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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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