Asaduddin Owaise and Another vs State of A.P.

S.B. Sinha. C.J.

This matter has been placed before us on a reference made by a learned singe of this Court viz., C.Y. Somayajulu, J for a decision on the following question:

"Whether the investigation conducted by a Police Officer, in respect of a cognizable offence that occurred in his presence in which he is not a victim, and in respect of which he lodges a report, gets vitiated or not, and whether the decision of this Court in Maddu Lakshmana Rao v State of A.P.1 lays down the correct proposition of law?"

The Criminal Petition u/s 482 of the Code of Criminal Procedure was filed by accused 1 and 2 who were charge sheeted along with others for the offences punishable under sections 147, 148, 332, 307 I.P.C. and sections 3 and 4 of P.P.D Act and Section 7 of Criminal Amendment Act in Crime No.49 of 1998 on the file of Shamsheergunj Police Station, Hyderabad, seeking quashing of the proceedings in S.C.No.264 of 2000 on the file of the 1st Additional Metropolitan Sessions Judge, Hyderabad.

Facts: A first information report was lodged by the Inspector of Police, Shamsheergunj Police Station on his own report alleging that the petitioners and others formed themselves into an unlawful assembly and obstructed him and other Police Officers from discharging their duties as Public Servants and caused injuries to them and damage to police vehicles and R.T.C. buses by pelting stones and a case was registered for the above offences. The Investigating Officer took up the investigation although he himself is a complainant. The case was investigated and the matter was committed to the Court of Sessions. At that stage, an application u/s 482 Cr.P.C was filed.

Before the Referring Judge strong reliance has been placed on Maddu Lakshmana Rao''s case. A learned single Judge of this Court, in the said decision, placing reliance on the decision of this Court in Xavier v. State of Kerala2 as also a decision of the Apex Court in Bhagawan Singh v. State of Rajasthan3, inter alia, held that investigation gets vitiated if the complainant himself investigates the offence. In terms of the said finding, the proceedings subsequent to the recording of the First Information Report were quashed and a fresh investigation by a competent officer was directed to be taken up.

Relevant provisions of the Statute:

In terms of Section 2(d) of Code of Criminal Procedure, ''complaint'' does not include police report. Sub-section (2) of section 2 of Cr.P.C. defines ''police report'' to mean a report forwarded by a police officer to a magistrate u/s 173(2) Cr.P.C.

It is not in dispute that the Code of Criminal Procedure does not contain any provision debarring investigation being conducted by a Police Officer who is entitled thereto in law. Section 156 of the Code of Criminal Procedure reads thus:

"156. Police Officer''s power to investigate cognizable case: (1) Any Officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have to inquire into or try under the provisions of Chapter XII.

(2) No proceeding of a Police Officer in any such case shall, at any stage, be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered u/s 190 may order such an investigation as abovementioned."

6.In terms of the aforementioned provisions, a Police Officer in charge of a police station has the right to investigate any cognizable case and file a charge sheet into Court. While considering the matter, it has to be borne in mind that no separate investigating agency has been created in the State. There does not exist any embargo in a Police Officer who looks after maintenance of law and order to act as the investigating officer.

This, however, does not mean that the investigation shall not be fair and reasonable. The question which arises for consideration in this application is as to whether only because the investigation, in this case, has been done by a Station House Officer who is a complainant and witness to the crime, the investigation necessarily would be vitiated in law ? The answer to the same must be rendered in the negative.

Investigation has been defined in Section 2(h) of Cr.P.C in the following terms:

"investigation" includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by an person (other than a Magistrate) who is authroised by a Magistrate in this behalf."

Despite the fact that the Code of Criminal Procedure does not contain any provision debarring the Police Officer in charge of a Police Station who is a complainant and witness to the occurrence to make investigation of such occurrence, in some cases, however, the Court may come to the conclusion that the investigation conducted by such Police Officer is vitiated by reason of the fact that the same was not a fair one. However, the Court has to bear in mind that investigation is not an inquiry or trial. In terms of Section 39 Code of Criminal Procedure, even a Police Officer who is aware of the commission of, or of the intention of any person to commit any offence punishable under the sections mentioned therein under the Indian Penal Code is bound to give information to the nearest Magistrate or Police Officer of such commission or intention. In terms of the said provision, the Police Officer, like any other ordinary citizen, is under an obligation to give such information to the nearest Magistrate or Police Officer. Sections 147 and 148 of I.P.C are some of the offences mentioned in Section 39(d) Cr.P.C. If the jurisdiction in relation to such offences falls within the limits of the Police Officer in charge of the Police Station, he is bound to proceed with the investigation.

Case Law:

In Bhagawan Singh''s case supra, a Head Constable filed a complaint alleging that Bhagawan Singh had offered bribe to him and a case was registered on the basis thereof. The complainant investigated into the matter and having found that he had no jurisdiction to investigate, transferred the investigation to the Deputy Superintendent of Police whereafter a charge sheet was filed. The accused therein were convicted. On appeal before the Apex Court, it was observed:

"Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant (Bhagawan Singh) and he was the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances Head Constable Ram Singh could undertake investigation ? In fact, Head Constable Ram Singh, being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorised to do so, but infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the First Information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case"

It is, therefore, not a case where the Apex Court held that by reason of investigation conducted by the complainant himself, the entire investigation stood vitiated.

In Maddu Lakshmanarao''s case (supra), on information that a public servant had amassed assets disproportionate to the known sources of his income, the District Inspector, Krishna, A.C.B., registered a case and took up investigation. This Court in the facts and circumstances of the case held that the complainant cannot act as investigating officer and that the investigation is vitiated.

In Xavier''s case, the Kerala High Court has rendered the decision in the particular facts and circumstances of that case. It was a case where in the presence of an Assistnat Sub-Inspector of Police, the accused behaved in a disorderly manner and was found to be in a drunken state. The investigation was done by the Assistant Sub-Inspector of Police though the Sub-Inspector of Police was available. It was in that situation, the Kerala High Court held that the matter could have been investigated by the Sub-Inspector of Police who was competent therefor. The said decision, in our view, is not an authority for the proposition that an investigation made by a complainant-police officer would be automatically vitiated. In a given situation, it may so happen that except the concerned officer, no empowered investigating officer is available.

It maybe noticed that in H.N. Rishbud v State of Delhi4, the Apex Court specified the steps which constitute ''investigation'' in the following terms:

"(1)Proceeding to the spot, (2) ascertaining of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) examination of any persons (including the accused) and the reduction of their statements in writing, if the officer thinks fit, (b) search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under Sec. 173."

Yet again in Niranjan Singh v State of U.P.5, the Supreme Court held that as investigation being not an enquiry or trial, the omission or mistake committed during the course of the investigation would not vitiate the trial itself. Reference in this connection may also be made to the decision of the Apex Court in A.C. Sharma v Delhi Administration6.

Our opinion:

If it is to be held that all such investigations conducted by the Officers in charge of Police Stations would get vitiated, the same may be counter-productive, as by reason of the duties and functions attached to the officers in charge of Police Stations, they are also required to lookafter the maintenance of law and order. In a given case, they, as of necessity, on information, may have also to register a case even under sections 399 and 402 IPC. Thus, the question as to whether a trial would get vitiated by reason of unfair investigation would depend upon the facts and circumstances of each case. No inflexible rule thus can be laid down therefor.

In this view of the matter, we are of the opinion that the decision of this Court in Maddu Lakshmana Rao Vs. State of Andhra Pradesh, does not lay down a correct proposition of law and thus is overruled.

Conclusion:

Keeping in view the fact that in the present case as the trial is yet to be commenced and having regard to the fact that the reasonableness or otherwise of the investigation has not been questioned at the earlier point of time, it is not a fit case where this Court should exercise its inherent jurisdiction u/s 482 Cr.P.C.

14.The reference is answered accordingly. The Criminal Petition is dismissed.