Holding that unless prejudice was caused to the cause of the accused, the Supreme Court in a recent decision [Ashok Tshering Bhutia v. State of Sikkim] declared that mere lack of sanction or improperly initiated investigation was not fatal for the prosecution to obtain a conviction. The Court was dealing with the correctness of the decision of the High Court of Sikkim which had upheld conviction of a person under the Prevention of Corruption Act, 1988. One of the contentions raised before the Court was that the sanction of the proper officer had not been obtained and thus the investigation had been vitiated.
Turning down the challenge, the Supreme Court noted the position of law on this aspect in the following terms;
7. Much has been argued on the issue that investigation has been conducted without a proper order in writing, by an officer not authorised otherwise and sanction has been granted under Section 19 of the PC Act 1988 vide order dated 5.4.1997, without taking into account the assets and income shown in Ext. D-4, though the said assets represented known sources of income within the meaning of Section 13(1)(e) and the Explanation attached thereto. It has further been submitted that an invalid sanction cannot be the foundation for the prosecution and thus, the entire investigation and trial stood vitiated as the investigation without proper authorisation and invalid sanction goes to the root of the jurisdiction of the court and so the conviction cannot stand.
8. The issues raised hereinabove are no more res integra. The matter of investigation by an officer not authorised by law has been considered by this Court time and again and it has consistently been held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the Court or procedure relating to cognizance or trial. (Vide H.N. Rishbud & Anr. v. State of Delhi, AIR 1955 SC 196; Munnalal v. State of U.P., AIR 1964 SC 28, Khandu Sonu Dhobi & Anr. v. The State of Maharashtra, AIR 1972 SC 958; State of M.P. v. Bhooraji & Ors., AIR 2001 SC 3372; State of M.P. v. Ramesh Chand Sharma, (2005) 12 SCC 628; and State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533).
9. In Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201, a case under the provisions of Section 20 of Terrorist and Disruptive Activities (Prevention) Act, 1987, this Court considered the issue as to whether an oral direction to an officer to conduct investigation could meet the requirement of law. After considering the statutory provisions, the Court came to the conclusion that as oral approval was obtained from the competent officer concerned, it was sufficient to legalise the further action.
10. In State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, (2006) 7 SCC 172, a two-Judge Bench of this Court had taken a contrary view without taking note of the earlier two-Judge Bench judgment in Kalpnath Rai (supra) and held as under:
“When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoyed with a duty to pass written orders.
However, the Court taking note of subsequent proceedings recorded its conclusions as under:
‘It is true that only on the basis of illegal investigation a proceeding may not be quashed unless miscarriage of justice is shown, but in this case as we have noticed hereinbefore, the respondent had suffered miscarriage of justice as the investigation made by PW 41 was not fair’.”
11. In the instant case, the officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. It is evident from the above that the judgments in Kalpnath Rai (supra) and Surya Sankaram Karri (supra) have been decided by two Judge Benches of this Court and in the latter judgment, the earlier judgment of this Court in Kalpnath Rai (supra) has not been taken note of. Technically speaking it can be held to be per incuriam. There is nothing on record to show that the officer’s statement is not factually correct. We have no occasion to decide as which of the earlier judgments is binding. It is evident that there was a direction by the Superintendent of Police to the officer concerned to investigate the case. Thus, in the facts and circumstances of the case, the issue as to whether the oral order could meet the requirement of law remains merely a technical issue. Further, as there is nothing on record to show that the investigation had been conducted unfairly, we are not inclined to examine the issue further.
12. Same remained the position regarding sanction. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19 (1) of the PC Act 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance. (Vide Kalpnath Rai (supra); State of Orissa v. Mrutunjaya Panda, AIR 1998 SC 715; State by Police Inspector v. Sri T. Venkatesh Murthy, (2004) 7 SCC 763; Shankerbhai Laljibhai Rot v. State of Gujarat, (2004) 13 SCC 487; Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274; and M.C. Mehta v. Union of India & Ors. (Taj Corridor Scam), AIR 2007 SC 1087).
13. In State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604, this Court dealing with the same provisions held that a conjoint reading of the main provision, Section 5-A(1) (new Section 17) and the two provisos thereto, shows that the investigation by the designated police officer was the rule and the investigation by an officer of a lower rank was an exception. It has been ruled by the Court in several decisions that Section 6-A (new Section 23) of the Act was mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality, but that illegality committed in the course of an investigation, does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case has in fact been taken and the case has proceeded to termination, the validity of the proceedings is not vitiated unless a miscarriage of justice has been caused as a result of the illegality in the investigation. In the facts and circumstances of the case, we are also not willing to examine the correctness of submissions made by Mr. Bobde in respect of segregation of period covered by two Acts and as to whether ratio of the judgment of this Court in State of Maharashtra v. Krishnarao Dudhappa Shinde, (2009) 4 SCC 219, runs counter to the ratio in State of Maharashtra v. Kaliar Koil Subramaniam Ramaswamy, AIR 1977 SC 2091, wherein the earlier judgment in Sajjan Singh v. State of Punjab, AIR 1964 SC 464, had been explained.
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