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Judgment
S. Thangaraj, J.—The petitioner has filed this petition challenging the summons issued by the Superintendent of Police and Investigating Officer, Special Investigation Cell, Directorate of Vigilance & Anti-Corruption, Chennai-35, to the petitioner under Chapter XIV of the Code of Criminal Procedure (Cr.P.C.), requiring the attendance of the petitioner at their office at Chennai 35 on 23 & 24.3.1999 at 11.00 hrs for the purpose of answering certain questions in Crime No. 13/AC/96/HQ of the Directorate of Vigilance and Anti-Corruption, Chennai-6.
The respondents have filed their counter.
In Crime No. 13/AC/96/HQ charge sheet was filed against four accused on 4.6.97 and the case has been taken on file by the XI Additional Sessions and Special Judge, Chennai in Special C.C. No. 7/97 and the trial is in progress. While filing the chargesheet, the Investigating Officer has specified that the charge sheet was laid subject to the provisions of Section 173(8) Cr.P.C. and the Special Judge had taken the charge sheet on file. Subsequently the Court had permitted issuance of letter rogatory for further investigation abroad. The petitioner who was in a foreign country returned to India after filing of the chargesheet. The investigating Officer considered it necessary to examine the petitioner also to ascertain the facts and circumstances, which are within his knowledge relating to the above case. A notice u/s. 160 Cr.P.C. dated 4.1.99 was issued to the petitioner calling upon him to appear before the Investigating Officer on 18.1.99 at 11.00 hrs at his office at Chennai 35, and the petitioner had sent a telegram through his Advocate stating that he was unable to appear on 18.1.99 as he was out of station and he would return after 24.1.99. The investigating Officer had sent one more notice u/s. 160 Cr.P.C. dt: 21.1.99 to the petitioner calling upon him to appear on 29 & 30.1.99 at 11 hrs. at his office and the telegram had received from the Advocate of the petitioner that he was not in station and was pre-occupied till February, 1999. The impugned notice was issued u/s. 160 Cr.P.C. on 3.3.99 calling upon the petitioner to appear before the Investigating Officer on 23 & 24.3.99 and the petitioner had sent a telegram seeking two weeks time to appear and in the meantime he has filed this Criminal original petition challenging the correctness and validity of the said notice
The impugned summon is as follows:
Directorate of Vigilance and Anti-Corruption, Chennai-600 006
Summons
(U/s. 160 Cr.P.C.)
To
Thiru. M. Natarajan, S/o Tr. Maruthappa, No. 6/5, Arundala Beach Road, Kalashetra Colony, Besant Nagar, Chennai.
Whereas it appears that you are acquainted with the circumstances of the case noticed below, which is being investigated by DVAC, SIC-I. Chennai-35 under Chapter XIV of the code of criminal procedure, you are hereby required to attend at the office of the Special Investigation Cell, Vigilance and Anti-Corruption, E.V.R. Periyar Maligai, 474, Anna Salai, Chennai-35 on 23 & 24.3.99 at 11.00 hrs. for the purpose of answering certain questions relating to the case in Cr. No. 13/AC/96/HQ of Directorate of Vigilance and Anti-Corruption. Chennai-600 006. You are also requested to bring the relevant documents, if available, for examination.
Particulars of the case
Cr. No. 13/AC/96/HQ
Sd/- XXXXX (N. Nallama Naidu)
Superintendent of Police & Investigating Officer. Special Investigation Cell. Directorate
of Vigilance & Anti- Corruption.
Chennai 600035
From the wordings of the notice, it is clear that the petitioner was called upon to appear before the Investigating Officer. Special Investigation Cell, Directorate of Vigilance & Anti-Corruption, Chennai-35, on 23 & 24.3.99 at 11.00 hrs for the purpose of answering certain question relating to the case in Cr. No. 13/AC/96/HQ of the Directorate of Vigilance and Anti-Corruption, Chennai-6. Further, it was "requested" the petitioner to bring the relevant documents, if available, for examination.
Section 160 Cr.P.C. reads as follows:
Police Officer''s power to require attendance of witnesses:
(1) Any police officer making an Investigation under tins Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or by adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend any place other than the place m which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police Officer of the reasonable expenses, of every person, attending under sub-section (I) at any place other than his residence.
The petitioner had a fear in his mind that the investigating officer would try to extract statements from him against his wish or consent or that he would array him an accused in the case already pending before the Special Judge. Chennai in Special Case No. C.C. 7/97. In the counter, the respondents have stated that during investigation of the case it came to their notice that the petitioner was acquainted with sonic important facts and circumstances connected with the case and hence it was considered necessary to examine him as a person acquainted with the facts and circumstances of the case. So the purpose was, to examine the petitioner as he was acquainted with some important facts and circumstances connected with the said case.
The petitioner has relied on a Full Bench decision of this Court in (The Queen Empress vs. Saminada Chetty) I.L.R.(1883) Mad 275 wherein it was held-
The Court is of opinion that Section 160 does not authorize a Police Officer to require the attendance of an accused person with a view to his answering the charge. The intention of the legislature seems to have been only to provide a facility for-obtaining evidence, and not for procuring the attendance of the accused, who may be arrested at any time, if necessary, without a warrant.
On the basis of this decision it was argued by the learned senior counsel for the petitioner that under Sec. 160 Cr.P.C. the investigating Officer can call upon a person for obtaining evidence and not for procuring the attendance of the accused. The counter is clear to the effect that the present petitioner was called upon to answer certain questions relating to case in Cr. No. 13/AC/96/HQ of the Directorate of Vigilance and Anti-Corruption, Chennai-6.
The petitioner has challenged the notice by way of this petition filed u/s.482 Cr.P.C. The petitioner has also questioned the validity of the said notice sent u/s. 160 Cr.P.C. The said section extracted supra would go to show that the police officer making an investigation under Chapter XII, by an order in writing required the attendance of the person who is acquainted the facts and circumstances of the case. However, the police officer making investigation cannot require the attendance of a male under the age of fifteen years or a woman in his office and on the contrary the investigating Officer should go to the place in which such male person or woman resides. The said provision is not applicable to the petitioner. So the impugned notice has been sent as per the provisions of Sec. 160 Cr.P.C. While questioning the validity of the notice, learned senior counsel appearing for the petitioner has pointed out that since charge sheet has already been filed in the case and the same is pending trial before the Special Judge. Chennai, issuance of notice u/s. 160 Cr.P.C. to the petitioner is invalid.
Learned senior counsel for petitioner has also pointed out the provisions of Sec. 173 (8) Cr.P.C. and further argued that to invoke the said section, the investigating officer should seek the permission of the Court wherein the case is pending and without filing any such petition, the investigating officer has issued summons to the petitioner for his appearance when the case was pending trial.
Section 173 (8) Cr.P.C. deals with "Report of police officer on completion of investigation:
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate, and where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
In Re: Palaniswami Goundan, , this Court held that even after filing of final chargesheet of police officer could still investigate and lay further chargesheet if he got information and that there was no finality either to the investigation or to the laying of chargesheet.
In Ram Lal Narang Vs. State (Delhi Administration), . Their Lordships of the Supreme Court held-
There was no provision in the Cr.P.C, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken congnizance of the offence upon a police report submitted u/s 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.
In (Raghunath Singh vs. State of Bihar) (1990 (2) Crimes 310 the Bihar High Court followed the above decision of the Supreme Court and held at page 316-
It must,, therefore, be held that no illegality was committed if pending the trial before the court of sessions, prosecution decided to further investigate into the matter and hold a test identification parade. Indeed I find that the prayer was made before the Court of Session which was in seisin, of the matter. This was the only proper course to follow consistent with the observation of the Supreme Court that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. If the prosecution proceeded with further investigation without the permission of the Sessions Judge its action would have been exposed to the criticism that its action tended to disregard, and showed disrespect to the court.
Learned senior counsel for the petitioner further argued that when the investigating officer had decided to have further investigation in the case pending in Spl. C.C. No. 7/97, he ought to have filed a petition before the Special Court, where the case is pending, to get the permission of the Special Judge.
Learned Public Prosecutor Mr. Shanmugasundaram has argued that even at the time of filing of the chargesheet, it was specifically mentioned therein that the same was being filed subject to the provisions of Sec. 173(8) Cr.P.C. and the Special Judge has received the chargesheet, had taken the case on file and as such the Court has permitted the prayer.
Their Lordships of the Supreme Court in Ram Lal Narang Vs. State (Delhi Administration), have stated-
Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.
From the arguments advanced by the learned Public Prosecutor, it is clear that even at the time of filing of chargesheet, it was specifically mentioned that the same was filed subject to the provisions u/s. 173 (8) Cr.P.C. and subsequently the Court also permitted issuance of letter rogatory for further investigation abroad (it was stated that the petitioner was in a foreign country at that time). In these circumstances, the investigating officer had shown his regard and respect for the court seeking its formal permission to make further investigation as per the provisions of Sec. 173(8) Cr.P.C.
Section 161 Cr.P.C. deals with examination of witnesses by police.
(1) Any police officer making an investigation under tins Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
Section 161 (2) Cr.P.C. gives sufficient protection to a witness not to expose him to a criminal charge or to a penalty or forfeiture.
In Nandini Satpathy Vs. P.L. Dani and Another, Their Lordships of the Supreme Court has considered the provisions of Sec. 161 (2) Cr.P.C. along with Article 20(3) of the Constitution of India. While doing so. Their Lordships have considered the earlier decision in The State of Bombay Vs. Kathi Kalu Oghad and Others, wherein it was held-
Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain tiling is not compulsion within the meaning of Art. 20(T).
After elaborate discussion at pages 1046 & 1047 (para 55) Their Lordships have held-
We hold further that the accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that. We have already explained that in determining the incriminatory character of an answer the accused is entitled to consider and the Court while adjudging will take note of the setting, the totality of circumstances, the equation, personal and social, which have a bearing on making an answer substantially innocent but in effect guilty in import.
From the above decision, it is pellucid that the person, who has to answer truely all questions relating to the case put to him by the police officer making an investigation, need not answer questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. When the present petitioner is called upon to appear before the investigating officer as per the provisions of Sec. 161 (2) Cr.P.C., he shall be bound to answer such questions relating to the case and the safe-guards provided to a person therein as stated above in the decision -of the Supreme Court is available to him. A mere reading of Section 161 (2) Cr.P.C. would also clearly prove the safe-guards given to a person, who is bound to answer the question put to him during investigation by an investigating officer.
The impugned order also reads:
You are also requested to bring the relevant documents, if available, for examination.
Section 94 in the Code of Criminal Procedure 1898 is the present Section 91 in the code of criminal procedure 1973.
Their Lordships of the Supreme Court in (State Of Gujarat vs. Shyamalal) AIR 1965 SC 1251 have considered Article 20(3) of the Constitution of India and Section 94 of Cr.P.C, 1898, and per majority after analysing the concerned provisions held-
We hold that S.94 on its true construction, does not apply to an accused person.
This view further emphasise the position that the petitioner herein has not been taken as an accused, but he was summoned to appear as a witness. We have already seen that it is clear from the counter itself that he was called upon to answer certain question regarding the said case as per provisions of Sec. 160 Cr.P.C.
It was argued by the learned Public Prosecutor that the petitioner cannot challenge the impugned summons in a petition filed u/s.482 Cr.P.C. The said section was Section 561-A in the Cr.P.C. 1898.
Learned Public Prosecutor has relied on a decision of the Andhra Pradesh High Court In Re: Devaiah, . In the said case, the Commissioner of Police, Hyderabad passed an administrative order u/s. 26(1) of the Hyderabad City Police Act directing the petitioner to remove himself from the area of Kaehiguda of Trimulgherry police circle and not to leave that area for a period of one year. The petitioner challenged the impugned order u/s.561 A of Cr.P.C. 1898. The Andhra Pradesh High Court held-
Merely because a statute contains a provision for hearing a person against whom orders are proposed to be made the order does not acquire a judicial character. Section 26 occurs in the Chapter relating to Police Regulations and Rules for preservation of order. An order u/s 26(1) is clearly of an executive character. I therefore, hold that the application u/s 561-A is not maintainable.
A Division Bench of this Court in (Raja Manickam vs. State of Tamil Nadu & others) 1994 L.W.(Cri.) 121, after considering various decisions and particularly Kehar Singh and Another Vs. Union of India (UOI) and Another, , at page 134 held-
The law abovesaid thus leaves no manner of doubt that the provisions in Chapter XXXII of the Code of Criminal Procedure, 1973, which includes Section 432 are like powers under Articles 72 and 161 of the Constitution exclusively for the Executive and operate in a field which does not either affect or embrace the judicial functions of the Courts. Howsoever extended meaning the Court may intend to give to the words in Section 482 of the Code, one must always remember that any order to secure the ends of justice or to give effect to the order under the Code does not and cannot mean a supervisory power to the court over the executive functions of the state Government
Similar view was expressed by this Court in J. Boopalan Vs. Inspector of Police, Pallavaram, Madras 43, , stating that inherent power cannot be exercised to quash executive or administrative order.
Learned counsel for the petitioner has relied on a decision of the Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, at pages 364 & 365 (para 60) : 1992 LW (Crl) 257. Their Lordships after analysing the earlier decisions on this point, have held-
The sum and substance of the above deliberation results in a conclusion mat the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions .falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echeleons since (sic) dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of such power will be tantamount to recognition of ''Divine Power'' which no authority on earth can enjoy.
Learned Public Prosecutor has relied on a decision of the Supreme Court in State of Karnataka Vs. L. Muniswamy and Others, wherein Their Lordships have held at pages 1492 & 1493
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court''s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere, law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.
Learned Public Prosecutor has contended that the summons issued by the investigating officer u/s. 160 Cr.P.C. shall not be quashed u/s. 482 Cr.P.C. as it is not a judicial order. However, the learned senior counsel for the petitioner had relied on the decision of the Supreme Court in Bhajan Lal''s Case (stated supra) and the learned Public Prosecutor has relied on the decision in State of Karnataka Vs. L. Muniswamy and Others, . As Their Lordships have held in the decision in State of Karnataka Vs. L. Muniswamy and Others, , the inherent power of the High Court is to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction and it was further held that the ends of justice are higher than the mere law, though justice has got to be administered according to laws, made by the legislatures. When we keep the above dictum in mind and analyse the case before us the summons issued u/s. 160 Cr.P.C. cannot be quashed, that the investigating officer has a right to continue the investigation even after filing of the charge sheet, that the Investigating Officer had followed the provisions of Sec.173 (8) Cr.P.C, and that the petitioner shall be bound to answer truly all question relating to such case and at the same time he has got a right not to give such answers which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture, as contemplated u/s. 161 (2) Cr.P.C. In these circumstances, sufficient safe-guards are given to the person who shall be bound to answer truly all questions. The present petition cannot be dismissed merely by taking into consideration that the summon issued u/s. 160 Cr.P.C. is an executive order. However, the foregoing reasons shall make the petition liable to be dismissed.
In the result, Crl.O.P. No. 5709/99 is dismissed. Consequently Crl.M.P. No. 2704/99 is also dismissed.