Investigation in Breach of Section 5A PC Act Vitiates Trial Only on Prejudice: Supreme Court

The respondent, a railway booking clerk, was alleged to have misappropriated Rs. 49/1/0 between October 1955 and May 1956 (para 2). On a source report, a Sub-Inspector of the Special Police Establishment checked railway records and reported the information correct; only later did he obtain the Additional District Magistrate's permission under Section 5A, which bars officers below Deputy Superintendent from investigating without a magistrate's order (paras 7, 9). The Special Judge convicted the respondent and sentenced him to one year's rigorous imprisonment; the Allahabad High Court acquitted him, holding that the earlier unauthorised investigation had seriously prejudiced him (paras 1-2). The State appealed (para 2).

Justice Subba Rao, for himself and Justice Dayal, held that an officer in charge of a police station can start investigation "either on information or otherwise" (para 8). Going to the spot on precise information and checking records was investigation under Section 4(1) CrPC, so the Sub-Inspector investigated before obtaining permission (paras 8-9). The Section 5A safeguards "must be strictly complied with" (para 9), but after permission he "started practically a fresh investigation" (para 10). The question "is not whether in investigating an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial" (para 11). The accused must raise a reasonable doubt that the evidence was shaped by the irregularity, or show he was prevented from putting forward his defence (para 11). The High Court ignored Section 537 CrPC; the trial was fair (paras 11-12). Justice Mudholkar agreed on the result and on prejudice, but held that preliminary enquiries to check information were not investigation, so Section 5A was not violated (paras 13, 16).