REPORTABLE

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No.     OF 2009                    (Arising out of SLP(Crl.) No. 4543  of 2008)     

SHARIFF AHMED & ORS. ...   Appellant(s)                         Versus    STATE (NCT OF DELHI) ...  Respondent(s)

J U D G M E N T

Dr.ARIJIT PASAYAT,J.

Leave granted.

A very short point of is involved in this petition.   The question is whether  

the court can direct that the Investigating agency has to focus  on any particular  

offence and do the investigation accordingly.   In the instant case by order dated  

9.7.2007  the  learned  Metropolitan  Magistrate,  Patialia  House  directed  the  

Investigating  Officer  to  add  Section  307  in  the  present  case  and  investigate  the  

matter properly.  The said order  was challenged before the High Court in Criminal  

M.C. No. 428/2008.  The High Court held that the course adopted by the learned  

Metropolitan Magistrate was permissible in law.  

Learned counsel for the appellant submitted that the

-2-

view taken by the High Court is contrary to the law as settled by this court in a series  

of cases.  Learned counsel

for the State submitted that  the law in  the point  has  been settled by a series  of  

decision starting from  

State of Bihar and Anr.  Vs. J.A.C.Saldanha and Ors.  1980 (1) SCC 554 Para 10

S.M.Sharma  Vs. Bipen Kumar Tiwari  1970 (3) SCR 946 Para 12

Abhinandan  Jha & Ors.  Vs. Dinesh Mishra (AIR 1968 SC 117) Para 16

King Emperor  Vs. Khwaja  Nazir Ahmad  1944 LR IA 203 Para 11;

and One of the latest cases being  M.C.Abraham and Anr.   Vs.  State of  

Maharashtra and Ors.  JT 2002 (10) SC 482

In the said case, the contention before this Court was that  

the High Courtwas in error in exercising jurisdiction under Article 226  

of  theConstitution  at  the  stage  when  the  Additional  Chief  Judicial  

Magistrate who had jurisdiction to entertain and try the case, had not  

passed  upon  the  issues  before  him,  by  taking  upon  itself  the  

appreciation  of  evidence  involving  facts  about  which  there  was  an  

acrimonious dispute between the parties and giving a clean bill to the  

suspects against whom the first information report was filed.  

In this connection this court relied upon the observations of  

the Privy Council in King Emperor  Vs.  Khwaja Nazir Ahmad : 1944  

LR 71 IA 203, which reads thus:-

-3-

"In India, as has been shown, there is a statutory right on the part of  

the  police  to  investigate  the  circumstances  of  an  alleged  cognizable  

crime without  requiring  any authority  from the  judicial  authorities  

and it would, as their Lordships think, be an unfortunate result if it

should be held possible to interfere with those statutory rights by an  

exercise of the inherent jurisdiction of the Court.  The functions of the  

judiciary and the police are complementary, not overlapping, and the  

combination of  individual  liberty with a due observance of  law and  

order  is  only  to  be  obtained  by  leaving  each  to  exercise  its  own  

function,  always,  of  course,  subject  to  the  right  of  the  Court  to  

intervene in an appropriate case when moved under Section 491 of the  

Criminal Procedure Code to give directions in the nature of  habeas  

corpus.  In such a case as the present, however, the Court's functions  

begin when a charge is preferred before it, and not until then".

Reference was also made to the observations of this Court in  

S.M. Sharma Vs. Bipen Kumar Tiwari  : (1970) 3 SCR 946, wherein  

this Court observed:

"It  appears  to  us  that,  though  the  Code  of  Criminal  

Procedure gives to the police unfettered power to investigate all cases  

where they suspect hat a cognizable offence has been committed, in  

appropriate cases an aggrieved person can always seek a remedy by  

invoking  the  power  of  the  High  Court  under  Article  226  of  the  

Constitution under which, if the High Court could be convinced that

-4-

the power of investigation has been exercised by a police officer mala  

fide, the High Court can always issue a writ of mandamus restraining  

the police officer from misusing his legal power".

This Court held in the case of J.A.C. Saldanha (supra) that  

there is a clear-cut and well demarcated sphere of activity in the field  

of crime detection and crime punishment.  It has been held as follows:

“Investigation of an offence is the field exclusively reserved  

by the executive through the police department, the superintendence  

over which vests in the State Government.  It is the bounden duty of  

the  executive  to  investigate,  if  an  offence  is  alleged,  and  bring  the

offender to book. Once it investigates and finds an offence having been  

committed, it is its duty to collect evidence for the purpose of proving  

the  offence.  Once  that  is  completed  and  the  investigating  officer  

submits report to the Court requesting the Court to take ongnizance of  

the offence under section 190 of the Code of Criminal Procedure, its  

duty comes to an end.  On a cognizance of the offence being taken by  

the Court, the police function of investigation comes to an end subject  

to  the  provision  contained  in  Section  173(8),  then  commences  the  

adjudicatory function of the judiciary to determine whether an offence  

has  been  committed  and  if  so,  whether  by  the  person  or  persons  

charged with the crime.  In the circumstances, the judgment and order  

of the High Court was set aside by this Court.

In the instant case the investigation is in progress.  It is not necessary  

for us to comment

-5-

on the tentative view of the investigating agency.  It is the statutory  

duty of the investigating agency to fully investigate the matter and then  

submit  a  report  to  the  concerned  Magistrate.   The  Magistrate  will  

thereafter proceed to pass appropriate order in accordance with law.  

It was not appropriate for the High Court in these circumstances to  

issue a direction that the case should not only be investigated, but a  

charge sheet must be submitted.  In our view the High Court  exceeded  

its jurisdiction in making this direction which deserves to be set aside.  

While  it  is  open  to  the  High  Court,  in  appropriate  cases,  to  give  

directions for prompt investigation etc., the High Court cannot direct  

the investigating agency to submit a report that is in accord with its  

views  as  that  would  amount  to  unwarranted  interference  with  the  

investigation of the case by inhibiting the exercise of statutory power  

by the investigating agency.”

In view of what is stated in MC.Abraham's case (supra) the order of High

court is clearly unsustainable and is set aside. We make it clear that we have not  

expressed any opinion  on the merits  of  the case.   It  is  brought  to  our notice by  

learned counsel for the State-respondent that the charge sheet has already been filed  

under Section 307, IPC.   But that was in compliance with this court's order. It is  

open to the Investigating Officer to file  the charge sheet afresh on the basis of the  

material collected during investigation.

-6-

The appeal is allowed to the aforesaid extent.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

            New Delhi, Aapril 24, 2009.