STATE OF BIHAR Vs LALU SINGH
Bench: CHANDRAMAULI KR. PRASAD,JAGDISH SINGH KHEHAR
Case number: Crl.A. No.-001883-001883 / 2013
Diary number: 25080 / 2009
Advocates: GOPAL SINGH Vs
T. MAHIPAL
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1883 OF 2013 (@SPECIAL LEAVE PETITION (CRL.) NO. 7066 OF 2009)
STATE OF BIHAR & ANR. … APPELLANTS
VERSUS
LALU SINGH …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
While dismissing the Writ Petition, the High
Court has made observations which have far reaching
consequences and accordingly the State of Bihar,
aggrieved by the same has preferred this Special
Leave Petition. The observations made read as
follows:
“I have no doubt in taking this view that under Section 36 of the Code of Criminal Procedure, the higher police officials have got same powers as available to the officer-in-charge of a police station under them but the
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power is available only with respect to supervising the investigation or participating into the investigation to some extent but under section 173(2) of the Code of Criminal Procedure, the final view over the investigation of a case with regard to filing charge sheet or final form has to be taken by the concerned officer-in-charge only and he only has the authority to file the charge sheet in the case”
While doing so, however, the High Court has not
quashed the report submitted by the Inspector of the
Criminal Investigation Department of the State
Government.
It is the aforesaid observation, which is the
subject matter of this special leave petition.
Leave granted.
Facts lie in a narrow compass:
On the basis of an oral statement made by one
Shail Kumari Devi before the officer-in-charge of
Marhaura Police Station, Marhaura, P.S. Case No. 148
of 2004 was registered under Section 302/34 of the
Indian Penal Code and Section 27 of the Arms Act.
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The officer-in-charge of the Police Station took up
the investigation, but before he could complete the
same, and submit report in terms of Section 173 of
the Code of Criminal Procedure (hereinafter referred
to as the “Code”), the Director General of Police
entrusted the investigation to the Criminal
Investigation Department, (hereinafter referred to as
“C.I.D.”) and the task for conducting the
investigation was assigned to an Inspector. The
Inspector of C.I.D. conducted the investigation and
submitted the charge-sheet against the accused
persons. On consideration of the charge-sheet and
the materials collected during the course of
investigation, the Chief Judicial Magistrate, Saran
took cognizance of the offence and directed for
issuance of process. One of the accused, namely Lalu
Singh, aggrieved by the same, preferred writ petition
before the High Court for quashing the prosecution,
inter alia, on the ground that under Section 173(2)
of the Code only an officer in-charge of a Police
station has the authority to do that and, therefore,
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the charge-sheet submitted by the Inspector, C.I.D.
is fit to be quashed.
The High Court considered the aforesaid
submission and though it declined to quash the
charge-sheet, it made the observation quoted above
and held that it is the officer-in-charge only who
can file the charge-sheet.
We have heard Mr. Manish Kumar, learned Counsel
for the appellants and Mr. Nagendra Rai, learned
Senior Counsel for the respondent.
Mr. Kumar contends that the Inspector of C.I.D.
possesses the power to submit report under Section
173(2) of the Code and the observation made by the
High Court is erroneous. Mr. Rai, however, submits
that in the facts of the present case, the High court
was justified in making the observations as quoted
above.
In view of the rival submissions, we deem it
expedient to analyse the scheme of the Code and the
provisions of the Bihar Police Manual. Section 173
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of the Code contemplates submission of report on
completion of investigation. Section 173(2) of the
Code which is relevant for the purpose reads as
follows:
“173 – Report of police officer on completion of investigation-
(1) xxx xxx xxx
(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating –
(a) the names of the parties;
(b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170;
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(h) whether the report of the medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
xxx xxx xxx”
From a plain reading of the aforesaid
provision, it is evident that it is the officer-in-
charge of a police station who is authorized to
forward report in the prescribed form to the
Magistrate empowered to take cognizance. Section 36
of the Code deals with the power of superior officers
of police with reference to the officer-in-charge of
a police station, same reads as follows:
“36. Powers of superior officers of police.- Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to
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which they are appointed, as may be exercised by such officer within the limits of his station.”
Therefore, under the scheme of the Code the
power to submit report in terms of Section 173(2) of
the Code is with the officer-in-charge of the police
station. Further, in view of Section 36 of the Code,
police officers superior in rank to an officer-in-
charge of the police station throughout the local
area have been conferred with the authority to
exercise the same power as that of officer-in-charge
of police station. In the present case, the
investigation has been conducted by Inspector of
C.I.D. and he had submitted the report under Section
173(2) of the Code. Therefore, the question is as to
whether the Inspector of C.I.D. can be treated in law
as the officer-in-charge of the police station for
the purpose of submitting the report contemplated
under Section 173(2) of the Code. The State
Government, in exercise of the powers under Sections
7 and 12 of the Police Act, 1861, has framed the
Bihar Police Manual. Chapter 15 thereof deals with
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the constitution and functions of the Criminal
Investigation Department. Rule 431, with which we
are concerned in the present appeal, reads as
follows:
“431.(a) Sub-Inspectors of the department deputed to districts have not the powers of an officer in charge of a police-station nor of the subordinate of such an officer, unless they are posted to a police- station for the purpose of exercising such powers. It follows that unless so posted they have not the powers of investigation conferred by Chapter XII, Cr.P.C. and their functions are confined to supervising or advising the local officers concerned. If for any reason it be deemed advisable that a Sub-Inspector of the department should conduct an investigation in person, the orders of the Inspector-General shall be taken to post him to a district where he shall be appointed by the Superintendent to the police-station concerned. Such a necessity will not arise in case of Inspectors of C.I.D. as given in sub-rule (b) below.
Sub-Inspectors of the department shall not be employed to conduct investigations in person unless such orders have been obtained.
(b) Under section 36, Cr.P.C. Inspectors and superior officers of the C.I.D. are superior in rank to an officer in charge of a police-station and as such may exercise the same
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powers throughout the State as may be exercised by an officer in charge of a police-station within the limits of his station.”
Rule 431(b) makes the Inspectors and superior
officers of the C.I.D. superior in rank to an
officer-in-charge of a police station and they have
been conferred with the same powers as may be
exercised by an officer-in-charge of a police
station. This Rule, therefore, envisages that an
Inspector of C.I.D. can exercise the power of an
officer-in-charge of a police station. Here, in the
present case, as stated earlier, the investigation
was conducted by the Inspector of C.I.D. and it is he
who had submitted the report in terms of Section 173
of the Code. In view of what we have observed above,
the Inspector of C.I.D. can exercise the power of an
officer-in-charge of a police station and once it is
held so, its natural corollary is that the Inspector
of C.I.D. is competent to submit the report as
contemplated under Section 173 of the Code. The case
in hand is not one of those cases where the officer-
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in-charge of the police station had deputed the
Inspector of C.I.D. to conduct some steps necessary
during the course of investigation. Rather, in the
present case, the investigation itself was entrusted
to the Inspector of C.I.D. by the order of the
Director General of Police. In such circumstances,
in our opinion, it shall not be necessary for the
officer-in-charge of the police station to submit the
report under Section 173(2) of the Code. The
formation of an opinion as to whether or not there is
a case to forward the accused for trial shall always
be with the officer-in-charge of the police station
or the officers superior in rank to them, but in a
case investigated by the Inspector of C.I.D., all
these powers have to be performed by the Inspector
himself or the officer superior to him. In view of
what we have discussed above, the observations made
by the High Court in the impugned judgment is
erroneous and deserve to be set aside.
The High Court while coming to the aforesaid
conclusion has greatly been swayed by the observation
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of this Court in the case of M.C.Mehta (Taj Corridor
Scam) v. Union of India,(2007) 1 SCC 110. In that case the Court was considering the scope of Section
173(2) of the Code in case of difference of opinion
between the team of investigating officers and the
law officers on one hand and the Director of
Prosecution of the same investigating agency i.e.
C.B.I., on the other hand, on the question as to
whether there exist adequate materials for judicial
scrutiny against the accused persons. In this
background this Court held that it is the officer-in-
charge of the police station, who is competent to
form final opinion. In this connection, it has been
observed as follows:
“31. As stated above, 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. Under the CBI Manual, the officer in charge of the police station is the SP. In this connection, we quote hereinbelow the CBI Manual, which though not binding on this Court in Supreme Court monitored cases, nonetheless, the
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said Manual throws light on the controversy in hand.”
In the case in hand, there is no such
controversy. The case was transferred to the C.I.D.
and it was entrusted for investigation by an
Inspector of C.I.D., who possesses a rank superior to
an officer-in-charge of the police station as per
Rule 431(b) extracted above and, therefore, competent
to form opinion in terms of Section 173(2) of the
Code, subject of course to the power of superior
officer.
In the result, we allow this appeal, set aside
the impugned observations, but without any order as
to the costs.
……………………..………………………………..J. (CHANDRAMAULI KR. PRASAD)
…….….……….………………………………..J. (JAGDISH SINGH KHEHAR)
NEW DELHI, OCTOBER 29, 2013
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