judgement:
Nos. 2132 and 2133 of 1970.
Appeal by certificate from the judgment and order dated June 22, 1965 of the Calcutta High Court in I.T. Reference No. 36 of 1961.
Sukumar Mitra J. L. Hathi, T. A. Ramachandran, K. L. Hathi and P. C. Kapur, for the appellant.
V. section Desai, R. N. Sachthey and B. D. Sharma, for the res pondent.
The Judgment of the Court was delivered by Grover, J.
These appeals have been brought by certificate from a judgment of the Calcutta High Court in two Income tax References.
It is most unfortunate that the statement of the case contains certain omissions and errors and does not appear to have been drafted with the usual care with which such statements are drawn.
The assesses Guzdar Kajora Coal Mines Ltd. which was incorporated on July 4, 1945 purchased by a deed of convey ance dated April 3, 1966 executed by the liquidators of Guzdar 744 Kajora Colliery Co. Ltd. all the colliery lands, hereditaments and premises, mines, minerals, powers and privileges and all ,other hereditaments together with the machinery thereon belonging to the latter company.
It was stipulated in the deed of ,conveyance that the sale was to be effective from July 1, 1945.
The consideration for the transfer was Rs. 6 lacs and was allocated as follows : "(a) the value of the machinery plants stores including stock of goods grains coals at the pithead and other movable properties appertaining to the said colliery the property in which is capable of passing by delivery being .
Rs. 3,50,000/ .
(b) the value of the buildings and structures be longing to the said colliery being Rs. 1,50,000/ .
(c) the value of the rest of the properties appertaining, to the said colliery not capable of being passed by delivery being Rs. 1,00,000/ " Soon after the assessee company came into existence it took over the business from the vendor company and claimed depre ciation for the assessment year 1946 47 on the basis of, the figures the comparative statement of which is given in the statement of the case.
This statement contains the written down value as per the assessment record of the vendor company the valuation of the assets as per the balance sheet of the vendor company and the valuation by the assessee company as per balance sheet as on December 30, 1945.
The Income tax Officer 'allowed depreciation on the basis of those figures.
This state of affairs continued till the assessment year 1952 53 when the Income tax Officer again allowed depreciation on the old basis.
Before, the Appellate Assistant Commissioner the assessee raised a ground ,that the Income tax Officer should. have worked ,out the depreciation figures on the basis of balance sheet valuation of the assets as per the audited accounts submitted by the assessee and as claimed in the return.
With regard to the assessment year 1953 54 the same position was taken up.
The assessee appealed to the Income tax Appellate Tribunal, having failed in its contentions before the Appellate Assistant Commissioner.
It was contended before the Appellate Tribunal by the assessee that although it had paid a sum of Rs. 6 lacs as consideration for the transfer of the mines the value taken by the department for the purpose of determining depreciation Was much lower.
It was pointed out that the purchase had been made after obtaining, the 745 opinion of an expert and the assessee was being subjected to great hardship depreciation being determined only on the old written down value of the assets and not on the basis of the original cost of acquisition.
The Appellate Tribunal was of the view that substantial injustice would result to the assessee if the depreciation continued to be allowed on the old basis if the case of the assessee had any substance.
It was felt that a proper investigation as to the value paid by the assessee in taking over the old company was necessary.
The matter was remanded to the Income tax Officer to hold an inquiry after giving an opportunity to the assessee to place all the available material in support of its claim.
With regard to the assessment year 1953 54 also the case was remanded with similar directions.
The Income tax Officer made a report on July 6, 1960.
According to his findings some of the Directors and Shareholders of the two companies were the same and they were connected in many ways.
Furthermore the valuation of the depreciable assets and the consumable stores had been written up whereas the valuation of the non depreciable assets like mines etc. had been written down.
As regards the report of the expert A. N. Mitter dated September 1, 1945 he was unable to contact him in spite of making an effort to do so.
The report made by the second expert section N. Mullick dated October 19, 1955 and January 30, 1957 together with the clarification made by him on November 20, 1959 were considered by him.
He also examined 8.
N. Mullick under section 37 of the Indian Income tax Act, 1922, hereinafter called the 'Act '.
He came to the conclusion that the vendor had been making good profits but no provision had been made for the goodwill of the company in the business and if such a provision had been made it would have worked out at Rs. 2,56,960/ having regard to the profits made for the preceding four years.
He made an allocation of Rs. 6 lacs as follows "(1) Good will Rs. 2,56,960/ (2) Mines and development as per balance sheet of M/s. Guzdar Gajore Colliery Co. Ltd. as at 30 6 45.
Rs.2,48,323/ (3) Stores and stock Rs.60,744/ and worked out the value of other depreciable assets at Rs. 33,973/ " Before the Appellate Tribunal the remand report of the Income tax Officer was assailed on behalf of the assessee on various grounds.
The Tribunal observed that when the assessments for the years 1946 47 and 1947 48 were made the assessee 13 Ll52SupCI/73 746 chose to give the valuation in its balance sheet on a certain basis which was accepted and no appeal was taken to the higher authorities and although the rule of estoppel could not be applied but "acquiscence of the assessee shows which way the wind blew".
When a settled thing was sought to be reopened the Income tax Officer had a right to see whether there was any Justification for the "radical departure from the settled practice".
It was held that the Income tax Officer was to go behind the valuation.
As regards the goodwill the contention raised on behalf of the assessee was that the same was included in the item of one lakh mentioned in the sale deed.
According to the report of Mr. Mullick it was included in the item of Rs. 3,50,006.
This is what the Tribunal proceeded to observe: "It seems to us, the simple truth of the matter is that the figure of Rs. 3,50,000/ , Rs. 1,50,000/ and Rs. 1,00,000/ were arbitrarily put.
and there was no clear cut or understandable break up of valuation (?) clause 3 of the break up in the deed of 3rd April 1946, which talks of the value of the rest of the properties appertaining to the said colliery not capable of being passed by delivery being valued at Rs. 1,00,000/shows that these properties which had I not been in clause 1 and 2 were comprised in this and it seems too much to say that good will is included in this.
it would be more true to say that good will was thought of or conceived of but not provided for in the break up of valuation".
The appeals were consequently dismissed.
The, assessee moved the Tribunal for referring certain questions of law to the Tribunal.
The following question was framed by the Tribunal and referred to the High Court : "Whether on the facts and in the circumstances of the case the Income tax Officer was competent to go beyond the conveyance and fix a valuation of the assets on his own ?" The High Court was of the view that the Income tax Officer was competent to make a fresh computation as to the value of the assets of the assessee if the facts and circumstances of a particular case justified following such a course.
Even on the question of valuation of the good will it was observed " Further, it should be remembered that although the Income tax Officer has made the valuation of the goodwill by working out the normally accepted method of taking the profits of the four preceding years, this 747 method of calculation or this normal practice has not been challenged by the assessee.
The revenue has.
examined all the relevant facts of the case including the reports of Mr. Mitter and Mr. Mullick and the Tribunal has agreed with those findings of facts and we do not think that we can interfere with those findings".
The answer to the question referred was given in the affirmative.
Learned counsel for the assessee has assailed the decision of the High Court on a number of grounds.
It has been urged inter alia that the High Court had not kept in view the general and well established principle that the statement with regard to valuation contained in a formal document should be prima facie accepted as cornet.
There can be no justification, it has been pointed out, for any court or Tribunal "to rip up a transaction not impeached as dishonest and not proved to be such, merely because the company may have paid an extravagant price for their property".
A great deal of emphasis has been laid on behalf of the assessee on the report submitted by the experts justifying the valuation given in the deed of conveyance.
In the absence of fraud, collusion, inflation or false transaction made with an ulterior purpose the Income tax authorities, it is said, were precluded from going behind the agreement of purchase in determining the purchase price fixing their own valuation.
The other point canvassed on behalf of the assessee is that good will was not included in the valuation given in the deed of conveyance nor was it ever intended that any good will of the business should be sold by the vendor company.
This contention, however, appears to run counter to What was argued before the High Court and the Tribunal nor can it be said to be covered by the question which was referred.
On the case as put before the Appellate Tribunal and the.
High Court and the question referred with regard to the two assessment years in question we are unable to see any such error or infirmity that would Justify interference by us in these appeals.
_ It has been strenuously urged on behalf of the assessee that since the decision of the Tribunal or the High Court could not operate as res judicata for other assessment years with regard to which assessments are still pending, the assessee would be entitled to raise all the points which are relevant with regard to the question of valuation for the purpose of determining depreciation.
We have been pressed to indicate broadly the principles for future guidance as it will be open to the assessee to raise all the points relevant for the purpose of determination of the amount of depreciation allowance in the assessments which are still pending and have not been finally disposed of.
748 Section 10(2) (vi) of the Act, to the extent it is material is as follows "(2) Such profits or gains shall be computed after making the following allowances, namely: (vi) in respect of depreciation of such buildings machinery, plant or furniture being the property of the assessee, a sum equivalent, where the assets are ships other than ships ordinarily plying on inland waters, to such percentage on the original cost thereof to the assessce as may in any case or class of cases be prescribed and in any other case, to such percentage on the written down value thereof as may in any case ,or class of cases be prescribed; Provided that (a). . (b). . (c) The aggregate of all allowances in res pect of depreciation made under this clause and clause (vi a) or under any Act repealed hereby, or under the Indian Income tax Act, 1886 (II of 1886), shall, in no case exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be;" Keeping in view sub section
(5) of section 10 of the Act, the original actual cost to the assessee of the asset with regard to which depreciation allowance is claimed has to be ascertained for the purpose inter alia of finding out the written down value in case of assets other than ocean going ships.
For the purpose of getting the benefit of clause (c) of the proviso to sub section (2)(vi) also the original cost has also to be ascertained.
The Privy Council laid down in Commissioner of Income tax, Madras vs The Buckingham and Carnatic Co., Ltd. Madras(1), that the word "assessee" in section 10(2)(vi) of the Act refers to the person who owns the assets and who is being assessed and depreciation allowance has to be based on the original cost of such property to such person.
This principle was laid down in a case where the assessee had acquired the business of another assessee and it was emphasised that the original cost to be consi dered was the original cost to the person who was being actually assessed and not the original cost of those assets to the previous (1) 749 owner of the business.
Reference was made to the above decision of the Privy Council in the judgment of this Court in Jogta Coal Co. Ltd. vs Commissioner of Income tax West Bengal(1) and it was observed "We do not think that there is any doubt on the wording of the section or on the interpretation that has been put upon those words that the cost to be calculated for the purpose of depreciation allowance is the cost to the assessee and not to the person who makes the sale. .
Now the original cost of a particular asset is a question of fact which has to be determined on the evidence or the material produced before or available to the Income tax authorities.
Any document or formal deed mentioning the consideration or the cost paid for the purchase of an asset by an assessee would be a piece if evidence and prima facie the statements or figures given therein would show how much the cost of the asset to the assessee is.
But if circumstances exist showing that a fictitious price has been put on the asset or there is fraud or collusion between the vendor and the vendee and there has been inflation or deflation of value for ulterior purposes it is open to the Income tax authorities to refuse to accept the price mentioned in the deed or alleged by the assessee and to ascertain what the actual cost was: See Pindi Kashmir Transport Co. Ltd. vs Commissioner of Income tax Lahore (2 ) and Kalooram Govindram vs Commissioner of Income tax Madhya Pradesh, Nagpur and Bhandara(3).
In this view ' of the matter it is open to the Income tax authorities to determine and to the assessee to show.
whether the good will of the business is or is not included in the consideration or the price paid for the acquisition of the asset.
In other words even if it is not expressly mentioned that goodwill has been sold it can be shown and ascertained by evidence whether the same has been purchased or not by the assessee.
The expression "good will" has been considered and explained by this Court in section C. Cambatta & Co. P. Ltd. vs Commissioner Excess Profits Tax, Bombay(4) and nothing more need be said about it.
The principles stated by us are by no means exhaustive and are mainly illustrative.
Keeping in view the facts of the present case we may make it clear that if circumstances exist for going behind the valuation as 'also the allocation given in the deed of conveyance it was and is open to the Income tax authorities to determine the valuation as well as the allocation between depreciable and non depreciable assets.
(1) (2) (3) (4) 750 The present appeals, however, must fail for the reasons stated earlier and are hereby dismissed.
We make no order as to costs in this Court.
V.P.S. Appeal dismissed.

summary/full:
The appellant purchased on July 1, 1945, the property of a colliery company and the consideration of Rs. 6 lacs was allocated in the sale deed in a certain manner among the various items purchased.
From the assessment year 1946 47 to the assessment year 1952 53, the appellant claimed depreciation on the basis of the written down value of the assets as per the.
assessment record of the vendor company, and the Income tax officer allowed depreciation on that basis.
For the assessment year 1952 53, however, the appellant contended that the depreciation should have been worked out on the basis of balance sheet valuation of the assets as per the audited accounts submitted by the appellant and as claimed in their return.
The Appellate Assistant Commissioner held against the appellant.
On appeal, the appellate Tribunal remanded the matter to the Income tax Officer, and the income tax Officer, after inquiry, held that some of the directors of the vendor company and the appellant were the same, that the valuation of the depreciable assets had been written up while that of the non depreciable assets was written down and that no provision was made for the goodwill of the vendor company even though it was making good profits.
He made the allocation of Rs. 6 lacs in a different manner, and included the goodwill of the vendor also as having been sold to the appellant, and made provision for it from out of the Rs. 6 lacs.
The Tribunal accepted the report of the Income tax Officer and held that when the settled practice was sought to be reopened by the appellant the Income tax Officer had a right to see whether there was any justification ,for the departure, that the break up of the valuation in the sale deed was in fact arbitrary and that it was unlikely that the goodwill was provided for in the break up of the valuation in the sale deed.
On reference, the High Court also held that the Income tax Officer was competent to go beyond the conveyance and refix the valuation and that he bad correctly worked out the valuation of the goodwill after examining all the relevant facts and reports of experts and that the method adopted was not challenged by the appellant.
Dismissing the appeal to this Court, HELD : In the case of an asset, other than ocean going ships, with regard to which depreciation allowance is claimed under 'section 10(2)(vi) of the Income tax Act, 1922, in view of section 10(5), the original actual cost to an assessee of the asset has to be ascertained for the purpose of finding out its written down value.
For the purpose of getting the benefit of cl.
(c) of the proviso to section 10(2) (vi) also the original cost to the assessee,that is theperson who owns the asset and who is being assessed,has to be ascertained.
[748F H] 743 The original cost of a particular asset is a question of fact which has to to determined on the evidence or on the material produced before or available to the Income tax authorities.
Any document or formal deed mentioning the consideration or the cost paid for the purchase of an asset by an assessee would be a piece of evidence and prima facie the statements or figures given therein show how much the cost of the asset to the assessee is.
But if circumstances exist showing that a fictitious price has been put on the asset or there is fraud or collusion between the vendor and the vendee and there has been inflation or deflation of value for ulterior purposes it is open to the Income tax authorities to refuse to accept the price mentioned in the deed or alleged by the assessee and to ascertain what the actual original cost was.
[749C E] Even if it is not expressly mentioned that goodwill has been sold it can be shown and ascertained by evidence whether it has been purchased or not by the assessee.
[749F G] Commissioner of income Tax, Madras vs The Buckingham & Carnatic Co. Ltd. Madras, [935] I.T.R. 384; Jogta Coal Co. Ltd. V. Commissioner of Income Tax, West Bengal 36 I.T.R. 521; Pindi Kashmir Transport Co. Ltd. vs Commissioner of Income Tax, Lahore ; and Kalooram Govindranm vs Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara, , referred to.
tax Therefore, in the circumstances of this case it was open to the Incomeauthorities to go behind the valuation as also the allocation given in the deed of conveyance and to determine afresh the valuation as well as the allocation between the depreciable and non depreciable assets.
[749G H]


judgement:
minal Appeals Nos.
95 to 97 and 106 of 1954.
1151 Appeal by Special Leave from the Judgment and Order dated the 24th August 1953 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal Revision Nos.
109 D, 122 D and 123 D of 1953 arising out of the Judgment and Order dated the 25th May 1953 of the Court of Special Judge,Delhi, in Corruption Case No. 14 of 1954; from the Judgment and Order dated the 27th August 1954 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal Miscellaneous No. 131 D of 1954.
H. J. Umrigar and Rajinder Narain, for appellant No. 1.
C. K. Daphtary, Solicitor General of India (G. N. Joshi, P. A. Mehta and P. G. Gokhale, with him), for the respondent.
December 14.
The Judgment of the Court was delivered by JAGANNADHADAS J.
These are appeals by special leave against the orders of the Punjab High Court made in exercise of revisional jurisdiction, reversing the orders of the Special Judge, Delhi, quashing certain criminal proceedings pending before himself against these appellants for alleged offences under the Penal Code and the Prevention of Corruption Act, 1947.
The Special Judge quashed the proceedings on the ground that the investigations on the basis of which the appellants were being prosecuted were in contravention of the provisions of sub section (4) of section 5 of the Prevention of Corruption Act, 1947, and hence illegal.
In Appeal No. 95 of 1954 the appellants are two persons by name H.N. Risbud and Indar Singh.
In Appeals No. 96 and 97 of 1954 H.N. Risbud above mentioned is the sole appellant.
These appeals raise a common question of law and are dealt with together.
The appellant Risbud was the Assistant Development Officer (Steel) in the office of the Directorate General, Ministry of Industry and Supply, Government of India and the appellant Indar Singh was the Assistant Project Section Officer (Steel) in the office of the Direc 1152 torate General, Ministry of Industry and Supply, Government of India.
There appear to be a number of prosecutions pending against them before the Special Judge, Delhi, appointed under the Criminal Law Amendment Act., 1952 (Act XLVI of 1952).
We are concerned in these appeals with Cases Nos.
12,13 and 14 of 1953.
Appeals Nos. 95, 96 and 97 arise respectively out of them.
The cases against these appellants are that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock holders of these articles.
The charges, therefore, under which the various accused, including the appellants, are being prosecuted are under section 120 B of the Indian Penal Code, section 420 of the Indian Penal Code and section 7 of the Essential Supplies (Temporary Powers) Act, 1946.
In respect of such of these accused as are public servants, there are also charges under section 5(2) of the Prevention of Corruption Act, 1947.
Under section 5(4) of the Prevention of Corruption Act, 1947, a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under sub section (2) of section 5 without the order of a Magistrate of the First Class.
The first information reports in these cases were laid in April and June, 1949, but permission of the Magistrate, for investigation as against the public servants concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given in March and April, 1951.
The charge sheets in all these cases were filed by such officers in August and November, 1951, i.e. subsequent to.
the date on which permission as above was given.
But admittedly the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigate by an officer of a lower rank was accorded.
It appears from the evidence taken in this behalf that such investigation was con 1153 ducted not by any Deputy Superintendent of Police but by officers of lower rank and that after the permission was accorded little or no further investigation was made.
The question, therefore, that has been raised is, that the proceedings by way of trial initiated on such charge sheets are illegal and require to be quashed.
To appreciate the argument it is necessary to notice the relevant sections of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter referred to as the Act.
Section 3 of the Act provides that offences punishable under section 161 or 165 of the Indian Penal Code shall be deemed to be cognizable offences.
Section 4 enacts a special rule of evidence against persons accused of offences under section 161 or 165 of the Indian Penal Code, throwing the burden of proof on the accused.
Broadly stated, this section provides that if it is proved against an accused that lie has accepted or obtained gratification other than legal remuneration, it shall be presumed against him that this was so accepted or obtained as a motive or reward.
, such as is mentioned in section 161 of the Indian Penal Code.
Sub sections (1) and (2) of section 5 create a new offence of "criminal misconduct in discharge of official duty" by a public servant punishable with imprisonment for a term of seven years or fine or both.
Sub section (3) thereof enacts a new rule of evidence as against a person accused of the commission of offences under section 5(1) and (2).
That rule, broadly stated,.
is that when a person so accused, or any other person on his behalf, is in possession of pecuniary resources or property disproportionate to the known sources of his income and for which he cannot satisfactorily account, the Court shall presume him to be guilty of criminal misconduct unless he can displace that presumption by evidence.
The offence of criminal misconduct which has been created by the Act, it will be seen, is in itself a cognizable offence, having regard to item 2 of the last portion of Schedule 11 of the Code of Criminal Procedure under the bead "offences against the other laws".
In the normal course, therefore, an investi 1154 gation into the offence of criminal misconduct under section 5(2) of the Act and an investigation into the offence under sections 161 and 165 of the Indian Penal Code which have been made cognizable by section 3 of the Act would have to be made by an officer incharge of a police station and no order of any Magistrate in this behalf would be required.
But the proviso to section 3 as well as sub section (4) of section 5 of the Act specifically provide that "a police officer below the rank of a Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest there for without a warrant".
It may be mentioned that this Act was amended by Act LIX of 1952.
The above mentioned proviso to section 3 as well as sub section (4) of section 5 have been thereby omitted and substituted by section 5 A, the relevant portion of which may be taken to be as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, no police officer below the rank of a Deputy Superintendent of Police (elsewhere than in the presidency towns of Calcutta, Madras and Bombay) shall investigate any offence punishable under sections 161, 165 or 165 A of the Indian Penal Code or under section 5(2) of this Act without the order of a Magistrate of the First Class".
This amendment makes no difference.
In any case the investigation in these cases having taken place prior to the amendment, what is relevant is section 5(4) as it stood before the amendment.
It may also be mentioned that in 1952 there was enacted the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) which provided for the appointment of Special Judges to try offences under sections 161, 165 and 165 A of the Indian Penal Code and under sub section (2) of section 5 of the Act such offences were made triable only by such Special Judges.
Provision was also made that all pending cases relating to such offences shall be forwarded for trial to the Special Judge.
That is how the present cases are all now before the Special Judge of Delhi appointed under this Act.
On the arguments urged before us two points arise 1155 for consideration.
(1) Is the provision of the Prevention of Corruption Act, 1947, enacting that the investigation into the offences specified therein shall not be ' conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate, directory or mandatory.
(2) Is the trial following upon an investigation in contravention of this provision illegal.
To determine the first question it is necessary to consider carefully both the language and scope of the section and the policy underlying it.
As has been pointed out by Lord Campbell in Liverpool Borough Bank vs Turner(1), "there is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.
It is the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed".
(See Craies on Statute Law, page 242, Fifth Edition).
The Code of Criminal Procedure provides not merely for judicial enquiry into or trial of alleged offences but also for prior investigation thereof.
Section 5 of the Code shows that all offences "shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code" (except in so far as any special enactment may provide otherwise).
For the purposes of investigation offences are divided into two categories 'cognizable ' and 'non cognizable '.
When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground).
But where the information relates to a non cognizable offence, he shall not investigate it without the order of a competent Magistrate.
Thus it may be seen that according to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance other (1) 148 1156 wise than on a police report in which case he has the power under section 202 of the Code to order investigation if he thinks fit).
Therefore, it is clear that when the Legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Act.
In order to ascertain the scope of and the reason for requiring such investigation to be conducted by an officer of high rank (except when otherwise permitted by a Magistrate), it is useful to consider what "investigation" under the Code comprises.
Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under section 154 of the Code.
If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.
Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case.
By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer".
For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case.
He has also the authority to examine such person orally either by himself or by a duly authorised deputy.
The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in section 162.
Under section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation.
The search has to be conducted by such officer in person.
A subordinate officer may be deputed by him for the 1157 purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available.
The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under section 54 of the Code.
A police officer making an investigation is enjoined to enter his proceedings in a diary from day to day.
Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned.
It is important to notice that where the investigation is conducted not by the officer in charge of the police station but by a subordinate officer (by virtue of one or other of the provisions enabling him to depute such subordinate officer for any of the steps in the investigation) such subordinate officer is to report the result of the investigation to the officer in charge of the police station.
If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond.
If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefore under section 170 of the Code.
In either case, on the completion of the in vestigation he has to submit a report to the Magistrate under section 173 of the Code in the prescribed form furnishing various details.
Thus, under the Code investigation consists generally of the following steps:(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) 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 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 (5) Formation of the opi 1158 nion 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 section 173.
The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station.
It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station.
There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under section 551.
It is in the light of this scheme of the Code that the scope of a provision like section 5(4) of the Act has to be judged.
When such a statutory provision enjoins that the investigation shall be made by a police officer of not less than a certain rank, unless specifically empowered by a Magistrate in that behalf, notwithstanding anything to the contrary in the Code of Criminal Procedure, it is clearly implicit therein that the investigation (in the absence of such permission) should be conducted by the officer of the appropriate rank.
This is not to say that every one of the steps in the investigation has to be done by him in person or that he cannot take the assistance of deputies to the extent permitted by the Code to an officer in charge of a police station conducting an investigation or that he is bound to go through each of these steps in every case.
When the Legislature has enacted in emphatic terms such a provision it is clear that it had a definite policy behind it.
To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to public 1159 servants as such, are non cognizable.
A cursory perusal of Schedule II of the Code of Criminal Procedure discloses that almost all the offences which may be alleged to have been committed by a public servant, fall within two chapters, Chapter IX "Offences by, or relating to, public servants", and Chapter XI "Offences against public justice" and that each one of them is non cognizable.
(Vide entries in Schedule II under sections 161 to 169, 217 to 233, 225 A as also 128 and 129).
The underlying policy in making these offences by public servants non cognizable appears to be that public servants who have to discharge their functions often enough in difficult circumstancesshould not be exposed to the harassment of investigation against them on information levelled, possibly, by persons affected by their official acts, unless a Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same.
This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour.
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 cognizance, 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 sub section (4) of section 5 of the Act as well as to the policy apparently underlying it is reasonably clear that the said provision must be taken to be mandatory.
It has been suggested by the learned SolicitorGeneral in his arguments that the consideration as to the policy would indicate, if at all, only the necessity for the charge sheets in such a case having to be filed by the authorised officer, after coming to his own conclusion as to whether or not there is a case to place the accused on trial before the Court, on a. perusal of the material previously collected, and that at best this might extend also to the requirement of arrest of the 1160 concerned public servant by an officer of the appropriate rank.
There is, however, no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the scheme of the Act, have to be conducted by the appropriate investigating officer either directly or when permissible through deputies, but on his responsibility.
It is to be borne in mind that the Act creates two new rules of evidence one under section 4 and the other under section 5(3), of an exceptional nature and contrary to the accepted canons of criminal jurisprudence.
It may be of considerable importance to the accused that the evidence in this behalf is collected under the responsibility of the authorised and competent investigating officer or is at least such for which such officer is prepared to take responsibility.
It is true that the result of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and the consequent greater responsibility and experience of a police officer has absolutely no relation to the nature and quality of evidence collected during investigation and to be subsequently given in Court.
A number of decisions of the various High Courts have been cited before us bearing on the questions under consideration.
We have also perused the recent unreported Full Bench judgment of the Punjab High Court(1).
These disclose a conflict of opinion.
It is sufficient to notice one argument based on section 156(2) of the Code on which reliance has been placed in some of these decisions in support of the view that section 5(4) of the Act is directory and not mandatory.
Section 156 of the Code of Criminal Procedure is in the following terms: "156(1).
Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(1) Criminal Appeals Nos.
25 D and 434 of 1953 disposed of on 3rd May,1954.
1161 (2).
No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
Any Magistrate empowered under section 190 may order such an investigation as above mentioned".
The argument advanced is that section 5(4) and proviso to section 3 of the Act are in substance and in effect in the nature of an amendment of or proviso to section 156(1) of the Code of Criminal Procedure.
In this view, it was suggested that section 156(2) which cures the irregularity of an investigation by a person not empowered is attracted to section 5(4) and proviso to section 3 of the 1947 Act and section 5 A of the 1952 Act.
With respect, the learned Judges appear to have overlooked the phrase "under this sec tion" which is to be found in sub section (2) of section 156 of the Code of Criminal Procedure.
What that sub section cures is investigation by an officer not empowered under that section, i.e. with reference to sub sections (1) and (3) thereof.
Sub section (1) of section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction.
It is the violation of this provision that is cured under sub section (2).
Obviously sub section (2) of section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised.
But apart from the implication of the language of section 156(2), it is not permissible to read the emphatic negative language of sub section (4) of section 5 of the Act or of the proviso to section 3 of the Act, as being merely in the nature of an amendment of or a proviso to sub section (1) of section 156 of the Code of Criminal Procedure.
Some of the learned Judges of the High Courts have called in aid sub section (2) of section 561 of the Code of Criminal Procedure by way of analogy.
It 1162 is difficult to see how this analogy helps unless the said sub section is also to be assumed as directory and not mandatory which certainly is not obvious on the wording thereof 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 in violation thereof bears the stamp of illegality.
The question then requires to be considered whether and to what extent the trial which follows such investigation is.
vitiated.
Now, trial follows cognizance and cognizance is preceded by investigation.
This is undoubtedly the basic scheme of the Code in respect of cognizable cases.
But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon.
Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial.
It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.
No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken.
But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance.
Section 190 of the Code of Criminal Procedure is one out of a group of sections under the beading "Conditions requisite for initiation of proceedings.
The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. sections 193 and 195 to 199.
These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith.
But section 190 does not.
While no doubt, in one sense, clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cogni 1163 zance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity.
Such an invalid report may still fall either under clause (a) or (b) of section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.
To such a situation section 537 of the Code of Criminal Procedure which is in the following terms is attracted: "Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice".
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.
That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu vs Emperor(1) and Lumbhardar Zutshi vs The King(2).
These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence.
This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court.
We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termi (1) A.I.R. 1944 P.C. 73.
149 (2) A.I.R. 1950 P C. 26, 1164 nation.
, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial.
When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.
Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police.
Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.
When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice.
It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor.
To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused.
It is true that the peremptory pro 1165 vision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate.
But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice.
When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation.
The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.
In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5 A of the Act.
It is in the light of the above considerations that the validity or otherwise of the objection as to the viola tion of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.
The learned Special Judge before whom the objection as to the violation of section 5(4) of the Act was taken took evidence as to the actual course of the investigation in these cases.
In the cases out of which Criminal Appeals Nos. 96 and 97 of 1954 arise, the first information report which in each case was filed on 29 6 1949 was in terms on the basis of a complaint filed by the Director of Administration and Co ordination,, Directorate of Industry and Supply.
This disclosed information constituting offences including that under section 5(2) of the Act.
The cases were hence registered under various sections including section 5(2), of the Act.
The investigation that was called for on the basis of such a first information report was to be by an officer contemplated under section 5(4) of the Act.
The charge sheets in these two cases were filed on 11 8 1951 by a Sub Inspector 1166 of Police, R. G. Gulabani and it appears that he applied to the Magistrate for permission to investigate into these cases on 26 3 1951.
His evidence shows that so far as the case relating to Criminal Appeal No. 97 of 1954 is concerned, he did not make any investigation at all excepting to put up the chargesheet.
All the prior stages of the investigation were conducted by a number of other officers of the rank of Inspector of Police or Sub Inspector of Police and none of them had taken the requisite permission of the Magistrate.
In the case out of which Criminal Appeal No. 96 of 1954 arises the evidence of R. G. Gulabani shows that he took up the investigation after he obtained permission and partly investigated it thereafter but that the major part of the investigation was done by a number of other officers who were all below the rank of Deputy Superintendent of Police without having obtained from the Magistrate the requisite sanction therefor.
Both these are cases of clear violation of the mandatory provisions of section 5(4) of the Act.
In the view we have taken of the effect of such violation it becomes necessary for the Special Judge to reconsider the course to be adopted in these two cases.
As regards the case out of which Criminal Appeal No. 95 of 1954 arises it is to be noticed that the first information report which was filed on 30 4 1949 disclosed offences only against Messrs Patiala Oil Mills, Dev Nagar, Delhi, and others, and not as against any public servant.
The case that was registered was accordingly in respect of offences punishable under section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, and not under any offence comprised within the Pre Vention of Corruption Act.
The investigation proceeded, therefore, in the normal course.
The evidence shows that the investigation in this case was started on 2 5 1949 by Inspector Harbans Singh and that on 11 7 1949 he handed over the investigation to Inspector Balbir Singh.
Since then it was only Balbir Singh that made all the investigation and it appears from his evidence that he examined as many 1167 as 25 witnesses in the case.
It appears further that in the course of this investigation it was found that, the two appellants and another public servant were liable to be prosecuted under section 5(2) of the Act.
Application was then made to the Magistrate by Balbir Singh for sanction being accorded to him under section 5(4) of the Act and the same was given on 20 3 1951.
The charge sheet was filed by Balbir Singh on 15 11 1951.
He admits that all the investi gation by him excepting the filing of charge sheet was prior to the obtaining the sanction of the Magistrate for investigation.
But since the investigation prior to the sanction was with reference to a case registered under section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, that was perfectly valid.
It is only when the material so collected disclosed the commission of an offence under section 5(2) of the Act by public servants, that any question of taking the sanction of the Magistrate for the investigation arose.
In such a situation the continuance of such portion of the investigation as remained, as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate.
We are, therefore, of the opinion that there has been no such defect in the investigation in this case as to call for interference.
In the result, therefore, Criminal Appeal No. 95 of 1954 is dismissed.
Criminal Appeals Nos.96 and 97 of 1954 are allowed with the direction that the Special Judge will take back the two cases out of which these appeals arose on to his file and pass appropriate orders after reconsideration in the light of this judgment.
Criminal Appeal No. 106 of 1954.
This is an appeal by special leave against a common order of the High Court of Punjab relating to Cases Nos. 19 to 25 of 1953 before the Special Judge, Delhi.
It raises the same questions which have been disposed of by our judgment in Criminal Appeals Nos. 95 to 97 of 1954.
Since the appeal is, in form, one 1168 against the order of the High Court refusing to grant stay of the proceedings then pending, it is sufficient to dismiss this appeal with the observation that it will be open to the appellants to raise , the objections before the Special Judge.

dataset_name: IN-Abs

summary/full:
Held, that section 5(4) and proviso to section 3 of the Prevention of Corruption Act, 1947 (II of 1947) and the corresponding section 5 A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation conducted in violation thereof is illegal.
If cognizance is in fact taken on a police report in breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.
It is well settled that an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby When any breach of the mandatory provisions relating to investigation is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5 A of the Prevention of Corruption (Second Amendment) Act, 1952.
Liverpool Borough Bank vs Turner ([1861] ; , Prabhu vs Emperor (A.I.R. and Lumbhardar Zutshi vs The King (A.I.R. , referred to.


judgement:
No. 192 of 1972.
(Under Article 32 of the Constitution of India for tile enforcement of fundamental rights.) Hiralal fain for the petitioner.
P. K. Chakraborty and G. section Chatterjee for the respondent.
(1) and (2) of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called the Act).
The petitioner Borjahan Gorey, who claims to be a laborer working in Gogalbhai Jute Mills was arrested on October 5, 1971 pursuant to the impugned order of detention.
The grounds of detention were served on him on the same day.
He made a representation to the State Government on October 25.
1971 which was duly considered by the said Government on October 29, 1971.
His case was placed before the Advisory Board on November 1, 1971 as required by section 10 of the Act and the said Board made_ its report on December 10, 197 1.
As in the opinion of the Board there was sufficient cause for the petitioner 's detention the State Government confirmed the impugned order on December 23, 1971 and communicated this fact to the petitioner on the same day.
The grounds for the petitioner 's detention duly communicated to him under section 8(1) of the Act are : "(1) On 7 7 71 after 19.30 hours you and your associates As to Patra, Netai Patra, Habi Khara and 753 others terrorised the members of the public, who assembled in the field of Shri Saraj Ghosal near Fuleswar Rly.
Station to decide the actions to be taken against the anti social activities, like snatching away valuables from the passengers from running trains, carried on by you and your associates, by exploding bombs at a distance of 8/10 cubits from the place of meeting.
The local people being panicky started running helter and skelter but you and your associates obstructed them by brandishing.
swords and iron rods.
On 6 8 71 at about 11.45 hours, you and your associates Netai Patra, Asto Patra, Amjed, Habi Khara and 15/20 others being armed with ballam, sword and bombs etc., formed an unlawful assembly in front of the shop _of Pranab Sarkar of Kalsafa market, P. section Uluberia and 'attacked one Basudev Sarkar causing severe injuries on his person.
When resisted by the members of the public, you and your associates attacked them causing injuries to some of them and terrorised them by hurling bombs towards them.
Being panickstricken, the local people started to run aimlessly and the market was closed instantaneously.
You and your associates created a reign of terror and continued your rowdy activities till a police party reached there.
" The first point presented by Shri Hiralal Jain, learned counsel appearing as amicus curiae against the petitioner 's detention is that the grounds, on the basis of which the impugned detention order has been made, disclose facts which would squarely fall within the purview of sections 109 and 110 of the Code of Criminal Procedure and, therefore, the petitioner should have been appropriately proceeded against under those sections rather than detained under section 3 of the Act.
Our attention was not drawn by the learned counsel to any statutory provision, nor was any precedent or principle cited by him in suport of this contention.
Now merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure, would not by itself debar the government from taking action for his detention under the Act.
The scheme of the Act as disclosed by its clear language does not lend any support to the contention urged by Shri Jain.
Besides, the object and purpose of bringing the Act on the statute book also clearly shows that in view of the prevailing situation in the country 754 and the developments across the border in July, 1971 the need was felt for urgent and effective preventive action in the interest of national security and the Act was retrospectively enacted to replace the Maintenance of Internal Security Ordinance, 1971.
The preventive detention provided by the Act is apparently designed to deal urgently and effectively with the more serious situation,, inter alia, affecting the security of India and the maintenance of public order as contemplated by section 3 of the Act.
The liability of the detenu also to be tried for commission of an offence or to be proceeded against under Chapter VIII of the Code of Criminal Procedure which deals with prevention of less serious disturbances and requires execution of bonds on the basis of the acts disclosed in the grounds do not in any way as a matter of law affect or impinge upon the full operation of the Act.
The reason is obvious.
Judicial trial for punishing the accused for the commission of an offence as also preventive security proceedings in a criminal court against a person Merely for keeping the peace or for good behavior under Chapter VIII ,of the Code of Criminal Procedure, we may appropriately point out, is a jurisdiction distinct from that of detention under the Act, which has in view, the object of preventing the detenu from acting in any manner prejudicial inter alia to the security of the State or maintenance of public order.
The fields of these two jurisdictions are not co extensive nor are they alternative.
The jurisdiction under the Act may be invoked, when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repletion of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of public order or even when the witnesses may be frightened or scared of coming to a court and deposing about past acts on which the opinion of the authority concerned is based.
This jurissdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction.
The jurisdiction for trial or for preventive proceedings under Chapter VIII.
Code of Criminal Procedure cannot be successfully invoked in such a situation.
In other words a case under the Code of Criminal Procedure whether punitive or preventive depends on the proof of objective facts which have already taken PI ace whereas a case under the Act providing for preventive deten tion depends on the subjective satisfaction of the authorities concerned of the likelihood of the person to be detained to act in future in a manner similar to the one seen from his past acts.
The authorities mentioned in section 3(2) which include the District Magistrate are, in our view, best suited, to decide whether it is necessary to proceed under the Act which decision rests on their subjective satisfaction.
The grounds of detention relate 755 to the past acts on which the opinion as to the likelihood of the repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why the subjective satisfaction has been arrived at so as to enable him to represent against them.
The fact, therefore, that a prosecution under the Code could also have been launched is not a valid ground for saying that it precludes the authority from acting under the Act.
This contention is thus devoid of merit.
We have discussed this aspect somewhat elaborately go as to eliminate any misunderstanding of the True import of our decision and to exclude the possibility of any impression that the Act vests in the authority arbitrary power to select one or the other course dealing,, with the same or exactly similarly situation.
The learned counsel then referred us to the petitioner 's denial in his representation of the truth of the allegations contained in the two grounds.
According to him on the date on which the incident mentioned in ground No. 1 is alleged to have occurred he was present on duty in the mill and, therefore, he could not have participated in that occurrence.
That ground must, therefore, be considered to be false, con .
tended Shri Jain.
In so far as the second ground is concerned, according to the petitioner, at the time of the alleged incident, i.e., at 11.45 a.m. on August 6, 1971, he was at the dispensary of the doctor appointed by the Employees ' State Insurance for Gogalbbai Jute Mills where he had eone with the object of taking medical 'leave for a couple of days because he was sick and was running temperature.
In other words the petitioner ,pleads alibi with respect to both the grounds.
On the basis of these contentions, according to Shri Jain, the impugned order should be held to be based on allegations which are not true.
The impugned order of detention is accordingly contended to be insupportable being based on non existing facts.
We are unable to agree with this submission.
The District Magistrate who made the impugned order has, in the counter affidavit, sworn "that the detenu petitioner is one of the notorious rowdies and anti social elements of P.S. Pudubalia, District Howrah.
He has further added that after receiving reliable information relating to the alleged anti social and prejudicial activities of the, detenu petitioner relating to the maintenance of public order he passed the order of detention under the Act.
In para 7 of the counter affidavit he affirmed both the grounds in express language.
We do not find any cogent ground for not accepting the facts affirmed in the counter affidavit.
The District Magistrate is expected to know the situation prevailing in the district and to take suitable action for the maintenance of public order.
His assessment of facts and his opinion on the 756 propriety of making a detention order must be given due consideration and respect by this Court.
The petitioner 's representation was also duly considered by the State Government and rejected.
The Advisory Board, after hearing the detenu petitioner in person also expressed the opinion that there was sufficient cause for his detention.
In these circumstances, it is not possible for us in habeas corpus proceedings to hold an independent enquiry into the question whether or not the grounds on which the impugned order of detention is passed are false or non existent.
Nor can the impugned order be held to be mala fide as suggested by Shri Jain.
There being no legal infirmity in the order of the petitioner 's detention and, the facts affirmed by_ the District Magistrate, which must be accepted on the facts and circumstances of this case to be true, being relevant to the object of detention, this petition must fail and is dis missed.

summary/full:
The petitioner was detained by an order of the District Magistrate, Howrah and under the provisions of the Maintenance of Internal Security Act (26 of 1971).
He was supplied the grounds of detention.
He made a representation which was considered by the authorities under the Act and rejected.
A petition under article 32 of the Constitution was then filed and the petitioner urged : (i) that the 'facts mentioned in the grounds of detention came within the purview of sections 109 and 110 of the Code of Criminal Procedure and therefore his detention on those facts under section 3 of the Act was unjustified; (ii) that the facts mentioned in the grounds were not correct and the order of detention was mala fide.
Dismissing the petition, HELD : (i) Merely because a detenu is liable to be tried in Criminal Court for the commission of criminal offences or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar government from taking action for his detention under the Act.
The Act was passed in order to meet a serious situation affecting the security of India and the maintenance of public order as contemplated by section 3 of the Act.
Judicial trial for punishing the accused for the commission of an offence as also preventive security proceedings in a criminal Court against a person merely for keeping the peace or for good behaviour is a jurisdiction distinct from that of detention under the Act which has in view the object of preventing the detenu from acting in any manner prejudicial Inter alia to the security of the State or maintenance, of public order.
The fields of these two jurisdictions, are not co extensive nor are they alternative ' The jurisdiction under the Act may be invoked when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is reasonable likelihood of repetition of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of public order or even when the witnesses may be frightened or scared of coming to the Court and deposing about past acts on which the opinion of the authority concerned is based.
This jurisdiction is sometimes called the Jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction.
The authorities mentioned in section 3(2) which include the District Magistrate are best suited to decide whether it is necessary to proceed under the Act, which decision rests on their subjective satisfaction.
The grounds of detention relate to the past acts on which the opinion as to the likelihood of the repetition of such or similar acts is based, and those grounds are 'furnished to the detenu to inform 752 him as to how and why the subjective satisfaction has been arrived it so as to enable him to represent against them.
The fact, therefore that a prosecution under the Code could have also been launched is not a valid ground for saying that it precludes the authority from acting under the Act.
(2) The District Magistrate is expected to know the situation prevailing in the district and to take suitable action for the maintenance of public order.
His assessment of facts and his opinion on the propriety of making a detention order must be given due consideration and respect by this Court.
The petitioner 's representation was also duly considered by the State Government and rejected.
The Advisory Board after hearing the detenu petitioner in person also expressed opinion that there was sufficient cause for his detention.
In these circumstances it was not possible for this Court in habeas corpus proceedings to hold an independent inquiry into the question whether or not the grounds on which the impugned order or detention was passed were false or non existent.
Nor could the impugned order be held to be mala fide.
There being no legal infirmity in the order of the petitioners detention, and the 'facts affirmed by the District Magistrate which must be accepted on the facts and circumstances of the case to be true, being relevant to the object of the detention, this petition must fail.


judgement:
o. 749 and 750 of 1967.
Appeals by certificate from the judgment and decree dated 19th October 1965 of the Kerala High Court at Ernakulam in Second Appeal No. 400 of 1961.
section T. Desai and A. Sridharan Nambiar for the appellants.
P. Ram Reddy and A. V. V. Nair for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
In these appeals by certificate only one question arises for decision and that is whether Chandu, the undivided younger brother of Kelu or the grand children of Kelu through his daughter were the legal heirs of Kelu.
Before going into that question we may dispose, of the con tention advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kelu.
The pleadings in this case proceed on the footing that Chandu and Kelu were the members of an undivided family.
The evidence also discloses that fact.
The judgments of the courts below proceed on that basis.
Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu.
In considering the question formulated above, we shall proceed on the basis that Kelu and Chandu were the members of an undivided family.
758 Kelu was a Thiyya resident of Calicut Taluk (at present known as Kozhikode Taluk).
He was governed by the customary law known as Makkathayam.
He died on November 15, 1935 leaving behind him besides his two brothers Chandu and Chekku, his widow Manikka, daughter Ichira and Ichira 's son and daughter who were the appellants before the High Court.
He left behind him three items of immovable property which are the subject matter of the present appeals.
Kelu 's widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise.
It is not necessary to go into the history of the long litigation.
As mentioned earlier, the only question for decision is as to who were the legal heirs of Kelu.
It is now established that the suit properties are the self acquired properties of Kelu.
There is no dispute about it now.
The High Court came to the conclusion that under the Makkathayam rule, Chandu succeeded to the estate of Kelu in preference to his wife, daughter and daughter 's children.
The said conclusion is challenged in these appeals.
The contesting parties are Hindus.
As mentioned earlier, they are governed by Makkathayam rule.
If the Hindu law as in force in South India had governed the succession with which we are concerned, the wife of Kelu should have succeeded to the estate of her husband in preference to the other heirs.
The claims of the son and daughter of Ichira could come in only later.
Therefore the principal question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death.
Mr. section T. Desai, appearing for the appellants contended that Makkathayam rule being a rule of customary law can only derogate the ordinary Hindu law to the extent it is satisfactorily established; in other respects the ordinary Hindu law should prevail; the contesting respondents having not established by positive evidence the claim put forward by them i. e. that Chandu was a preferential heir to Kelu, they must fail.
On the other hand it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was governed by a customary law i. e. Makkathayam law and not by ordinary Hindu law.
Hence all that we have to see is whether the customary law pleaded is well established on the basis of the decisions of courts.
According to him the custom pleaded is of a community and not of any family.
He urged that the custom in question to the extent relevant for our present purpose is well settled.
The law relating to Thiyyas of the former Calicut taluk had come up for decision before the Madras High Court in several cases.
The approach to be adopted in spelling out the same is 759 laid down in the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti and ors.
vs Kothembra Chandukutti(1).
Therein the Court observed : "We think the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case.
" In Parichan vs Perachi and ors.(2) the High Court of Madras came to the conclusion that a community following Makkathayam rule must not be taken to be necessarily governed by the Hindu law of inheritance with all its incidents.
On the basis of the evidence in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the selfacquired property in preference to widow, the court must give effect to it.
Therein the competition was between the widow and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was the self acquisition of the deceased.
In Rama Menon vs Chathunni (3) the High Court of Madras held that the ordinary rule of Marurnakatayam against compulsory partition is equally applicable to Tiyans who follow Makkatayam, no custom to the contrary having been made out.
In Imbichi Kandan and ors.
vs Imbichi Pennu and ors.(4) the High Court held that on the death of a Thiyya of South Malabar following Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his self acquired properties in preference to his father 's divided brothers.
In the course of the judgment, this is what the learned judges observed: "The decision of the subordinate judge is entirely in accordance with the principles laid down in Parichan vs Perachi and Rama Menon vs Chathunni (supra).
it has been decided that the rule of impartibility applies to Makkatayam Tiyans of Calicut, and in Parichan vs Perachi following the principle that self acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow.
(2) I.L.R. (1) (3) I.L.R. (4) I.L.R. 760 But the case is quite, different when the brothers are divided and have no community of interest as in this case, Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute then an undivided tarwad.
That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncle who did not belong to his tarwad at all and had no community of interest with him.
" From these decisions it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam.
Further as per the Makkathayam rule of inheri tance an undivided brother of a deceased person succeeded to the self acquired property of the deceased in preference to the wife and daughter of the deceased.
If that is so the daughter 's son who comes after them under the general Hindu law cannot have a 'superior claim unless a custom to that effect is pleaded and proved.
Such a custom is neither pleaded nor proved.
No other contention was raised before us.
In the result these appeals fail and they are dismissed.
But in the circumstances of the case we direct the parties to bear their own costs in this Court.
S.C. Appeals dismissed.

summary/full:
The Thiyyas of the former Calicut, Taluk are governed by the customary law known as Makkathayam and as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeds to the self acquired property of the deceased in preference to the wife and daughter of the deceased.
Therefore, the daughter 's son who comes after them under the general Hindu Law cannot have a superior claim unless a custom to that effect is pleaded and proved.
[760C] Parambarathial Pattukava Chakkutti and Ors.
vs Kothembra Chandukutti, Paricham vs Perachi a Ors.
I.L.R. Rama Menon vs Chathunni I.L.R. 17 Mad.
184 Imbichi Kandan & Ors.
vs Imbichi Pennu & Ors.
I.L.R. referred to.


judgement:
Appeal No. 2461 of 1968.
Appeal by certificate from the judgment and order dated June 6, 1968 of the Mysore High Court in W.P. No. 769 of 1966.
section V. Gupte, for the appellant.
Respondent did not appear.
857 The Judgment of the Court was delivered by Hegde, J.
This appeal arises from certain land acquisition Proceedings.
The Government of Mysore notified the lands belonging to the respondent for acquisition.
The notification under section 4 of the Land Acquisition Act, 1894, was published in the official gazette on August 17, 1961, but no notices as required by that section were published in the locality till November 1 and 9, 1961.
The respondent filed.
his objections only on December 4, 1961.
The question for consideration is whether the notification issued under section 4 is a valid notification.
The respondent challenged the validity of the notification before the High Court of Mysore by means of a writ petition under article 226 of the Constitution.
The High Court came to the conclusion that the impugned notification was invalid and consequently quashed the same.
As against that decision this appeal has been brought after obtaining certificate under article 13 3 ( 1 ) (b) of the Constitution.
We shall now read section 4(1) of the Land Acquisition Act, 1894.
It says : "4.
(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
" The section prescribes two requirements, namely, (1) a notification to be published in the Official Gazette, and (2) the Collector causing to give public notice of the substance of that notification at convenient places in the concerned locality.
Now, we may turn to section 5A(1) of the Act which says "5A. (1) Any person interested in any land which has been notified under section 4, sub section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be." Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification.
Any objection filed thereafter need not be considered as the same is filed after the time stipulated in section 5A(1).
With the above background we have to consider the scope of section 4(1).
Under certain circumstances publication in the Official Gazettes are presumed to be notice to all concerned.
858 But in the case of a notification under section 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality.
Unless both these conditions are satisfied, section 4 of the Land Acquisition Act cannot be said to have been complied.
The publication of the notice in the locality is a mandatory requirement.
It has an important purpose behind it.
In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under section 5A, which is very valuable right.
This very question came up for consideration before the High Court of Mysore in Gangadharaiah vs State of Mysore and Ors.(1), and the High Court ruled that section 4(1) requires that there should both be a notification in the gazette as also a public notice in the locality in which the property proposed to be acquired is situate.
It is only when the notification is published in the Official Gazette and it is accompanied by or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed acquisition.
We are entirely in agreement with the rate laid down by that decision.
The impugned notification has not complied with the require ment of the law. ' Hence the High Court was justified in quashing the proceedings taken.
In the view that we have taken, it is not necessary for us to consider either the applicability or the scope of the Mysore Act 17 of 1961 to the present proceedings.
In the result the appeal fails and the same is dismissed. '.Me respondent is not represented before this Court.
Hence there will be no order as to costs.
G.C. Appeal dismissed.

summary/full:
A notification under section 4 of the Land Acquisition Act, 1894 in respect of land belonging to the respondent was published in the official gazette of the Government of Mysore on August 17, 1961.
But no notice as required by that section were published in the locality till November 1 and 19 of 1961.
Under section 5A of the Act the time limited for filing objections is thirty days from the issue of the notification.
The respondent filed his objections only on December 4, 1961.
In his writ petition under Article 226 of the Constitution the respondent contended that the notice under section 4 was invalid.
The High Court upheld the contention and quashed the impugned notification.
The State of Mysore appealed to this Court with certificate.
HELD: Under certain circumstances publication in the official gazette is presumed to be notice to all concerned.
But in the case of a notification under. 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the official gazette the Collector must also give publicity to the substance of the notification in the concerned locality.
Unless both these conditions are satisfied section 4 of the Land Acquisition Act cannot be said to have been complied with.
no publication of the notices in the locality is a mandatory requirement.
In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under section 5A which is a valuable right.
Under section 4 it is only when the notification is published in the official gazette and it is accompanied by or immediately followed by Public notice that a person interested in the property proposed to be acquired can be regarded to have had notice of the proposed notification.[857H 858D] The impugned notification did not comply with the requirement of the law since it was not accompanied by or immediately followed by public notice.
The High Court was, therefore, justified in quashing the proceedings taken.
[858E] The appeal must accordingly fail.
Gangadharaih vs State of Mysore & Ors., (1961) Mys.
L.J. 883, referred to.