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PETITIONER: NAVINCHANDRA N.MAJITHIA

       Vs.

RESPONDENT: STATE OF MEGHALAYA AND OTHERS C

DATE OF JUDGMENT:       16/10/2000

BENCH: R.P.Sethi, S.N.Variva, K.T.Thomas

JUDGMENT:

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     THOMAS,  J.  The police inaction to carry on with  the investigation  in a particular criminal case was  attributed to financial crunch of the State and the High Court directed the  complainant  to supply funds to the police to meet  the cost.   The party against whom the case was filed felt  that such  privately  funded investigation tantamounts  to  hired investigation which would mar the sanctity of the purpose of statutory  investigation and hence he approached this  Court for  special  leave to appeal.  Leave granted.  Facts  which led to the issuance of the aforesaid direction, briefly, are the  following:  A Mumbai based company claimed ownership of certain  land situated at a commercially strategic  location in  the city of Mumbai.  Another company the headquarters of which  is  at  Shillong  in  Meghalaya,  entered  into  some transaction  with the Mumbai Company in respect of the  said land.   Further  details  of  the   disputes  are  not  very necessary  for this appeal except stating from the stage  of commencement of the criminal proceedings.  An FIR was lodged by  the  Shillong company with the Shillong police  alleging that  the Mumbai Company has cheated Shillong Company to the tune  of Rupees nine crores.  Sometime after lodgment of the said  FIR the Shillong Company observed that the police  was not  moving  ahead  with  the investigation as  fast  or  as distant as the company expected.  Hence the Shillong company filed  a Writ Petition before the High Court of Guwahati for appropriate  directions.   A single judge of the High  Court passed a direction the extract of which reads thus:

     In  the  circumstances  I  direct that  in  case  the petitioner  is  ready to deposit the amount which  would  be required to undertake the investigation and for the visit of the  senior police officers to Bombay in connection with the investigation  work the state government shall allow them to do  so and direct the investigating team to proceed in right earnest and speedily.

     It  is further directed that the amount that would  be required to undertake the investigation will be intimated to the petitioner within one week and the petitioner shall make the deposit of the amount within three days thereafter.

     As  the  above direction was obviously unpalatable  to the  Director General of Police, Meghalaya, he and the  Home Secretary  of the State filed an appeal along with the State before  a  Division Bench of the High Court challenging  the

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said direction issued by the Single Judge.  According to the State,  the  investigation has to be conducted in Mumbai  by the Maharashtra police and hence the direction issued by the Single  Judge  is unworkable.  But the said  contention  was repelled  by  the Division Bench.  Regarding  the  direction issued  by the Single Judge to get funds from the  aggrieved complainant,  the  Division  Bench   did  not  dilate  much. Nevertheless  learned judges did not interfere with the said direction  and observed that in any case the learned single judge  has  passed  a just and proper order in view  of  the peculiar facts and circumstances of the case.

     In  this  context we may point out that appellant  was not  brought into the array even at the above stage.  He was kept  in  dark  about all what happened at Shillong  as  the appellant  was doing his business confining to the radius of Mumbai.   But when he was called by the police in connection with  the FIR lodged at Shillong, he learned about the facts which  preceded till then.  Hence he moved the High court of Bombay  in  a  Writ  Petition   under  Article  226  of  the Constitution   for   quashing  the   FIR  and  the   further proceedings  taken thereon.  But a Division Bench of  Bombay High   Court  expressed  helplessness  in  the  matter   and dismissed the Writ Petition on the sole ground that the High Court of Bombay has no jurisdiction under Article 226 of the Constitution to deal with an FIR registered at Shillong.

     When  the  said  Writ   Petition  was  dismissed,  the appellant  rushed  to  this  Court with  two  Special  Leave Petitions, one in challenge of the aforesaid judgment of the Bombay High Court which dismissed his Writ Petition for want of  territorial  jurisdiction and the other in challenge  of the  judgment  of  the Division Bench of the  Guwahati  High Court  as  per  which  the Shillong police  is  directed  to collect funds from the respondent company.

     We may point out, contextually, that the special leave petition  filed by the appellant against the judgment of the High  Court was separately dealt with by granting leave  and judgment  in that appeal was pronounced.  It is reported  as Navinchandra N.Majithia vs.  State of Maharashtra and others JT  2000  (10)  2 SC 61.  This Court by  the  said  judgment ordered transfer of the FIR lodged by the respondent company with  the  Shillong police for investigation of  the  Mumbai police.

     It  was thought that as the grievance of the appellant was redressed by the aforesaid direction made by this Court. But  learned counsel for the appellant as well as the  State of  Meghalaya  submitted that the judgment of  the  Guwahati High  Court  would open a Pandoras box as many would  claim the  same  benefit and the role of the State function  would plummet.  The counsel further said that the direction cannot be  allowed  to  remain in force as it is  contrary  to  the scheme  of  the Code of the Criminal Procedure.  Hence  they insisted on a decision in this appeal on merits.

     Thus,  the  question has bogged down to this:   Can  a statutory  investigating  agency  be   directed  to   obtain financial assistance from private parties for meetin

     the    expenses   required     for   conducting    the investigation.

     Investigation is defined in Section 2(h) of the Code

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as  including  all the proceedings under this Code for  the collection of evidence conducted by police officer or by any person  (other  than  a magistrate) who is authorised  by  a magistrate  in  this behalf. Hence no  proceedings  outside provision  of  the Code can be dragged into the contours  of investigation.   In  other  words, any  proceedings  falling outside  the  ambit  of  the Code will not  be  regarded  as investigation for the purpose of the Code.  Under the scheme of  the  Code,  investigation  commences  with  lodgment  of information relating to the commission of an offence.  If it is a cognizable offence, the officer-in-charge of the police station  to  whom the information is supplied orally  has  a statutory duty to reduce it to writing and get the signature of  the  informant.   He shall enter the  substance  of  the information,  whether given in writing or reduced to writing as  aforesaid,  in  a book prescribed by the State  in  that behalf.   The Officer-in-charge has no escape from doing  so if  the  offence mentioned therein is a cognizable  offence, whether  or not such offence was committed within the limits of   that  police  station.   But   when  the   offence   is non-cognizable,  the officer-in-charge of the police station has  no  obligation  to  record it if the  offence  was  not committed  within the limits of his police station.  Section 156(1)  of  the Code says that the said police  officer  can investigate  any cognizable offence covered by the said FIR, if  the  said offence could be inquired into or tried  by  a Court having jurisdiction over the local area of that police station.   If the offence was committed outside the limit of such  police  station, the officer-in-charge of  the  police station  can  transmit the FIR to the police station  having such   territorial   jurisdiction.    Various  States   have formulated  rules for effecting transfer of such FIR in such contingencies.

     Investigation   thereafter  would   commence  and  the investigating  officer  has  to go step by step.   The  Code contemplates  the  following steps to be carried out  during such investigation:

     (1)  Proceeding to the spot;  (2) ascertainment of the facts  and  circumstances  of the case;  (3)  discovery  and arrest  of  the  suspected   offender;   (4)  collection  of evidence relating to the commission of the offence which may consist  of    (a)  the   examination  of  various  persons (including   the  accused)  and   the  reduction  of   their statements  into writing, if the officer thinks fit, (b) the search  of places of seizure of things considered  necessary for  the investigation and to be produced at the trial;  and (5)  formation of the opinion as to whether on the  material collected  there  is  a case to place the accused  before  a magistrate  for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Sec.173.

     (vide HN Rishbud vs.  State of Delhi [AIR 1955 SC 196} and  State  of Madhya Pradesh vs.  Mubarak Ali [AIR 1959  SC 707]).

     All  the above duties are conferred by the statute  on the  police  and  they  shall be carried  out  as  they  are statutory  duties.  The sublime idea behind formulating such steps   for  conducting  investigation  is  to  enable   the statutory   authority  to  independently   carry   out   the investigation  without  being  influenced  by  any  of   the interested parties.  Investigation must not only be fair but impartial  and  the  conclusion reached by  them  should  be

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unbiased.

     A  Division Bench of the Madras High Court had pointed to that object of the statutory investigation in re Muddamma Malla  Reddy  [1954  Crl.L.J.167]   through  the   following observations:

     The  investigating police are primarily the guardians of  the liberty of innocent persons.  A heavy responsibility devolves  on  them of seeing that innocent persons  are  not charged  on irresponsible and false implication.  There is a duty  cast on the investigating police to scrutinize a first complaint  in  which number of persons are  implicated  with rigorous  care and to refrain from building up a case on its basis unless satisfied of its truth.

     In Sirajjuddin vs.  State of Madras [1970 (3) SCR 931] this  Court said thus, after referring to various provisions in the Code dealing with investigation:

     All  the  above provisions of the Code are  aimed  at securing   a   fair  investigation   into  the   facts   and circumstances  of  the criminal case;  however  serious  the crime  and howsoever incriminating the circumstances may  be against  a person supposed to be guilty of a crime the  Code of  Criminal  Procedure aims at securing a conviction if  it can  be had by the use of utmost fairness on the part of the officers  investigating  the crime before the lodging  of  a charge-  sheet.   Clearly the idea is that no one should  be put  to the harassment of a criminal trial unless there  are good and substantial reasons for holding it.

     The  said observations were followed by this Court  in State  of  Rajasthan vs.  Gurcharandas Chadha [1980 (1)  SCC 250].

     The  Code  does  not recognise  private  investigating agency.   If  any  person is interested in hiring  any  such private  agency, he may do so at his own risk and cost,  but such  investigation  would not be regarded as  investigation made  under  law.   Any evidence collected in  such  private investigation   and   any  conclusion    reached   by   such investigators  cannot  be presented by Public Prosecutor  in any  trial.  Of course it may be possible for the defence to present  such evidence.  In this context, we may refer to  a recent  decision  of this Court R.Sarala vs.  TS Velu  [2000 (4) SCC 459].  This Court said that even a Public Prosecutor cannot   be   officially  involved   during  the  stage   of investigation.   The  following  observations made  by  this Court in the said decision will be useful:

     Investigation  and  prosecution   are  two  different facets  in the administration of criminal justice.  The role of  a  Public  Prosecutor  is   inside  the  court,  whereas investigation  is outside the court.  Normally the role of a public  Prosecutor commences after the investigating  agency presents   the  case  in  the   court  on   culmination   of investigation.   Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned  at any stage.  Involving the Public Prosecutor in investigation  is unjudicious as well as pernicious in  law. At any rate no investigating agency can be compelled to seek the  opinion of a Public Prosecutor under the orders of  the Court.

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     The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous  influence.   The   police  investigation  should necessarily  be with the fund supplied by the State.  It may be  possible for a rich complainant to supply any amount  of fund  to  the police for conducting investigation  into  his complaint.   But  a  poor man cannot afford  to  supply  any financial  assistance to the police.  It is an  acknowledged reality  that  he who pays the piper calls the tune.  So  he would  call  the shots.  Its corollary is that somebody  who incurs  the  cost  of  anything would  normally  secure  its control  also.  In our constitutional scheme, the police and other statutory investigating agency cannot be allowed to be hackneyed  by those who can afford it.  All complaints shall be  investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.

     Financial   crunch  of  any   state  treasury  is   no justification  for allowing a private party to supply  funds to   the   police  for    conducting   such   investigation. Augmentation  of  the  fiscal  resources of  the  State  for meeting  the expenses needed for such investigations is  the lookout  of  the executive.  Failure to do it is no  premise for  directing  a  complainant  to   supply  funds  to   the investigating  officer.  Such funding by interested  private parties  would vitiate the investigation contemplated in the Code.   A  vitiated  investigation  is  the  precursor   for miscarriage  of  criminal  justice.  Hence any  attempt,  to create  a  precedent  permitting private parties  to  supply financial   assistance   to  the   police   for   conducting investigation,  should be nipped in the bud itself.  No such precedent  can secure judicial imprimatur.  If the  impugned judgments  are  allowed  to  stand,  it  would  set  up   an unwholesome  precedent.   Hence we set aside the  directions contained  in the impugned judgments for supplying funds  to the police.