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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.