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Judgment
Manisana, J.—This is an application u/s 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing investigation of offences under Sections 379 and 411, IPC by the police in connection with Moranhat P.S. Case No. 160 of 1986 : GR Case No. 740 of 1986.
The facts of the case may briefly be stated. The Officer-in-charge, Moranhat P.S. on 22.11.86 at 2.30 P.M. made a G.D. entry. The entry runs as follows:
Now on being informed by telephone ASI Shri R. Buragohain from Moran Check gate that some youths of Assam Jatiyatabadi Yaba Chatre Parishad have seized a truck loaded with doubtful iron near the Moran Electricity Board, we entered the same in the Diary and to take necessary steps I with ASI S.P. Gogoi and Atul Hazarika went to Moran Electricity Board office in office jeep bearing No. 2504.
On 23.1.86 Shri Gopal Chandra Borah, the offices-in-charge of Moranhat Police Station lodged a formal ejahar with the officer-in-charge of Moranhat Police Station. Shri Gopal Chandra Borah formally registered a case under Sections 379 and 411, IPC. The relevant portion of the FIR runs as follows:
I have the honor to report that on 22.11.86 at 5.30 P.M. on getting in fom (sic) truck No. NLS-4001 was checked at Khatkhati gate and on suspicion through checking have been done at P.S. compound by unloading and found some new and contraband articles belonging to Oil India Duliajan Moran Branch have been detected and seized, on demand the driver produced a letter written by P.K. Orlery Manager Moran Oil, that the truck carrying home hold goods to his home town Kohima. Beyond no documents could be produced by P.K. Orlery about the possession of oil materials and carrying the same to his home.
The Chief Technical Auditor of the Oil India Ltd. wrote a letter dated 26.11.86 to the officer-in-charge, Moranhat Police Station in connection with the seizure of articles during the course of the investigation of the case referred to above. The letter runs in the following terms.
Dear Sir,
We refer to your letter on the above subject dated November 23, 1986.
We have checked the materials in your presence on Nov. 24, 1986. To that extent identification is available on the materials and the inventory records immediately available with us, we find that the particular lot of items (57 in all) shown to us cannot be identified as OIL INDIA''S property.
We thank you for the information and all assistance provided to our staff.
Mr. N.M. Lahiri, the learned Counsel for the Petitioner has submitted that, first, immediately after the entry in the G.D., the police started investigation, therefore, the formal (SIC) is inadmissible. Secondly, the G.D. entry and other materials on record do not show that the Petitioner has committed any offence.
Before dealing with the substantive arguments addressed to me on the hearing of the petition, I feel it necessary to consider relative functions of the judiciary and the police during the investigation of a cognizable case.
In AIR 1945 18 (Privy Council) the privy Council observed:
The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course subject to the right of the court to intervene in an appropriate case when moved u/s 491 of the Code of Criminal Procedure to give directions in the nature of habeas corpus. In such a case as the present, however, the court''s functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561 has given increased powers to the court which if did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Code of Criminal Procedure and that no inherent power had survived the passing of that Act.
The above observations of the Privy Council received the approval of the Supreme Court in State of West Bengal Vs. S.N. Basak, In that case, while approving the decision of the Privy Council the Supreme Court also has held that the powers of the investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and Section 156, with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by exercise of power under old Section 439 or under inherent power of the High Court.
In Jehan Singh Vs. Delhi Administration, the Supreme Court relying on earlier decisions reported is AIR 1945 18 (Privy Council) and State of West Bengal Vs. S.N. Basak, has held that where no charge-sheet has been laid before the Magistrate and the matter is only at the stage of investigation by the police, the High Court cannot, in exercise of its inherent jurisdiction, in erfers with the statutory powers of the police to investigate into the alleged offence, and appraise the evidence collected by the police in their investigation and quash the proceedings.
In State of West Bengal v. Swapan Kumar AIR 1982 SC 549, the Supreme Court has, after discussing earlier decisions of the Supreme Court, held that the First Information Report which does not allege or disclose that the essential requirements of the penal provisions are prima-facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. The Supreme Court has further held that an instigation can be quashed if no cognizable offence is disclosed by the FIR. It is surely not within the provisions of the police to investigate into the report which does not disclose commission of cognizable offence and the Code does not impose upon them the duty of the enquiry in such cases.
u/s 156, Code of Criminal Procedure, 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 power to enquire into or try under the provisions of Chapter 13 of the Code.
"Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Therefore, the police officer in charge of a police station has statutory power to investigate any cognizable case and arrest without warrant in the course of investigation of a cognizable case. It may be noted that if a person is arrested in the course of investigation of a cognizable case, it concerns or affects the liberty of the person so arrested.
As already stated above, the police has the statutory power of arrest in the course of the investigation of a cognizable case. However, Chapter 33 of the Code provides for bail and bonds. Bail u/s 436 is automatic and any person arrested of a bailable offence, as a matter of right, can claim for bail. Section 437 is a provision when bail can be taken or granted in the case of non-bailable offence. u/s 438 Code of Criminal Procedure, the High Court can grant bail prior to arrest. Therefore, the Court has jurisdiction to grant or refuse bail in the course of the investigation.
Now, having regard to the above decisions of the Supreme Court, in my judgment the relative functions of the judiciary and the police may be summarised as follows:
a) The moment the charge sheet or police report is forwarded to the Magistrate empowered to take cognizance, the investigation is completed and the functions of the Court begin or commence;
b) The functions of judiciary and police are complementary, not overlapping, as are regulated by the Code, Constitution and other relevant laws. So far as ''law and order'' is concerned, it is the function and duty of the police while the question of liberty is involved, the Court can exercise its own function;
c) Normally, the Court has no jurisdiction to interfere with the statutory power of the police to investigate cognizable offence. However, in an appropriate case, the High Court exercising its inherent power can interfere with the investigation so as to give effect to any provision of the Code, or any order under the Code or to secure the ends of justice, and the High Court can also issue writ or direction if constitutional rights are violated.
d) The Court has jurisdiction to grant or refuse bail after arrest or pre-arrest, as provided under the Code, during the investigation.
Keeping the above principles in view, let me now examine the present case. Statements of the witnesses u/s 161 are not before me. The stage of the investigation is also not known. If a finding is to be given basing only on the materials on records, it would be an imperfect finding. Therefore, the contention of Shri Lahiri cannot be entertained at this stage. However, considering the nature and circumstances of the case, in my judgment if the investigation is completed as early as possible, it will meet the ends of justice.
For the reasons stated and in the light of the decision of the Supreme Court in Hussainara Khatoon v. State of Bihar UJ 1979 (SC) 773, the Investigating Officer concerted is given a three-month time to complete the investigation from the date of receipt of this order. I hope and trust that the Investigating Officer shall complete the investigation within the (SIC) period. A copy of this order shall be sent to the Officer Managed Police Station by the Registry of this Court.
With the said direction and observation, the petition is disposed of.