevention of Corruption Act that, so far as
the Presidency town of Bombay was concerned,
no police officer below the rank of a
Superintendent of Police could in the case of
an offence under S. 165-A of the Penal Code,
investigate it without the order of a
Presidency Magistrate. There is nothing in
the language of S. 5-A which would suggest
that an offence under S. 165-A of the Penal
Code is not to be treated as a cognizable
offence."
In Gulabsingh v. State() it was held that
"offence under S. 161, I.P.C. is a cognizable
offence. Its nature is not Affected by either
S. 3 or S. 5A of the Prevention of Corruption
Act. The requirement that in a cognizable
offence, a police officer should be able to
arrest without warrant, is without any limita-
tion and section 5A cannot be split. up to
mean that an offence can be cognizable in
reference to one officer and not in reference
to another."
(1) A. I R. 1956 Rajasthan 37. (2) A. I R. 1958 Bombay 125.
(3) A. I R. 1962 Bombay 263.
8 2 7
The learned Judges specifically dissented from the decision
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in Union of India v. Mahesh Chandra("). In Public
Prosecutor v. Shaik Sheriff (2) it was held that "these
offences cannot be treated as non-cognizable offences when
investigated by an officer below the rank of Deputy
Superintendent of Police simply on the ground that such
investigation cannot be done without the order of a Presi-
dency Magistrate or a Magistrate of the First Class. In the
same way, offences under section 5 of the Act cannot be
treated as non-cognizable even when investigated by a low
rank officer. Thus, the provision in S. 5A is of the nature
of a special provision which applies to offences specified
therein which are cognizable offences including those under
section 5 under all circumstances." They also referred to
the decision in Union of India v. Mahesh Chandra (supra) to
the effect that an offence under S. 161 I.P.C. and under
sub. s. 2 of S. 5, Prevention of Corruption Act is cogni-
zable so far as officers of the rank of a Deputy
Superintendent of Police and above are concerned, but so far
as the officers below the rank of Deputy Superintendent of
Police are concerned the said offences are non-cognizable in
so far as they cannot investigate them without the
permission of a Magistrate of’ the First Class, and held
that :
"the learned Judges only intended to emphasise
the provision in S.5-A and chose to refer to
it as a non-cognizable aspect of the offences
comprised in the Act and to describe that
aspect also as non-cognizable for the limited
purpose of the provision in S. 5-A."
Thus, the preponderance of opinion of the various High
Courts is in favour of the view we are taking.
We are, therefore, clearly of opinion that the offences
under sections 161, 165 and 165A of the Indian Penal Code
and section 5 of the Prevention of Corruption Act are
cognizable offences and there is no question of their being
cognizable if investigated by a Deputy Superintendent of
Police and non-cognizable when investigated by an Inspector
of Police. Nor can there be any question of those offences
being cognizable if they are investigated under section 156
of the Cr. P.C. but not when investigated in accordance
with the provisions of section 5A of the Prevention of
Corruption Act. The question, therefore, of the need for a
sanction under section 196A does not arise. Consequently,
the need to order re-investigation or to begin the trial
again after the sanction under section 196A is obtained, and
the consequent inordinate delay and harassment of the
officers concerned, reasons that weighed with the learned
Single Judge for quashing the charges, does not arise. It
may incidentally be mentioned that the respondents took
nearly three years before they moved the High
(1) A. 1. R. 1957 Madhya Bharat 43.
(2) A. 1. R. 1965 A. P. 372.
828
Court for quashing the charges and are, thus, to a
considerable extent responsible for the delay.
On behalf of Mr. Gupta it was argued that he cannot be tried
along with the two Army officers. Under section 6 of the
Criminal Law Amendment Act 1952 the Special Judge may try
any conspiracy to commit or any attempt to commit or any
abetment of any of the offences punishable under section
161, 165 or 165A of the Indian Penal Code or sub-section (2)
of section 5 of the Prevention of Corruption Act, and under
sub-section(3) of section 7 of the same Act a special judge,
when trying any case, may also try any offence other than an
offence specified in section 6 with which the accused may,
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under the Code of Criminal Procedure, 1898, be charged at
the same trial. Under section 235 of the Code of Criminal
Procedure if in one series of acts so connected together as
to form the same transaction, more offences than one are
committed by the same person, he may be charged with, and
tried at one trial for, every such offence, and under
section 239 persons accused of the same offence committed in
the course of the same transaction, as well as persons
accused of an offence and persons accused of abetment, or of
an attempt to commit such offence, may be charged and tried
together. In The State of Andhra Pradesh v. Kandimalla
Subbaih & Anr.(1) this Court observed :
"No doubt, the offence mentioned in charge No.
1 is alleged to have been committed not by
_just one person but by all the accused and
the question is whether all these persons can
be joint tried in respect of all these
offences. To this kind of charge S. 239 would
apply. This section provides that the
following persons may be charged and tried
together, namely :
(1) persons accused of the same offence
committed in the course of the same
transaction;
(2) persons accused of an offence and
persons accused of abetment or an attempt to
commit such an offence;
(3) persons accused of different offences
committed in the course of the same
transaction.
Clearly, therefore, all the accused persons
could be tried together in respect of all the
offences now comprised in charge No. 1."
In that case the first accused was a public servant and the
other accused were private individuals to whom the first
accused was alleged to have sold transport permit books
intended to be issued
(1) [1962] 1 S. C. R. 194.
829
to Central Excise Officers for granting permits to persons
applying bona fide for licences to transport tobacco. This
Court also pointed out that "sub-s. (3) of s. 7 provides
that when trying any case, a special judge may also try any
offences other than an offence specified in s. 6 with which
the accused may under the Code of Criminal Procedure, 1898
be charged at the same trial, and clearly, therefore,
accused no. 1 could be tried by the Special Judge for
offences under s. 120B read with ss. 466, 467 and 420
J.P.C., and similarly the other accused who are, said to
have abetted these offences could also be tried by the
Special Judge." There is, therefore, no objection to Mr.
Gupta being tried along with the two Army officers.
Though in the revision petitions filed before the High Court
the question as to whether on the evidence produced before
the Special Judge the offences with which the respondents
had been charged could be said to have been prima facie
established, was raised, the learned Single Judge has not
dealt with that question apparently because it was not
argued before him. We do not, therefore, propose to say
anything about the merits of the case.
It is not necessary to refer to the, decision in Madan Lal
v. state of Punjab(1) and Bhanwar Singh v. Rajasthan(2)
which are relied upon on behalf of the appellants in the
view that we have taken that all the offences with which
the, accused are charged are cognizable offences, and
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therefore, the question whether charges which require
sanction under s, 196A could be tried alongwith charges
which did not require such sanction and the entire charges
are vitiated for want of sanction, as held by the learned
Single Judge, does not arise.
The appeals are allowed and the order of the learned Single
Judge is set aside. The Special Judge will now proceed to
deal with the cases and dispose of them as expeditiously as
possible as the matter has been pending for a long time.
V.P.S. Appeals allowed.
(1) [1967] 3 S. C. R. 439. (2) [1968] 2 S. C. R. 528.
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