1. On 15-3-1967 at about 10-30 P.M J.N Satyanarayana, Sub-Inspector of the Railway Protection Force P.W 2 Detective Sub-Inspector of Railway Protection Force and other staff of the Railway Protection Force at Vijayanagaram were on their usual patrol rounds. They noticed the three respondents moving in suspicious circumstances in the railway yard. They found the 1st respondent accused carrying a Ball Bearing Cover on his shoulder, the 2nd accused having three wrenches and the 3rd accused having two big wrenches. The Sub-Inspectors of the Railway Protection Force notice that the Dynamo of Saloon No. 101 was without its Ball Bearing Cover. When questioned by P.W 1 the 1st accused admitted that the Ball bearing Cover had been removed from the Dynamo of the Saloon. The three respondents thereupon were taken to the Railway Protection Force Post, a First information Report was prepared and the respondents alone with the report were forwarded to the Railway Police Station, Vijayanagaram. P.W 4 the Sub-Inspector of the Railway Police investigated into the case and filed a charge-sheet against all the three respondents for an offence under Section 3 of the Railway Property (Unlawful possession) Act, 1966. The learned First Class Magistrate who tried the case, though he appears to have been satisfied that A-1 was in unlawful possession of the Railway property, nevertheless acquitted all the accused on the ground that the police had no authority to investigate into offences arrested and for that purpose invests the officer with the same powers and subjects him to the same provisions as the officer in charge of a police station exercises and is subjected to under the Code of Criminal Procedure, when investigating a cognizable case. Section 8 further provides that if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case or forward him in custody to such Magistrate. In addition to the powers of an officer in charge of a police station investigating a cognizable case with which he is invested under Section 7 an officer of the Force is further empowered under sec. 9 of the Act to summon any person whose attendance he considers necessary either to give evidence or to produce a document. Section 9 sub-section 3 binds all persons so summoned to attend in the manner prescribed and to state the truth upon any subject respecting which they are examined Sub-section 4 further declares that the inquiry by the officer of the Force shall be deemed to be a ‘Judicial proceeding’ within the meaning of sections 193 and 228 of the Indian Penal Code. These provisions emphasise that officers of the Force can never be considered to be police officers and that an enquiry by an officer of the Force is not the samething as an investigation by the police under the code of Criminal Procedure. An investigation under Chapter XIV of the Criminal procedure Code commences with a report under section 157. An enquiry under the Railway Property (unlawful possession) Act commences with an arrest A police officer investigating under Chapter XIV of the Criminal Procedure Code can examine persons supposed to be acquainted with the facts and circumstances of the case and record their statements, such persons being bound to answer all questions put to them by the police officer. Such statements may not be signed by the persons making them, nor be used for any purpose at any enquiry or trial in respect of any offence under investigation at that time except for the purpose of contradicting such persons in the manner provided by Section 145 of the Indian Evidence Act when such persons are examined as witnesses for the prosecution. In an enquiry under the Railway Property (Unlawful possession) Act, however, the persons whose attendance is required by the officer of the Force to give evidence are bound to state the truth upon any subject respecting which they are examined and the enquiry by the officer is deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. A person making a statement to a police officer during the course of an investigation may even answer questions put to him untruthfully without fear of any penal consequence. But a person making untruthful statements in an enquiry under the Railway Property (Unlawful possession) Act is liable to be prosecuted. There is also no prohibition against statements made during the course of enquiry being used at the trial of cases launched subsequently.

2. It is not easy to discern from the provisions of the Act of 1965 why investigation by an officer in charge of a Police Station is substituted by an enquiry by an officer of the Force. It is not as if the enquiry is to be held by an officer superior in rank or status to an officer in charge of a Police Station, an officer of the force being defined to mean an officer of and above the rank of Assistant Sub Inspector only. The main object of substituting investigation by police by enquiry by the protection Force appears to be to raise the embargo on the admissibility of pre-trial statements and confessions attaching to those recorded by investigating police officers. These statements and confessions, if recorded by an officer of the Protection Force during the course of his enquiry would now be admissible because of the provisions of Railway Property (Unlawful possession) Act, 1966 to which I have referred earlier. Since investigation by police into offences under the provisions of the Railway Property (Unlawful possession) Act is not contemplated, the question arises what results would follow if police investigate into such offences notwithstanding the ban, file a change sheet and thereafter a trial ensues? Is a Court precluded from taking cognizance of an offence under the Act upon a report of a police officer based on unauthorised or incompetent investigation by such officers? If a Court takes cognizance of an offence does the unauthorised or incompetent investigation by the police have the effect of rendering inadmissible, evidence adduced at the trial? Is the trial vitiated? What otherwise is the effect of an unauthorised or incompetent investigation?

3. Now, section 190 of the Code of Criminal Procedure empowers a Court generally to take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence,

(b) upon a report in writing of such facts made by any police-officer;

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.

4. It is important to emphasise here that cognizance may be taken of “any offence” under any of the three sub-clauses of section 190(1). Section 190(1)(a) is not restricted to non-cognizable offences in respect of which there can be no investigation by the police without an order from a magistrate under Section 155(2) Cr. P.C Similarly, Section 190(1)(b) is no confined to cognizable offences in respect of which the police may investigate under S. 155(1) Cr. P.C Without an order from a magistrate. Section 190 does not say that a Court may take cognizance of cognizable offences upon receipt of a report of a Police Officer and that it may take Cognizance of non-cognizable offences upon receipt of a complaint. In fact under Section 190(1)(c) a Court may take cognizance even upon information received from other sources, or upon his own or suspicion. The various clauses of section 190(1) are thus not concerned with the question whether the offence of which the Court is taking cognizance is cognizable, or not, that is to say, whether the offence could properly be investigated by the police or not? Section 190 merely refers to the manner in which a Court may come to be acquainted with the commission of an offence and may thereupon proceed to take cognizance of that offence. Section 190 is not concerned with the circumstances under which the person from whom a complaint is received under section 190(1)(a) comes to make the complaint or the police officer from whom a report is received under Section 190(1)(b) comes to make the report. In other words. Section 190 is not concerned with the manner in which the person from whom a complaint is received or the police officer from whom a report is received, gathers the material on which he bases his complaint report. It is immaterial that a person making a complaint adopted illegal means to gather his facts. It is immaterial that the Police Officer making a report made an unauthorised investigation. Section 190 is not concerned with antecedent illegalities. Neither Section 190 nor any of the other provisions of the Code of Criminal Procedure imposes any ban on a Court taking cognizance of a non-cognizable offence on the basis of a report of a Police Officer on the ground that such Police Officer is not authorised to investigate the offence. Sections 195 to 199 of the Code of Criminal Procedure impose certain restrictions on the right of the Court to take cognizance of certain specified offences' Except in the case of the offences specified in Sections 195 to 199 of the Code and to the extent indicated in those provisions there is no restriction on the power of the Court take cognizance of an offence, cognizable or not, duly investigated or otherwise. The Court is free to take cognizance of any offence irrespective of the manner in which the commission of the offence is brought to its notice and irrespective of whether the offence was duly investigated by competent officers. Incompetent or unauthorised investigation does not prohibit the Court from taking cognizance of an offence.

5. Before proceeding further with the discussions, I may mention here that the report of a Police Officer upon which cognizance may he taken of an offence under Section 190(1)(b) Cr. P.C is not the same thing as and should not be confused with the report under Section 173 Cr. P.C The report under Section 173 Cr. P.C is a report of the investigation made under Chapter XIV of the Code and is to be submitted in a prescribed form while the report under Section 190(1)(b) need not be a report of investigation at all; it may be a report, for example, under section 157 or under 167 or under 170 Cr. P.C It may even be a report by a Police Officer requesting some other action by a magistrate, such as action under the preventive provisions of the Code; it may even be a report of an unauthorised investigation. All that is necessary is that the report should state facts which constitute an offence. Again, a report under Section 173 Cr. P.C can only be made by an officer in charge of a Police Station but a report under Section 190(1)(b) may be made by any Police Officer. This is also very significant.

6. It is, therefore, clear that the Criminal Procedure Code contains no provision which prohibits a Court from taking cognizance of an offence on the ground that the agency making the report to the Court is not the agency lawfully constituted as the investigating agency. Under Section 5(2) Cr. P.C all offences under laws other than the Indian Penal Code shall also be investigated, inquired into tried and otherwise dealt with according to the provisions of the Criminal Procedure Code, but subject to any enactment for the time being in force regulating the manner or places of investigating, inquiring into, trying or otherwise dealing with such offences. Some enactments creating special offences prescribe conditions which have to be satisfied before Courts can take cognizance of those offences. For example S. 6 of the Prevention of corruption Act requires the sanction of the appropriate Government or the appropriate authority as a condition precedent to cognizance by a Court of an offence under the Act. Section 20 of the Prevention of Food Adulteration Act insists on the written consent of the State Government etc., for the initiation of prosecution for an offence under the Act. Section 621 of the Companies Act provides that no Court shall take cognizance of an offence against the Act except on a complaint in writing by the Registrar or shareholder or other authorised person. Section 11 of the Essential Commodities Act, similarly, provides that no Court shall take cognizance of an offence, punishable under that Act except on a complaint by a Public Servant as defined in S. 21 of the Penal Code. The Railway Property (Unlawful possession) Act, however, contains no provision prescribing conditions subject to which or defining the manner in which a Court may take cognizance of an offence against the Act. The Court is left free to take cognizance of such an offence when it is brought to its notice in any of the manners mentioned in S. 190 Criminal Procedure Code.

7. The next question for consideration is whether unauthorised investigation can have the effect of rendering inadmissible evidence adduced at the trial. Obviously, it cannot have such an effect because question of admissibility and inadmissibility of evidence must be decided with reference to the provisions of the Evidence Act and other provisions, if any, found in other statutes dealing with questions of admissibility of evidence. The only test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is relevant it is admissible and the Court is not concerned with how the evidence is gathered. As an eminent Judge once observed “it matters not how you get it; If you steal it even it would be admissible”. On principle therefore, defective or illegal investigation has no bearing on the admissibility of evidence.

8. If the competence of a Court to take cognizance, to inquire into and to try an offence is not affected by unauthorised investigation and if such defective investigation has not the effect of rendering evidence adduced at the inquiry or trial inadmissible, does it mean that all defects relating to investigation must be ignored and the Court should proceed with the inquiry or trial as if the offence has been properly investigated? Obviously a Court cannot refuse to take notice of a serious defect of investigation if it comes to its notice. The defective investigation is not a bar to a Court taking cognizance of an offence is not the same thing as saying that a Court is bound to take cognizance of an offence whatever be the defects of investigation. The Court has a discretion to take cognizance or to refuse to take cognizance. It may consider that the defect of investigation noticed by it is not serious enough and is not likely to prejudice the accused in any manner and may decide to take cognizance of the offence. On the other hand if the Court notices a serious defect of investigation when the report is made to it, it may properly refuse to take cognizance of the offence until there is due investigation by an authorised investigating agency. It may refuse to take cognizance and leave it to the concerned investigating agencies to take appropriate steps or it may, without taking cognizance of the offence direct an investigation by a competent investigating agency under Section 156(3) Cr. P.C or Section 155(2) Cr. P.C Where the case is one instituted upon a complaint, the Court, may even after taking cognizance, postpone the issue of process and direct an investigation by a competent agency under Section 202 Cr. P.C In the case of a proceeding instituted upon a Police report too, even after taking cognizance, if a serious defect of investigation is noticed on a perusal of the records or is brought to the notice of the Court, it may, if such a course appears to be justificable but not necessarily, discharge the accused under Section 251-A(2) Cr. P.C leaving it open to the prosecution to rectify the defects of investigation and submit a fresh report. That can only be done before a charge is framed. But once a charge is framed and the trial commences the Court will have no jurisdiction to direct police or other investigating agency to further investigate and submit a further or fresh report. That is for the simple reason that there cannot be a simultaneous investigation into in offence and trial for the same offence. In such an event the trial must proceed to its close and the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have prejudiced the accused and caused a miscarriage of justice. In considering the question of prejudice the natural of the defect may perhaps have to be considered as also the question whether the accused raised any objection to the legality of the investigation at a sufficiently early stage. Where the accused does not raise any objection regarding the legality of investigation at a stage when the defect of investigation could be set right by ordering a proper investigation it may be proper not to permit the accused to take advantage and plead later that the investigation was illegal. This position follows inevitably from the provisions of Sections 537 Cr. P.C and the explanation to that section.

9. The conclusions at which I have arrived in the preceding paragraphs are based on a plain reading of the relevant statutory provisions. Judicial dicta fully support my conclusions though a misreading of some of the judgments appears to have created considerable confusion in the minds of several presiding officers of subordinate courts. That is why I have presumed to state at such great length what to many minds may be apparent.

10. In Public Prosecutor v. Ratnavelu Chetty . I.L.R LI Madras 525. upon the report of a police officer that the accused had committed an offence under S. 211 I.P.C the Magistrate of Krishnagiri held a preliminary enquiry and committed the accused to Sessions. The sessions Judge acquitted the accused on the ground that S. 211 I.P.C being a non-cognizable offence the Magistrate should not have held a preliminary enquiry and committed the accused to sessions on the report of an unauthorised investigation by the police. The appeal preferred by the State against the order of acquittal was heard in the first instance by a Division Bench consisting of Devadoss and Waller, JJ. Both the learned Judges agreed that the acquittal was illegal. Devadoss J. was of the view that the Magistrate should have treated the report of the police officer as a ??? and proceeded to take cognizance of the offence under S. 190(1)(a) Cr. P.C In such an event the Magistrate would have to examine the complainant on oath as required by S. 200 Cr. P.C As that was not done in the case Devadoss J. held that the proceedings before the Magistrate and the commitment were also illegal. He relied upon an earlier judgment of the Madras High Court in Perumal Naick v. Emperor . 1925 M.W.N 317.. He was therefore of the view that the case should be remitted back to the Magistrate for further action in the manner prescribed by law. The other learned judge Waller J., thought that the report of a police officer referred to in S. 190(1)(b) Cr. P.C was not limited to reports under Section 173 Cr. P.C made in cognizable cases. He held that the commitment proceedings are valid, the acquittal was wrong and that there should be a fresh trial by the Sessions Judge. Though both the learned Judges agreed that the acquittal was wrong they differed as to what further proceedings should follow. The matter was, therefore, referred to a third Judge under S. 429 Cr. P.C The learned Chief Justice placed the case before a Full Bench consisting of Courts Trotter C.J and Spencer and Krishna, JJ. The Full Bench agreed with the view of Waller J. They observed:

“While the section itself speaks of “any offence”, we think that an attempt to limit its application to one particular class offences is not warranted by the language used”.

11. They held that the Magistrate had validly taken cognizance of the offence under S. 190(1)(b) and that the accused was validly committed to the Court of Sessions to take his trial. They overruled the earlier judgment of the Madras High Court in Perumal v. Emperor on which Devadas J. had relied. The accused was directed to be tried afresh by the Court of Session.

12. In Lunbhardar Zutshi v. The King . 77 I.A 62. their Lordships the Privy Council held that the failure to follow the proper procedure before making an order authorising the police to investigate an alleged offence did not deprive the magistrate of his jurisdiction to try an accused of a non-cognizable offence. Offences against the Prevention of corruption Act can under S. 5-A of that Act be investigated only by an officer not below that rank of a Deputy Superintendent of Police, though an officer below the rank may also investigate into such offences provided he obtains the permission of Magistrate of the I Class. The question has often arisen whether an investigation made by an officer below the rank of a Deputy superintendent of Police and without obtaining the previous permission of a Magistrate has the effect of vitiating the trial. In H.N Rishbub v. State of Delhi . A.I.R 1955 S.C 196. a case arising under the Prevention of corruption Act, their Lordships of the Supreme Court observed:

“The question then requires to be considered whether and to what extent the trial which follows such (illegal) 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.—————— A defect or illegality in investigation, however, serious has no direct bearing on the competence or the procedure relating to cognizance or trial.————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 Criminal P.C is one out of a group of sections under the heading “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, 195 and to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But S. 190 does not. While no doubt in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, 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 S. 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 S. 537, Criminal P.C is attracted.

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 mis-carriage of justice.——————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 termination the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.”

13. Their Lordships further pointed out that where the illegality in investigation is brought to the notice of the Court at a sufficiently early stage the Court may pass appropriate orders for such reinvestigation as may be called for having regard to the nature and extent of the defect in investigation. In State of Madhya Pradesh v. Veereswar Rao Agnithotri . A.I.R 1957 Supreme Court, 592., Din Dayal Sharma v. State Of U.P . A.I.R 1959 Supreme Court, 831., Major E.G Barsay v. State Of Bombay . . A.I.R 1961 Supreme Court, 1762., Mannalal v. State of U.P . A.I.R 1964 Supreme Court, 28. and Sailendra Nath Bose v. State Of Bihar. . A.I.R 1968 Supreme Court, 1292., cases arising under the Prevention of corruption Act, the principle was reiterated that illegal or unauthorised investigation does not affect the competence and jurisdiction of the Court to take cognizance of an offence and try the offender and that it does not affect the trial unless miscarriage of justice is caused. In State Of Madhya Pradesh v. Mubarak Ali. . A.I.R 1959 Supreme Court, 707. which was also a case arising under the Prevention of corruption Act, an objection regarding the legality of investigation was raised at the very outset and was over-ruled by the Magistrate before whom the charge-sheet had been filed. The High Court of Madhya Pradesh however, directed that there should be a fresh investigation by the Deputy Superintendent of Police so that the illegality in investigation may be cured. Their Lordships of the Supreme Court agreed with the action taken by the High Court. This case is certainly not an authority for the proposition that an illegal investigation would vitiate the trial and that an objection regarding the legality of investigation may be taken at any stage of the trial.

14. Similarly in Delhi Administration v. Ram Singh . A.I.R 1902 S.C 63. on a construction of the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956 it was held that the Special Police Officers appointed under the Act were the only police officers who were competent to investigate offences under the Act and that other police officers were incompetent to so investigate. In that case a Sub Inspector of Police, who was not appointed as Special Officer under the Act, after investigating into an offence under the Act filed a charge-sheet before the Magistrate. On an objection by the accused the Magistrate rejected the charge-sheet holding that the Sub Inspector was not competent to investigate. His action was upheld by the High Court and by the Supreme Court. It will be noticed that the case had not proceeded to trial and the Magistrate rejected the charge-sheet at the outset as incompetent. The question whether incompetent investigation by an officer other than a Special Police Officer would have the effect of vitiating the trial itself where a case had proceeded to trial did not arise before their lordships of the Supreme Court and was not considered by them in that case.

15. In Panduranga Vithal v. State of A.P . C.R.C No. 183 of 1954. a Sub Inspector of Police registered a First information Report under Sections 408 and 471 I.P.C both non-cognizable offences which he was not competent to investigate, without an order from a Magistrate under S. 155(2) Cr. P.C The Sub Inspector, however, investigated the case and filed a charge-sheet and after perusal of the documents the learned Fifth city Magistrate framed charges under Sections 468 and 471 I.P.C An application was filed in the High Court for quashing the charges on the ground that the investigation by the Sub Inspector was incompetent and illegal and the further proceedings taken by the Magistrate were also consequently illegal. A Division Bench of the High Court consisting of Bast Reddy and Anantanarayana Ayyar, JJ., rejected the petition. The legal position was summarised by them in the following words:—

“The provision in S. 155(2) Cr. P.C requiring permission of a competent Magistrate for investigation of non-cognizable offence is a mandatory provision. So also is the provision in S. 5-A of the Prevention of corruption Act (S. 5(4) of that Act before amendment by Act 59 1952) which provides that investigation by an officer below the appropriate rank mentioned in that section should not be done without the order of a Magistrate mentioned therein though that offence is cognizable. Similarly, the provision in Suppression of Immoral Traffic in Women and Girls Act, that investigation into offences under that Act, though cognizable, should be done by a special police Officer under that Act or a Police Officer subordinate such Police Officer, is mandatory. Investigation in contravention of the above-mentioned mandatory provisions is invalid and illegal. When a charge-sheet is filed by a Police Officer after such illegal and invalid investigation, the Magistrate is competent to quash the charge-sheet. It was so held in Delhi Administration v. Ram Singh. But the Magistrate is not bound to quash the charge-sheet. He is competent to receive the charge-sheet on fife under the provisions of S. 190(1)(a) or (b) that is, as a complaint or as a police report, vide H.N Rishbur v. State of Delhi. It can be taken cognizance of by the Court as Police report, vide Public Prosecutor v. Ratnavelu Chetty so long as there is no contravention of requirements and provisions such as contained in S. 196, S. 196-A, S. 198, S. 199 Cr. P.C Such taking of cognizance would not be illegal simply because of the illegality of the investigation-vide H.N Rishbud v. State of Delhi”.

16. I may incidentally mention here that the decision of the Andhra Pradesh High Court in Public Prosecutor v. Ramayya . A.I.R 1958 A.P 392., where a Division Bench which included Basi Reddy J. had held that a report of a police officer in a non-cognizable case must be treated as a complaint was explained away by the learned Judges on the ground that the earlier decision of the Full Bench in Public Prosecutor v. Ratnavelu Chetty was not brought to the notice of the Division Bench when the case Public Prosecutor v. Ramayya was decided. I may at this stage refer to a recent Judgment of the Andhra Pradesh High Court in Ramanujachari, In Re14. In that case, after some witnesses had been examined at the trial the accused filed a petition in the High Court seeking to have the proceedings against him quashed. Kumarayya and Sharfuddin Ahmed, JJ. who heard the petition were satisfied that the investigation was illegal and that in the particular circumstances of the case it would not be said that the objection to the legality of the investigation had not been taken at an early stage. This casa is not an authority for saving that an objection regarding legality of investigation may be raised at any stage of the trial, as for example at the stage of argument, or at the stage of entering upon the defence or after a substantial part of the prosecution evidence has been adduced. Each case must, of course, necessarily depend on the facts of that case, but it is clear that after the commencement of the trial there is no provision of law under which the trial Court can itself cancel its proceedings and direct a fresh or further investigation. So much was conceded by the Counsel for the petitioner in Ramanujachari's case. It is of course always open to the High Court in exercise of its revisional powers and in exercise of its powers under S. 561-A to quash the proceedings before a subordinate Court and direct the subordinate Court to order such fresh or further investigation as may be desirable in the circumstances of the case. In dealing with applications for quashing of proceedings based on the ground of illegal investigation, the High Court will naturally take into consideration the stage at which objection to legality of investigation is raised and consider whether there is any likelihood of real prejudice to the accused. The accused must tell the Court how he is likely to be prejudiced or as Bose, J. very expressively stated in Mathew's case the Court must be told “just where the shoe pinches”. In Ramanujachari's case, on the facts and circumstances of the case, the learned judges appear to have been satisfied that there was a likelihood of real prejudice and therefore they quashed the proceedings before the Special Judge to the extent that they related to the evidence gathered during the course of illegal investigation and directed the Special Judge to take necessary steps for curing this illegality or rectifying the defect by ordering such investigation as the circumstances of the case warrant, keeping the case on file. It does not appear to have been brought to the notice of the learned Judges that the operative portion of their judgment would lead to the anomalous position that there would be simultaneous trial and investigation, a situation unknown to the Code of Criminal Procedure. On the view taken by the learned judges, the more appropriate course would have been to quash the proceedings before the lower court in entirely and cause a fresh investigation to be made. I have no doubt that had the attention of the learned Judges been drawn to the anomaly of a simultaneous investigation and trial they would not have allowed their order to create a situation where there would be such simultaneous trial and investigation.

17. The result of the above discussion is that illegal investigation does not prohibit a Court from taking cognizance of an offence on the report of a Police Officer based upon such illegal investigation. Where, however; an objection regarding the illegality of investigation is raised at a sufficiently early stage the Court may direct an investigation by an appropriate agency if it considers that the demands of justice require it. Where, however, a case proceeds to trial illegality of investigation cannot be pleaded as vitiating the trial unless it is shown that such illegality has resulted in a miscarriage of justice. In the present case two officers of the Railway Protection Force defected an offence committed by the 1st respondent and arrested him on the spot. Instead of themselves holding an enquiry as contemplated by the Railway Property (Unlawful possession) Act they sent the accused to the Sub Inspector of Police who investigated into the case and filed a charge-sheet. The trial proceeded without demur. It is difficult to see how the accused could possibly be said to have been prejudiced by the investigation made by the police which in this case was a mere formality because the offenders had been caught by the officers of the Railway Protection Force who were themselves competent under the Railway Property (Unlawful possession) Act to inquire into offences under that Act. I have therefore no hesitation in setting aside the acquittal of the 1st respondent. He is convicted of the offence under S. 3 of the Railway Property (Unlawful Possession) Act and sentenced to undergo rigorous imprisonment for a period of one year, which it may be noted, is the minimum sentence permissible under the Act. The appeal is accordingly allowed against the 1st respondent; The Appeal is dismissed against respondents 2 and 3.