STATE OF KERALA Vs. DEVASSY

JUDGEMENT

(1.) The State appeals against the acquittal of the accused by the Sessions judge of Trichur on appeal from his conviction by the First Class Magistrate, Chalakudy, This Court has also taken up the matter, suo motu in revision.

(2.) On the whole we are not satisfied that there are any grounds for interference. The offences alleged against the accused were all non-cognizable. This, notwithstanding, there was a police investigation without the orders of a Magistrate, in violation of the express prohibition in Section 155 (2) of the Criminal Procedure Code, and the learned Magistrate took cognizance of the case on a police report. The learned Sessions Judge following the principles laid down in H. N. Rishbud v. State of Delhi, (S) AIR 1955 SC 196 (A) which was a case of an investigation in violation of the provisions of the Prevention of Corruption Act (2 of 1947), held that the illegality of the investigation did not vitiate the trial unless miscarriage of justice had been caused thereby. He then proceeded to find that there was such miscarriage in this case and, as a consequence thereof, to acquit the accused.

(3.) We are not disposed to disagree. It is the finding of both the lower courts, based upon evidence, that P. W. 9, the Sub-Inspector of Police, who investigated and charged this case was on bad terms with the accused, the latter having sent up complaints against him, and the correctness of this finding is not disputed by the learned Public Prosecutor. The offences are alleged to have been committed at about noon on 28-2-1954, and with a zeal and expedition which we would be glad to see him display in the discharge of his legitimate duties, P. W. 9 registered a case under Sections 323, 352 and 506 (2nd part) of the Indian Penal Code on the complaint Ext. A presented to him and, although the offences were non- cognizable, took up the investigation, arrested the accused, and put him in the lock-up within an hour of the alleged occurrence. And, we are told, despite the fact that the offences were all bailable, offences kept the accused in the lock-up until about 8 P. M. when he was released on the orders of the Magistrate. In the circumstances it is difficult to believe that P. W. 9 was acting under some bona fide mistake in undertaking and prosecuting the investigation. It is easy enough for a Sub-Inspector of Police, if he is so minded, to secure false evidence especially in a comparatively petty case like the present and that P. W. 9 might have been so minded is an inference which legitimately arises from his conduct. In our view, the learned Sessions Judge was quite right in holding that the evidence procured as a result of such an investigation must be viewed with the greatest degree of suspicion.