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CASE NO.: Special Leave Petition (crl.) 2711  of  1999

PETITIONER: R. SARALA

       Vs.

RESPONDENT: T.S. VELU AND ORS.

DATE OF JUDGMENT:       13/04/2000

BENCH: K.T. THOMAS & D.P. MOHAPATRA

JUDGMENT:

THOMAS, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J     Investigation  and prosecution are two different  facets in  the  administration  of criminal justice.  The  role  of Public Prosecutor is inside the court, whereas investigation is  outside  the  court.   Normally   the  role  of   Public Prosecutor commences after investigating agency presents the case  in  the  court on culmination of  investigation.   Its exception  is  that 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 opinion of  a Public Prosecutor under the orders of court.  Here is a case wherein  the investigation officer concerned is directed  by the  High Court to take back the case from the court whereat it was laid by him after completing the investigation and he is  further  directed to consult the Public  Prosecutor  and submit a fresh charge- sheet in tune with the opinion of the Public Prosecutor.  Is such a course permissible in law?

   A  summary of the factual background of this case can be given  thus:

   A  young bride - Selvi committed suicide on 29.12.97  by hanging  herself  on  a ceiling fan in the  bedroom  of  her nuptial home.  Her husband was Arasu Elango.  Their marriage was  solemnised  on 12.5.97.  As the interval between  their wedding  and  Selvi’s suicide was so short that  an  inquiry under  Section 174(3) of the Code of Criminal Procedure (for short  ‘the Code’) was held.  The Sub Divisional  Magistrate conducted  the  inquiry and submitted a report holding  that "it  is conclusively proved that due to mental  restlessness Selvi  had  committed  suicide;  no one is  responsible  and hence  it  is  informed that her death is not due  to  dowry harassment."

   However, the police continued with the investigation and submitted  a challan against Arasu Elango and his mother for

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the  offences  under  Section 304-B and 498-A  of  the  IPC. Selvi’s  father  -  the first respondent herein  -  was  not satisfied  with  the  aforesaid challan  as  Arasu  Elango’s sister  (the  present  appellant) and her  father  were  not arraigned  as  accused.   Hence he moved the High  Court  of Madras  under Section 482 of the Code.  Learned Single Judge of  the High Court who disposed of the above petition by  an order  dated  8.2.1999  has directed thus:   "Hence,  it  is ordered  that  papers  shall  be placed  before  the  Public Prosecutor,  Cuddalore District as it is without any further investigation  and  he shall render an impartial opinion  on the  matter and thereafter an amended charge-sheet shall  be filed in the concerned court."

   Appellant’s father (V.  Ramalingam) on coming to know of the  said  order filed a petition before the learned  Single Judge  for  recalling it on the main ground that neither  he nor  his  daughter (appellant) was heard nor were they  made parties  in  the proceedings.  But the learned Single  Judge dismissed  the petition on the main premise that Section 362 of  the  Code  contains a bar against  recalling  any  order passed  under  the  Code.  Hence the  appellant  filed  this appeal in challenge of both the orders.

   No  endeavour was made before us to canvass against  the correctness  of the view adopted by the learned Single Judge that  the order dated 8.2.1999 could not be recalled by  him due  to  the bar contained in Section 362 of the Code.   But even  assuming  it  be so, that does not bar this  court  in considering the legality of that order in this appeal.

   Mr.   S.   Sivasubramaniam, learned senior counsel,  who argued  for  the  appellant, contended that  learned  Single Judge  had  seriously erred in directing  the  investigating officer  to  submit the amended charge sheet  in  accordance with  the  opinion  of  the   Public  Prosecutor.   Shri  V. Balachandran,   learned  counsel  arguing   for  the   first respondent,  tried  to  support the impugned  order  on  the premise   that  there  is   nothing  objectionable  for  the investigation  officer  to  consult  the  Public  Prosecutor before laying a report under Section 163(2) of the Code.

   The question here is not simply whether an investigating officer,  on his own volition or on his own initiative,  can discuss  with the Public Prosecutor or any legal talent, for the  purpose  of forming his opinion as to the report to  be laid  in the court.  Had that been the question involved  in this case it would be unnecessary to vex our mind because it is  always open to any officer, including any  investigating officer,  to get the best legal opinion on any legal  aspect concerning  the  preparation  of any report.  But  the  real question  is, should the High Court direct the investigating officer  to take opinion of the Public Prosecutor for filing the charge sheet.

   Investigation is defined in Section 2(h) of the Code, as including  "all  the  proceedings under this  Code  for  the collection  of evidence conducted by a police officer or  by any  person (other than a Magistrate) who is authorised by a Magistrate  in  this behalf." We are only concerned in  this case  with  the  investigation to be conducted by  a  police officer  and hence the latter limb of the definition has  no relevance  now.  Chapter XII of the Code contains provisions regarding  "information  to the police and their  powers  to investigate".

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   After  dealing with various aspects of the investigation from  Section  154 to Section 168 of the Code,  the  statute says in the next two sections regarding the subsequent step. Section  169 of the Code enjoins on the officer in charge of the  police  station concerned to release the  accused  from custody on executing a bond if it appears to him that "there is  no sufficient evidence or reasonable ground of suspicion to  justify the forwarding of the accused to a  magistrate". Section  170 of the Code directs that if upon  investigation "it  appears to the officer in charge of the police  station that  there  is sufficient evidence or reasonable ground  as aforesaid,  such  officer  shall forward the  accused  under custody  to a magistrate empowered to take cognizance of the offence  upon  a  police report".  Section 173(1)  casts  an obligation   for   completing   the  investigation   without unnecessary delay and sub-section (2) enjoins on the officer in charge of the police station to forward to the magistrate a  report in the form prescribed by the State Government, on completion  of  such investigation.  The aforesaid power  of the  officer  in charge of the police station  is  subjected only  to the supervision of superior police officers in rank as  envisaged in Section 36 of the Code.  There is no  stage during which the investigating officer is legally obliged to take  the  opinion of a Public Prosecutor or any  authority, except the aforesaid superior police officer in rank.

   There is no material difference regarding general powers of  investigation by police as between the present Code  and the corresponding provisions contained in Chapter XIV of the erstwhile Code of Criminal Procedure 1898.  In H.N.  Rishbud and Inder Singh vs.  The State of Delhi {1955(1) SCR 1150} a three  Judge  Bench  of this Court,  after  delineating  the different  steps  in  investigation as contemplated  in  the Code,  has  pointed out that the formation of  the  opinion, whether  or  not  there is a case to place  the  accused  on trial, should be that of the officer in charge of the police station  and  none else.  Following observations are  to  be noted in this context:

   "The  scheme  of  the Code also shows that while  it  is permissible  for  an officer in charge of police station  to depute  some  subordinate officer to conduct some  of  these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer  in  charge  of the police station, it  having  been clearly  provided  in section 168 that he should report  the result  to the officer in charge of the police station.   It is also clear that the final step in the investigation, viz. The formation of the opinion as to whether or not there is a case  to  place  the accused on trial is to be that  of  the officer  in  charge  of  the police station.   There  is  no provision permitting delegation thereof but only a provision entitling  superior  officers  to supervise  or  participate under Section 551."

   Public  Prosecutor is appointed, as indicated in Section 24  of  the Code, for conducting any prosecution, appeal  or other  proceedings  in the court.  He has also the power  to withdraw  any case from the prosecution with the consent  of the  court.   He is the officer of the court.   Thus  Public Prosecutor  is  to  deal  with  a  different  field  in  the administration  of  justice  and  he   is  not  involved  in investigation.   It  is  not in the scheme of the  Code  for supporting  or sponsoring any combined operation between the

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investigating  officer and the Public Prosecutor for  filing the report in the court.

   In this context a reference can be made to the following observation  made  by  the Judicial Committee of  the  Privy Council in Emperor vs.  Khwaja Nazir Ahmad (AIR 1945 PC 18):

   "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."

   Following the above, a two Judge Bench of this Court has stated  in  Abhinanadan Jha vs.  Dinesh Mishra(AIR  1968  SC 117) as follows:

   "We  have  already pointed out that  the  investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to  whether, on the material covered and collected a case is made  out  to  place the accused before the  Magistrate  for trial,  and  the submission of either a charge- sheet, or  a final  report is dependent on the nature of the opinion,  so formed.   The formation of the said opinion, by the  police, as   pointed  out  earlier,  is   the  final  step  in   the investigation,  and  that final step is to be taken only  by the police and by no other authority."

   In  this  context  we  may   also  point  out  that  the investigating  officer, though is subject to supervision  by his superiors in rank is, not to take instructions regarding investigation of any particular case even from the executive government  of  which  he is a  subordinate  officer.   This position  which  was well delineated by the celebrated  Lord Denning,  has since been followed by this Court.  In R.  Vs. Metropolitan  Police  Commissioner [1968 (1) All.E.R.   763] Lord Denning had said thus:

   "I  have  no hesitation, however, in holding that,  like every  constable in the land, he should, and is, independent of  the  executive.  He is not subject to the orders of  the Secretary  of  State..I  hold  it  to be  the  duty  of  the Commissioner  of Police, as it is of every chief  constable, to  enforce  the law of the land.  He must take steps so  to post  his men that crimes may be detected;  and that  honest citizens  may  go  about their affairs in  peace.   He  must decide   whether  or  not  suspected   persons  are  to   be prosecuted;   and, if need be, bring the prosecution or  see that  it is brought;  but in all these things he is not  the servant  of anyone, save of the law itself.  No Minister  of the  Crown  can  tell him that he must, or  must  not,  keep observation on this place or that;  or that he must, or must not,  prosecute  this man or that one.  Nor can  any  police authority   tell  him  so.    The  responsibility  for   law enforcement lies on him.  He is answerable to the law and to the law alone."

   In  Vineet Narain vs.  Union of India [1998 (1) SCC 226] a  three-judge  bench of this court after quoting the  above passage  has  stated:  "There can hardly be any  doubt  that obligation  of the police in our constitutional scheme is no less."

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   In  State  vs.  Raj Kumar Jain [1998(6) SCC 551]  a  two judge  bench considered the legality of an order passed by a Special  Judge  before  whom the CBI filed final  report  in respect of a junior engineer who was pitted against offences under  the  Prevention  of Corruption Act.  The CBI  in  the report  held  that  the allegations made  against  him  were unsubstantiated.   But the Special Judge declined to  accept the  said report as in his opinion the CBI should have taken the view of the Sanctioning Authority.  So the Special Judge directed  the  CBI  to conduct further  investigation  after approaching  the  Sanctioning  Authority.  Though  the  High Court  of  Delhi did not interfere with the said  direction, this  Court  interfered  with it for which  their  Lordships followed  the decision in Abhinandan Jha (supra).  The bench then observed thus:

   "Viewed in that context, the CBI was under no obligation to place the materials collected during investigation before the  sanctioning authority, when they found that no case was made  out against the respondent.  To put it differently, if the  CBI had found on investigation that a prima facie  case was  made  out against the respondent to place him on  trial and  accordingly  prepared a charge-sheet (challan)  against him,  then  only the question of obtaining sanction  of  the authority  under  Section 6(1) of the Act would have  arisen for  without  that the Court would not be competent to  take congnizance  of  the charge-sheet.  It must,  therefore,  be said  that  both the Special Judge and the High  Court  were patently  wrong  in observing that the CBI was  required  to obtain  sanction  from  the   prosecuting  authority  before approaching the Court for accepting the report under Section 173(2) Cr.PC for discharge of the respondent."

   It  is worthy of notice that even when law required that prosecution could be commenced only with the sanction of the authority  concerned  this  Court took the stand  that  such Sanctioning   Authority   is   not  a   consultee   of   the investigating  officer  to  form his opinion  regarding  the final  shape of investigation.  The position in the  present case  is  even  much  lighter and  hence  the  investigating officer  cannot be directed to be influenced by the  opinion of the Public Prosecutor.

   The  High Court has committed an illegality in directing the final report to be taken back and to file a fresh report incorporating the opinion of the Public Prosecutor.  Such an order  cannot  stand legal scrutiny and hence we allow  this appeal and set aside the impugned order.