The State of Madhya Pradesh Vs.
Mubarak Ali  INSC 12 (3 February 1959)
CITATION: 1959 AIR 707 1959 SCR Supl. (2) 201
CITATOR INFO :
D 1964 SC 28 (7) REI 1964 SC 221 (10) R 1968
SC1292 (5,7) D 1971 SC 508 (15) RF 1971 SC1525 (14) R 1972 SC 886 (5) R 1972
SC2077 (14) R 1973 SC 913 (14) RF 1984 SC 718 (21) RF 1992 SC 604
Criminal Law-Public servant receiving
bribe-Investigation by officer below rank of Deputy Superintendent of PolicePermission
to investigate granted by Magistrate-Order not disclosing material before
Magistrate nor disclosing reasons for order-Permission, if
invalid-Investigation, scope ofPrevention of Corruption Act, 1947 (2 of 1947).
s. 5A-Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 4(1).
Section 5A of the Prevention of Corruption
Act, 1947, provided: " No police officer below the rank of a deputy
Superintendent shall investigate any offence punishable under s. 161, s. 165 or
s. 165A of the Indian Penal Code or under s. 5(2) of the Act without the order
of a magistrate of the first class ............".
(1) (1880) L.R. 7 I.A. 107.
26 202 On January 11, 1955, B, the manager of
a company, gave information to the Sub-Inspector of Police, Special Police
Establishment, that the respondent, an Assistant Station Master, was demanding
a bribe for sending the goods belonging to the company by rail. The
Sub-Inspector, after assisting B to trap the respondent, came on the scene,
questioned the latter, searched his person and recovered the marked notes and
other articles from him. The Sub-Inspector filed an application before the
District Magistrate, stating that he had been deputed to investigate the case
and the permission might be given to him to do so under s. 5A of the Act. On
the application the Magistrate passed the order "permission given."
Neither the application nor the order made thereon disclosed that any material
was placed before the Magistrate on the basis of which he gave permission. A
charge-sheet was filed before the Special judge. The respondent filed
objections questioning, inter alia, the validity of the Magistrate giving
permission to the SubInspector to make the investigation. The Special judge
disallowed the objection. On revision, the High Court set aside the order of
the Special judge with a direction that " in order to rectify the defects
and cure the illegality " he should order the Deputy Superintendent of
Police to carry on the investigation himself while the case remained pending on
his file. The State preferred an appeal against the order of the High Court by
special leave:Held, that the statutory safeguards under S. 5A of the Prevention
of Corruption Act must strictly be complied with for they were conceived in
public interest and were provided as a guarantee against frivolous and
A Magistrate cannot surrender his discretion
to a police officer, but must exercise it having regard to the relevant
material made available to him at the stage of granting permission. He must
also be satisfied that there is sufficient reason owing to the exigencies of
the administrative convenience to entrust a subordinate officer with the
Where an officer other than the designated
officer seeks to make an investigation, he should get order of a Magistrate
empowering him to do so before he proceeds to investigate, and it is desirable
that the order giving the permission should ordinarily on the face of it
disclose the reasons for giving permission.
Where objection is taken by the accused that
the order giving permission was invalid, the prosecution, at the earliest
opportunity, must adduce evidence to support the contention that the Magistrate
gave the permission only after having satisfied himself on the advisability of
doing so on the material placed before him.
H. N. Rishbud & Inder Singh v. State of
Delhi,  1 S.C.R. 1150 and Viswabhusan Naik v. The State of Orissa, 
1 S.C.R. 92, relied on.
203 Held, further, that an investigation
starts after the police officer receives information in regard to an offence,
and that as under s. 5 Of the Act attempt to obtain from any person any
gratification is in itself an offence, any steps taken by the Sub-Inspector
after the information was given to him amounted to investigation.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 141 of 1958.
Appeal by special leave from the judgment and
order dated November 28, 1957, of the Madhya Pradesh High Court in Criminal
Revision No. 78 of 1957, arising out of the judgment and order dated August 21,
1957, of the Court of Special Judge at Gwalior in File No. 2/57 Special Case.
G. C. Mathur and R. H. Dhebar, for the
The respondent did not appear.
1959. February 3. The Judgment of the Court
was delivered by SUBBA RAO, J.-This is an appeal by special leave against the,
Judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special
Judge, Indore, to order the Deputy Superintendent of Police to carry on the investigation
afresh. The facts are simple.
One Shri Mohinder Nath Bhalla was the manager
of Daisy Sewing Machine Co. Ltd., Bhopal. On January 11, 1955, between 12 and 1
p. m., he contacted the Sub-Inspector of Police, Special Police Establishment,
Gwalior, and gave him the following information: The company had opened their
stall in the Gwalior Mela and he (Shri Bhalla) had to book empty wooden cases
of machine and machine parts from Gwalior Mela, to Now Delhi. When lie went to
the station to enquire for booking the said cases, the Station Master demanded
annas ten for each case as illegal gratification, but he did not agree to it.
Subsequently, the Assistant Station Master agreed to accept annas eight for
each case and asked him to bring the wooden cases between 2 and 4 p.
m. on the same day, i.e., January 11, 1955.
On this allegation lie requested the police to take action " to stop the
said sort of 204 corruption ". The police officer went along with the
informant to his stall at Gwalior Mela and saw the twenty wooden cases-twelve
big and eight small-ready for booking.
The said Shri Bhalla gave the police officer
a typed complaint signed by him and duly attested by two witnesses.
With the assistance of the police officer, a
trap was laid.
The numbers of the rupee notes intended to be
given as bribe to the Assistant Station Master were entered in a memorandum
which was attested by witnesses. The said rupee notes were given to Shri Bhalla
in the presence of the witnesses. Shri Bhalla was instructed to pay the amount
to the Assistant Station Master when demanded by him in such a manner that the
witnesses could overhear the conversation and also see the Assistant Station
Master taking the bribe. He was also told that on his giving a signal, the
police would come on the scene. The plan was carried out in detail as agreed.
The Assistant Station Master, after some
bargaining, took the bribe, and after the act of bribery was completed, Shri
Bhalla gave the prearranged signal. The Sub-Inspector then went to the Station
Office and disclosed his identity to the Assistant Station Master in the
presence of witnesses and asked him to produce the money taken by him as bribe.
The Assistant Station Master, when questioned by the SubInspector, gave him his
name and also produced the notes which he had kept in his pocket. The police
officer took those notes and counted them. The numbers on those notes tallied
with those noted in the memorandum. He then searched the person of the
Assistant Station Master and secured the articles found on him. He also
searched the person of Shri Bhalla and took from his shirt two currency notes,
which he did not give to the Assistant Station Master, as the bargain was
struck at a smaller amount, and secured the same. The numbers of those notes also
tallied with the corresponding numbers noted in the memorandum.
Thereafter, a memorandum of the articles
recovered was prepared in the presence of the witnesses and was duly attested
by them. The forwarding note, together with the record copy of the 205 R/R
prepared in respect of the booking of the twenty wooden cases to New Delhi, was
taken possession of and another memorandum was prepared in regard to them. An
inventory of the twenty wooden cases lying on the platform near the weighing
machine as booked by the Assistant Station Master was also prepared and the
same was attested by the witnesses. The Sub-Inspector, having regard to the
aforesaid facts, came to the conclusion that the facts disclosed offences
punishable under ss. 120-B and 161 of the Indian Penal Code and s. 5(2) of the
Prevention of Corruption Act, 1947 (2 of 1947), had been committed by the
Assistant Station Master, Shri Mubarak Ali, and the pointsman, Shri Mool Chand,
of Golakamandir railway station.
On the same day he sent a report of the
aforesaid facts to the Special Police Establishment Office, Madhya Bharat. The
office registered it on January 14, 1955, in its register.
Seven days thereafter, on January 21, 1955,
the SubInspector filed an application before the Additional District Magistrate
(Judicial), Gwalior, asking for permission to investigate the offence under the
aforesaid sections. The record does not disclose what further steps were taken
by the Sub-Inspector after he obtained the said permission from the Additional
District Magistrate. On October 1, 1955, a charge-sheet was filed before the
Special Judge, Anti-Corruption, Indore. It appears from the record that soon
after the case was taken up for trial, the respondent filed objections
questioning, inter alia, the validity of the order of the Additional District
Magistrate giving permission to the Sub-Inspector to make the investigation.
But the scope of the objections is not clear as they have not been placed
before us. It appears that the Special Judge intended to take evidence on the
question of delegation of power of investigation, but the prosecution applied
for adjournment on the ground that an appeal had been filed in the High Court
against a similar order directing the prosecution to give evidence on the said question
and the same was pending there. The learned Special Judge, though inclined not
to give the adjournment, made an order giving an adjournment 206 of three weeks
on December 3, 1955, on the ground that " the Special Police Establishment
Office might not have any grievance on that account ". We do not know what
transpired between December 3, 1955, and the date of disposal of the objections
by the Special Judge, i. e., August 21, 1957. On August 21, 1957, the learned
Special Judge made an order discharging Shri Mool Chand, the points man, and
charging Shri Mubarak Ali, the Assistant Station Master, under s. 161 of the
Indian Penal Code. By the said order the learned Judge, presumably an officer
different from the one who gave the adjournment in 1955, disallowed the
objection of the accused on the ground that on the date when the Magistrate
gave the sanction, there were many papers in connection with a case against the
accused, on observing which the Magistrate could have satisfied himself
whether-there was a prima facie case or not against the accused and that there
was no reason to believe that at the time of giving the sanction, the
Magistrate did not peruse the papers. The accused preferred a Revision against
the said order to the High Court of Madhya Pradesh. The High Court came to the
conclusion that the Sub-Inspector applied for permission ten days after
investigation had started and that the Magistrate did not satisfy himself that
there were good and sufficient reasons for authorising the officer of a lowerrank
to conduct the investigation but had given the permission as a mere matter of
routine. In the result, the High Court set aside the order of the Special Judge
with a direction that in order to rectify the defects and cure the illegality
he should order the Deputy Superintendent of Police to carry on the
investigation himself while the case remains pending on his file ". The
State, preferred the present appeal against the said order of the High Court.
Learned Counsel, appearing for the State, raised
before us two points: (i) the High Court was not justified in holding that the
Magistrate gave the permission as a mere matter of routine without satisfying
himself as to the advisability of giving such permission; (ii) the High Court
was wrong in holding 207 that the investigation started ten days prior to the
obtaining of permission of the Magistrate by the Sub Inspector.
To appreciate the first contention, it is
necessary to set out some of the relevant provisions of The Prevention of
Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act.
Section 3 (as it stood before the Prevention
of Corruption (Amendment) Act, 1955 (50 of 1955):
"An offence punishable under section 161
or section 165 or section 165A of the Indian Penal Code (Act 45 of 1860) shall
be deemed to be a cognizable offence for the purposes of the Code of Criminal
Procedure, 1898 (Act 5 of 1898), notwithstanding anything to the contrary
contained therein ".
Section 4. " (1) Where in any trial of
an offence punishable under section 161 or section 165 of the Indian Penal Code
(Act 45 of 1860), it is proved that an accused person has accepted or obtained,
or has agreed to accept or attempted to obtain, for himself or for any other
person, any gratification (other than legal remuneration) or any valuable thing
from any person, it shall be presumed unless the contrary is proved that he
accepted or obtained, or agreed to accept or attempted to obtain, that
gratification or that valuable thing, as the case may be, as a motive or reward
such as is mentioned in the said section 161, or, as the case may be, without
consideration or for a consideration which he knows to be inadequate ".
The Act was passed, as the preamble
indicates, to make more effective provisions for the prevention of bribery and
corruption among public servants. It introduced a definition of the offence of
criminal misconduct in discharging an official duty and new rules of
presumption against accused in the case of the said offence. But in the year
1952, by Act 59 of 1952, presumably on the basis of the experience gained, s.
5A was inserted in the Act to protect the public servants against harassment
If it was in the interest of the public that
corruption should be eradicated, it was equally in the interest of the public
that honest public servants should be able to 208 discharge their duties free
from false, frivolous and malicious accusations. To achieve this object, ss. 5A
and 6 introduced the following two safeguards: (1) no police officer below the
rank-(a) in the presidency towns of Madras and Calcutta, of an assistant
commissioner of police, (b) in the presidency town of Bombay, of a
superintendent of police and (c) elsewhere, of a deputy superintendent of
police, shall investigate any offence punishable under s. 161, s. 165 or s.
165A of the Indian Penal Code or under sub-s. (2) of s. 5 of the Act, without
the order of a presidency magistrate or a magistrate of the first class, as the
case may be, or make any arrest there for without a warrant-see s. 5A; (2) no
court shall take cognizance of an offence punishable under s. 161 or s. 164 or
s. 165 of the Indian Penal Code or under s. 5(2) of the Act, alleged to have
been committed by a public servant, except with the previous sanction, of the
appropriate Government-see s. 6. These statutory safeguards must be strictly
complied with, for they were conceived in public interests and were provided as
a against frivolous and vexatious prosecutions. While in the case of an officer
of assured status and rank, the legislature was prepared to believe them
implicitly, it prescribed an additional guarantee in the case of police
officers below that rank, namely, the previous order of a presidency magistrate
or a magistrate of the first class, as the case may be. The magistrate's status
gives assurance to the bonafide8 of the investigation. In such circumstances,
it is self-evident that a magistrate cannot surrender his discretion to a
police officer, but must exercise it having regard to the relevant material
made available to him at that stage. He must also be satisfied that there is
sufficient reason, owing to the exigencies of administrative convenience, to
entrust a subordinate officer with the investigation. This Court in H. N.
Rishbud and Inder Singh v. The State of Delhi (1) emphasised the necessity to
adhere strictly to the provisions of s. 5A of the Act. Jagannadhadas, J., who
delivered the judgment of the Court, observed at p. 1159:
(1)  1 S.C.R. 1150.
209 " When, therefore, the Legislature
thought fit to remove the protection from the public servants, in so far as it
relates to the investigation of the offences of corruption comprised in the
Act, by making them cognisable, it may be presumed that it was considered
necessary to provide a substituted safeguard from undue harassment by requiring
that the investigation is to be conducted normally by a police officer of a
designated high rank. Having regard therefore to the peremptory language of
subsection (4) of section 5 of the Act as well as to the policy apparently
underlying it, it is reasonably clear that the said provision must be taken to
be mandatory ".
After adverting to the argument advanced on
behalf of the State, learned Judge closed the discussion thus at p. 1162:
"We are, therefore clear in our opinion
that section 5(4) and proviso to section 3 of the Act and the corresponding
section 5-A of Act LIX of 1952 are mandatory and not directory and that the
investigation conducted inviolation thereof bears the stamp of
This Court again considered the scope of s. 6
of the Act in Biswabhusan Naik v. The State of Orissa (1). One of the questions
raised there was that the sanction given by the Government was invalid. In
rejecting that contention Bose, J., observed at p. 95 :
" The judgment of the Judicial Committee
relates to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, but
the principles apply here. It is no more necessary for the sanction under the
Prevention of Corruption Act to be in any particular form, or in writing or for
it to set out the facts in respect of which it is given than it was under
clause 23 of the Order which their Lordships were considering. The desirability
of such a course is obvious because when the facts are not set out in the
sanction proof has to be given aliunde that sanction was given in respect of
the facts constituting the offence charged, but an (1) 1 S.C.R. 92.
27 210 omission to do so is not fatal so long
as the facts can be, and are provided in some other way ".
While the former decision emphasises the
importance of the protection given by the Act to public servants against
harassment, the latter decision points out the desirability of giving all the
necessary facts in an order giving sanction-the same applies to an order of a
Magistrate-and also the necessity of proof aliunde of the said facts in case
the facts are not disclosed in the sanction. Applying the said two principles,
we must hold that in a case where an officer other than the designated officer,
seeks to make an investigation, he should get, the order of a Magistrate
empowering him to do so before he proceeds to investigate and it is desirable
that the order giving the permission should ordinarily, on the face of it,
disclose the reasons for giving the permission. For one reason or other, if the
said salutary practice is not adopted in a particular case, it is the duty of
the prosecution to establish, if that fact is denied, that the Magistrate in
fact has taken into consideration the relevant circumstances before granting
the permission to a subordinate police officer to investigate the case.
In the present case, though objection was
taken by the accused at the earliest stage in 1955 on the ground that the order
giving permission was invalid no attempt was made by the prosecution, though
years have elapsed between the date of the petition and that of the order of
the Sessions Judge, to adduce any evidence to support the contention that the
Magistrate gave the permission to the Sub-Inspector only after satisfying
himself on the advisability of doing so on the material placed before him. The
only material that was placed before the Sessions Judge was the application
filed by the Sub-Inspector before the Magistrate seeking the said permission
and the order made by him thereon. In that application the Sub-Inspector stated
that he had been deputed to investigate the case and therefore permission might
be given to him to do so under s. 5-A of the Act. On that application, the
Magistrate passed the order " permission given ". Neither the
application 211 nor the order made thereon discloses that any material was
placed before the Magistrate on the basis of which he gave the permission. Ex
facie, it appears to us, just like it appeared to the High Court, that the Magistrate
did not realise the significance of his order giving permission, but only
mechanically issued the order on the basis of the application which did not
disclose any reason, presumably because he thought that what was required was
only a formal compliance with the provisions of the section. A request was made
before the High Court that an opportunity should be given to the prosecution to
enable them to produce the necessary evidence to support the order of the
But the learned Judge of the High Court
rightly did not accede to that belated request. We, therefore, without any
hesitation, agree with the High Court that the provisions of s. 5A of the Act
have not been strictly complied with in this case.
In this view no other question arises for
But as the learned Counsel appearing for the
State contended that the observations of the learned Judge of the High Court
that permission of the Magistrate was obtained ten days after the investigation
was started was wrong, it would be as well that we considered the argument
briefly. Section 4(1) of the Code of Criminal Procedure defines "
investigation as to include all the proceedings under that Code for the
collection of evidence conducted by the police officer or other persons other than
a Magistrate who is authorised by the Magistrate in this behalf. Chapter XIV of
the Code prescribes the procedure for investigation.
Investigation starts after the police officer
receives information in regard to an offence. Under the Code "
investigation consists generally of the following steps: (i) proceeding to the
spot; (ii) ascertainment of the facts and circumstances of the case; (iii)
discovery and arrest of the suspected offender; (iv) collection of evidence
relating to the commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the reduction of
their statements into writing, if 212 the officer thinks fit, (b) the search of
places of seizure of things considered necessary for the investigation and to
be produced at the trial; and (v) formation of the opinion as to whether on the
material collected there is a case to place the accused before a Magistrate for
trial and if so taking the necessary steps for the same by the filing of a
charge-sheet under s. 173."See H. N. Rishbud and Inder Singh v. The State
of Delhi (1). From the narration of facts given supra, it would be seen that in
the present case Shri Bhalla gave information to the Sub-Inspector on January
11, 1955, as regards the attempt by the Station Master as well as the Assistant
Station Master to take bribe from him.
Under s. 5 of the Act, attempt to obtain from
any person for himself or for any other person any gratification is in itself
an offence and therefore the information certainly related to an offence.
Thereafter, the Sub-Inspector, after assisting Shri Bhalla to trap the accused,
came on the scene, questioned the accused, searched his person and recovered
the marked notes and other articles from him ; he searched the person of the
informant and recovered the other notes marked but not given to the accused ;
he took possession of the twenty wooden boxes intended to be booked and the
forwarding note together with the record copy of the R/R; he got prepared
relevant memoranda for the aforesaid recoveries and got them duly attested by
witnesses; and thereafter on the basis of his investigation he sent a report to
the Special Police Establishment Office, Indore.
We do not know on the material placed before
us what further things he did in the matter of investigation between the 14th
and 21st when be obtained the permission of the District Magistrate. In the
circumstances, we must hold, agreeing with the High Court that the
investigation in this case was started by the Sub-Inspector on the 11th, i.e.,
ten days prior to his obtaining permission of the Magistrate.
The appeal fails and is dismissed.
(1) 1 S.C.R. 1150.