Authorisation to Investigate under Prevention of Corruption Act

Authorisation to investigate u/s 17 of PC Act:

The truth and veracity of the authorisation order not being in issue, the failure to file it along with the charge­sheet was an omission constituting a procedural lapse only. The rejection of the first application on 11.03.2008 not having been ordered on merits, but for failure to furnish a satisfactory explanation for the delay, Section 362 Cr.P.C has no relevance on facts. We are, therefore, of the opinion that there was no impediment in the appellant seeking to bring the same on record subsequently under Section 173(2)(5)(a) of the Code. The consequences of disallowing the procedural lapse were substantive in nature.

Failure to produce authorisation alongwith chargesheet:

In Bihar State Electricity Board vs. Bhowra Kankanee Collieries Ltd., 1984 Supp SCC 597, the Supreme Court opined:

“6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction….. The question is whether the degree of negligence is so high as to bang the door of court to a suitor seeking justice. In other words, should an investigation of facts for rendering justice be peremptorily thwarted by some procedural lacuna?”

The failure to bring the authorisation on record, as observed, was more a matter of procedure, which is but a handmaid of justice. Substantive justice must always prevail over procedural or technical justice. To hold that failure to explain delay in a procedural matter would operate as res judicata will be a travesty of justice considering that the present is a matter relating to corruption in public life by holder of a public post. The rights of an accused are undoubtedly important, but so is the rule of law and societal interest in ensuring that an alleged offender be subjected to the laws of the land in the larger public interest. To put the rights of an accused at a higher pedestal and to make the rule of law and societal interest in prevention of crime, subservient to the same cannot be considered as dispensation of justice. A balance therefore has to be struck. A procedural lapse cannot be placed at par with what is or may be substantive violation of the law.

In Sakshi vs. Union of India, (2004) 5 SCC 518, the Court observed:

“31.…. There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.”

The High Court was exercising inherent jurisdiction in the interest of justice and to prevent the abuse of the process of law. In the facts and circumstances of the case, the High Court ought to have exercised its inherent powers to allow the bringing of the authorisation order on record rather than to have adopted a narrow and pedantic approach to its own jurisdiction given the provisions of Section 173(2)(5)(a), Cr.P.C., as observed in R.S. Pai (supra):

“From the aforesaid sub­sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge­sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge­sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word “shall” used in sub­section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of A.P. and it was held that the word “shall” occurring in sub­section (4) of Section 173 and sub­section (3) of Section 207­ A is not mandatory but only directory. Further, the scheme of sub­section (8) of Section 173 also makes it abundantly clear that even after the charge­sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.”

[Source: State Rep By Inspector Of Police vs M Subrahmanyam decided by SC on 7 May, 2019]

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