Illegality followed in investigation of Offence under the PC Act 1988

[vinod kumar Namdeo]

Respected sir,
The following query is pertaining to investigation of alleged offence committed under PC act .

1. The Prevention of Corruption Act (PC Act) is silent on the procedure to be followed during investigation.

2.the concerned investigating agency (SPE Lokayukta) has NO written down and approved procedures/guidelines to be followed in the investigation of offences committed under section 7 and 13 (1) (d) of the PC Act. No such seperate guidelines is available with the Special Court (PC Act) also for conducting of enquiry/trial of offences under the PC Act.

3. Certain procedures followed by the Investigation agency are NOT as per Criminal Procedure Code (CrPC) and the Evidence collected is not as Indian Evidence Act.

4. Furthuremore, the procedures followed are not minor deviations but are deep rooted and can shake the prosecution story.

My Query:
1. Can the Legality of such procedures followed by the Investigating agencies be challanged in the court of law if the cognizance of the case has not been taken yet.

2.What is the relief available to the accused under such a situation if a prejudice has been caused to him due to above illegality committed by the investigating agency.

[Dr. Ashok Dhamija]

Before the cognizance is taken, you can ask for quashing of the FIR by filing a petition before the high court. But, generally, it is quite difficult to get the FIR quashed. You may have to show that even if the whole FIR is read at its face value, no offence is made out. Alternatively, you may approach the senior officers of the investigating agency with regard to whatever illegalities you claim have been committed during investigation. Thirdly, you may approach the sanctioning authority requesting him to refuse sanction for prosecution, pointing out whatever defects have been noticed by you.

After charge sheet is filed and cognizance is taken, you may apply for discharge.

If you succeed in your petition before high court, as mentioned above, the FIR itself may be quashed. Alternatively, if the sanctioning authority refuses to grant sanction for prosecution, the cognizance cannot be taken.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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