Investigation: Section 17

Section 17 restricts who may investigate an offence under the Act. The restriction exists because the accused is a public servant and the investigation is capable of being used to harass him, so the legislature entrusted it to officers of a stated seniority. The section prescribes a different minimum rank for the Delhi Special Police Establishment, for the metropolitan areas and for the rest of the country, and it reserves the illicit enrichment offence for an officer of still higher rank. Since 2018 the section must be read with Section 17A, which requires prior approval before an enquiry or investigation into an official decision.

1. The Rank Requirement

1. In the Delhi Special Police Establishment, an officer not below the rank of an Inspector of Police.
2. In the metropolitan areas, an officer not below the rank of an Assistant Commissioner of Police.
3. Elsewhere, an officer not below the rank of a Deputy Superintendent of Police or an officer of equivalent rank.
4. An officer below those ranks may investigate, or arrest without warrant, only on the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be.
5. An Inspector of Police authorised by the State Government by general or special order may also investigate without such an order, which is the provision under which State anti-corruption bureaux employ inspectors.
6. Illicit enrichment. An offence of the kind now in Section 13(1)(b) is not to be investigated without the order of a police officer not below the rank of a Superintendent of Police, a safeguard directed at the offence most capable of being used oppressively.

2. Who Investigates in Practice

• The Central Bureau of Investigation, through the Delhi Special Police Establishment, for central government servants, employees of central undertakings and banks, and for cases entrusted to it by a State with consent or directed by a constitutional court. Its jurisdiction in a State depends on consent under Section 6 of the Act of 1946, or on a direction of the High Court or the Supreme Court.
• State anti-corruption bureaux and vigilance departments, for State government servants and employees of State undertakings.
• Lokayukta police wings, where the State legislation creates them, investigating matters referred by the Lokayukta.
• The Lokpal, which may direct an investigation by an agency including the Central Bureau of Investigation in respect of public servants within its jurisdiction, and which has its own inquiry wing for preliminary inquiries.

3. The Effect of a Defective Investigation

An investigation conducted by an officer below the prescribed rank, without the order of a magistrate, is irregular. The settled approach is that such a defect does not by itself vitiate the trial or the conviction; what must be shown is prejudice to the accused resulting in a failure of justice. The reasoning is that the trial, and not the investigation, is the stage at which guilt is determined, and a defect in the earlier stage is material only so far as it affects the fairness of the later one. The objection must therefore be taken at the earliest opportunity, and its force depends on what the irregularity actually produced, such as evidence that would not otherwise have been obtained.

4. Preliminary Enquiry and the Registration of a Case

The general rule, laid down in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, is that registration of a first information report is mandatory where the information discloses a cognizable offence, and that no preliminary enquiry is permissible in such a case. The Court carved out categories in which a preliminary enquiry may be made to ascertain whether a cognizable offence is disclosed, and corruption cases were among them, the enquiry being required to be completed within a short period stated in the judgment.

5. Search, Seizure and Bankers' Books

• Search and seizure are governed by the general criminal procedure law, which applies to proceedings under the Act subject to the modifications in Section 22.
• Section 18 permits an officer of the prescribed rank to inspect bankers' books so far as they relate to the accounts of persons suspected of an offence, or of their relatives or associates, without which an illicit enrichment case could not be built.
• Section 18A applies the Criminal Law Amendment Ordinance, 1944 to attachment and forfeiture, the special judge exercising the powers of the district judge under that Ordinance.

6. Electronic and Scientific Evidence

1. Recorded conversations. Audio recordings of a demand are the strongest corroboration available, and are routinely made during verification before a trap. Their admission requires proof of the recording, of the identity of the voices, of the absence of tampering and of compliance with the requirements for electronic records.
2. The certificate for electronic records. A record produced by a computer or an electronic device is admissible on production of the statutory certificate, now under the Bharatiya Sakshya Adhiniyam, 2023, and the requirement has been held to be mandatory where secondary evidence of an electronic record is led.
3. Call detail records and messages, proved in the same way, are used to establish contact between the accused, the middleman and the complainant, and the timing of the contact relative to the demand.
4. Voice samples. In Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1 the Supreme Court held that a judicial magistrate may order a person to give a voice sample for the purposes of investigation, and that such an order does not offend the protection against compelled self-incrimination, a voice sample being in the nature of physical evidence for comparison.
5. Digital traps. Where payment is made through an electronic channel, the trap is documented by the transaction record rather than by treated currency notes, and the corroboration comes from the banking records and from the communications surrounding the payment.

7. Related Topics and Provisions