BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/02/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.8997 of 2006 Vel Raj ... Petitioner Vs. 1. The State represented by The Inspector of Police, Kurangani Police Station, 2.The Superintendent of Police, Theni District. ... Respondents Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to direct the second respondent herein to transfer the investigation in Cr.NO.38 of 2006 pending on the file of the first respondent to any other specialized police agency viz., CB CID of the District Crime Branch and to take appropriate legal action under the Code of Criminal Procedure. !For Petitioner ... Mr.Veera.Kathiravan ^For Respondents ... Mr.M.Ravishankar Govt. Advocate (Crl.Side) :ORDER
This petition is filed to direct the second respondent herein to transfer
the investigation in Cr.NO.38 of 2006 pending on the file of the first
respondent to any other specialized police agency viz., CB CID of the District
Crime Branch and to take appropriate legal action under the Code of Criminal
Procedure.
2. Heard both sides.
3. The main grievance of the petitioner is that there is a case and
counter case. At the instance of the petitioner, the case registered by the
police was referred to as ‘Mistake of Fact’ on one and the same day of lodging
of the complaint which smacks the prejudice and bias of the police. However,
the police took steps and proceeded with the complaint lodged by the
petitioner’s opponent.
4. The learned Government Advocate (Criminal Side) would highlight that by
this time, the police sent intimation to the learned Magistrate relating to the
complaint by the petitioner that the said complaint was borne out of ‘Mistake of
Fact’. However, the police laid the police report relating to other complaint.\
5. The learned Counsel for the petitioner would strenuously argue that
under Section 482 of the Code of the Criminal Procedure, this Court can exercise
its power and give direction to the police and preferably to some other police
officer to further investigate into the matter.
6. At this juncture, I would like to recollect and refer the decision of
the Honourable Apex Court in Prakash Singh Badal v. State of Punjab reported in
(2007) 1 Supreme Court Cases 1. Certain excerpts from it, would run thus:
“67. It has to be noted that in Section 154(1) of the Code, the
legislature in its collective wisdom has carefully and cautiously used the
expression “information” without qualifying the same as in Sections 41(1)(a) or
(g) of the Code wherein the expressions “reasonable complaint” and “credible
information” are used. Evidently, the non-qualification of the word
“information” in Section 154(1) unlike in Sections 41(1)(a) and (g) of the Code
may be for the reason that the police officer should not refuse to record an
information relating to the commission of a cognizable offence and to register a
case thereon on the ground that he is not satisfied with the reasonableness or
credibility of the information. In other words, “reasonableness” or
“credibility” of the said information is not a condition precedent for
registration of a case. A comparison of the present Section 154 with those of
the earlier Codes will indicate that the legislature had purposely thought it
fit to employ only the word “information” without qualifying the said word.
Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by
the Legislative Council of India read that “every complaint or information”
preferred to an officer in charge of a police station should be reduced into
writing which provision was subsequently modified by Section 112 of the Code of
1872 (Act 10 of 1872) which thereafter read that “every complaint” preferred to
an officer in charge of a police station shall be reduced in writing. The word
“complaint” which occurred in previous two Codes of 1861 and 1872 was deleted
and in that place the word “information” was used in the Codes of 1882 and 1898
which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An
overall reading of all the Codes makes it clear that the condition which is sine
quo non for recording a first information report is that there must be an
information and that information must disclose a cognizable offence.
68. It is, therefore, manifestly clear that if any information disclosing
a cognizable offence is laid before an officer in charge of a police station
satisfying the requirements of Section 154(1) of the Code, the said police
officer has no other option except to enter the substance thereof in the
prescribed form, that is to say, to register a case on the basis of such
information. ….
70. The next key question that arises for consideration is whether the
registration of a criminal case under Section 154(1) of the Code ipso facto
warrants the setting in motion of an investigation under Chapter XII of the
Code.
71. Section 157(1) requires an officer in charge of a police station who
“from information received or otherwise” has reason to suspect the commission of
an offence–that is a cognizable offence-which he is empowered to investigate
under Section 156, to forthwith send a report to a Magistrate empowered to take
cognizance of such offence upon a police report and to either proceed in person
or depute anyone of his subordinate officers not being below such rank as the
State Government may, by general or special order, prescribe in this behalf, to
proceed to the spot, to investigate the facts and circumstances of the case and
if necessary, to take measures for the discovery and arrest of the offender.
This provision is qualified by a proviso which is in two parts – (a) and (b).
As per clause (a) the officer in charge of a police station need not proceed in
person or depute a subordinate officer to make an investigation on the spot if
the information as to the commission of any such offence is given against any
person by name and the case is not of a serious nature. According to clause
(b), if it appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation he shall not investigate the
case. Sub-section (2) of Section 157 demands that in each of the cases
mentioned in clauses (a) and (b) of the proviso to sub-section (1) of Section
157, the officer in charge of the police station must state in his report,
required to be forwarded to the Magistrate his reasons for not fully complying
with the requirements of sub-section (1) and when the police officer decides not
to investigate the case for the reasons mentioned in clause (b) of the proviso,
he in addition to his report to the Magistrate, must forthwith notify to the
informant, if any, in such manner as may be prescribed by State Government, the
fact that he will not investigate the case or cause the case to be investigated.
Section 156(1) which is to be read in conjunction with Section 157(1) states
that any officer in charge of a police station may without an order of a
Magistrate, investigate any cognizable case which a court having jurisdiction
over the local area within the limits of the police station concerned would have
power to enquire into or try under provisions of Chapter XIII. Section 156(3)
vests a discretionary power on a Magistrate empowered under Section 190 to order
an investigation by a police officer as contemplated in Section 156(1). It is
pertinent to note that this provision does not empower a Magistrate to stop an
investigation undertaken by the police. (See State of Bihar v J.A.C.Saldanha).
In that case, power of the Magistrate under Section 156(3) to direct further
investigation after submission of a report by the investigating officer under
Section 173(2) of the Code was dealt with. It was observed as
follows:(J.A.C.Saldanha case [(1980) 1 SCC 554:1980 SCC (Cri) 272], SCC p.568,
para 19).
“19. The power of the Magistrate under Section 156(3) to direct further
investigation is clearly an independent power and does not stand in conflict
with the power of the State Government as spelt out hereinbefore. The power
conferred upon the Magistrate under Section 156(3) can be exercised by the
Magistrate even after submission of a report by the investigating officer which
would mean that it would be open to the Magistrate not to accept the conclusion
of the investigating officer and direct further investigation. This provision
does not in any way affect the power of the investigating officer to further
investigate the case even after submission of the report as provided in Section
173(3).”
The above position has been highlighted in State of Haryana v. Bhajan Lal[1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426]. [emphasis supplied.]
7. The Honourable Apex Court set at rest all controversies in clear terms
and posited that under Section 156(3) Cr.P.C., the Magistrate could order
further investigation as such the dictum of the Honourable Apex Court, solves
the problem of the petitioner.
8. The learned Counsel for the petitioner would also submit that the
police in fact has not so far submitted the report as ‘Mistake of Fact’, even
though mere such notice was served on him.
9. Be that as it may, this Court could remedy such problem, by the
following direction:
If not already the report relating to ‘Mistake of Fact’ has been submitted
by the police to the Magistrate concerned, the same shall be submitted within a
period of fifteen days from this date; thereupon, the Magistrate concerned
shall put the petition on notice about it. If on the other hand, the report is
already available with the Magistrate, the Magistrate shall fix the date by
issuing notice to the petitioner; thereupon, the petitioner shall file his
protest petition within fifteen days. The Magistrate shall exercise his powers
adhering strictly to the mandates contemplated under the aforesaid decision of
the Honourable Apex Court.
10. With the above observation, this petition is closed.
rsb
To
1.The Inspector of Police,
Kurangani Police Station,
2.The Superintendent of Police,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of the Madras High Court,
Madurai.