Report No. 47

11.14. Power to direct investigation or to implicate another person.-

We are also of the view that once a Court has taken cognizance, it should have power to direct investigation against a person who is not the original accused or to implicate him. The absence of the requisite sanction as regards that accused should not matter. We propose a provision which, of course, will be confined to the offences with which this Report is concerned. The subsequent procedure will be governed by section 351, Criminal Procedure Code. Accordingly, the following section be inserted in the Acts concerned:-

Section to be inserted in all the Acts.

Power to direct investigation or implicate another person.

(1) Where, in the course of an inquiry into or trial of an offence under this Act, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may-

(a) proceed against such person for the offence which he appears to have committed, notwithstanding the absence of any sanction or consent for prosecution1 or complaint required in respect of that person; and the provisions of section 351 of the Code of Criminal Procedure, 1898, shall thereupon apply2; or

(b) direct an investigation into the guilt of such other person by the competent officer, and thereupon the officer directed by the Court shall proceed to investigate into the matter, and shall, for the purpose, have the same powers and follow the same procedure as he had or followed for the investigation into the guilt of the accused.

Explanation:-Reference in this section to a sanction or consent for prosecution or complaint required includes reference to any requirement that the prosecution shall be at the instance of a specified authority, or that the complaint shall be by a specified person or with the sanction of a specified person or any requirement of a similar nature3.

1. Where the requirement is in terms of complaint etc., the wording will be modified.

2. Section 351, Criminal Procedure Code corresponds to Criminal Procedure Code Bill, 1970. Clause 326.

1. The Explanation will not be needed in all Acts, but will be needed in Acts in which requirements of different types co-exist.

11.15. With reference to the requirement of the sanction of the Collector of Customs under section 137, Customs Act, a Minister of the Union Government has, during our oral discussions with him, stated that the present rigid provision causes difficulty in cases where the investigation is completed by an officer of a department different from the department whose officers are authorised to sanction the prosecution. It was suggested that this difficulty should be removed by a suitable amendment.

Having regard to the high quarter from which the suggestion came to us, we assume that the Government would, as a matter of policy, be in agreement with the suggestion. The object behind the suggestion could be achieved by inserting at the end of section 137(1) of the Customs Act, the words "or of any other officer authorised by the Central Government in this behalf", and we recommend accordingly. After the amendment, the relevant provision will read as follows1:-

"137(4 No court shall take cognizance of any offence under section 132, section 133, section 134 or section 135, except with the previous sanction of the Collector of Customs or of any other officer authorised by the Central Government in this behalf"

1. Section 137(1), Customs Act, 1962.