Smt. Leena Katiyar vs State of U.P. and Others

Vinod Prasad, J.—Smt. Leena Katiyar Informant of crime number 467 of 2007, under Sections 364A, 302, 201, IPC, Police station Kotwah Fatehgarh, District Farrukhabad has invoked our extra ordinary jurisdiction under Article 226 of The Constitution Of India, with the prayers to issue a writ of mandamus commanding respondents No. 1 to 8 to submit charge sheet against Sunil Katheria and Haplu, respondents No. 9 and 10 in the aforesaid crime number, relating to SST No. 40 of 2007. pending before Special Judge, (DAA), Farrukhabad. Second prayer made is to issue a writ of mandamus commanding the aforesaid respondents 1 to 8 to send the tapes and CDs recorded between 22.4.2007 and 1.5.2007 by the Superintendent of Police and Additional Superintendent of Police for sound spectrography to voice recording experts Another payer is to issue a writ of mandamus commanding those very respondents to record voice sample of the accused persons througn Special Judge (DAA), Fairukhabad for being compared and examined through sound Spectrography from the taps and CDS mentioned above.

Relevant facts are that the son of the informant Madhusudan @ Madhu is allegated to have been kidnapped and murdered for ransom by the accused persons who are eight in number including respondents No. 9 and 10. Police investigated the offence and to decipher the crime resorted to electronic surveillances to tap the phone conversations between informant and accused persons and also inter-se between them After completion of investigation the police submitted the charge sheet against the accused for the aforementioned offences on the basis of which SST No. 40 of 2007 was registered in the court of Special Judge (DAA). Farrukhabad which is still pending.

Father of one of the accused Happy @ Shivam, who now has been declared to be a Juvenile, rued false implication of his minor son and, being a person of SC/ST caste, approached SC/ST Commission who recommended for further investigation and on such a recommendation Director General Of Police and other Higher Police officers ordered for further investigation by Special Enquiry Cell. The investigating officer of Special Enquiry Cell approached the court of Special Judge (DAA) Farrukhabad. Seeking his approval for further investigation and the court approved the same vide it''s order dated 30.5.2007 and therefore further investigation in the crime is ongoing u/s 173(8) Cr.P.C. It is important to note that order for further investigation has been challenged by the informant petitioner in connected writ petition No. 7318 of 2008 Smt. Leena katiyar v. State of U.P. and Ors. which is being disposed off to day itself by passing a separate order for the sake of convenience. Since the police did not charge sheet respondents No. 9 and 10 Sunil Kathena and Haplu hence informant has filed the present writ petition.

We have heard Sri Murlidhar, learned Senior Counsel as well as Sri A.N. Srivastava in support of this writ petition and Sri V.P. Sriwastava, learned Senior Counsel assisted by Sri by Srivastava and teamed AGA in opposition and have gone through the averments made in this writ petition.

From the record it is not disputed that the civil police after Investigation has submitted charge sheet against the accused persons except respondents No. 9 and 10. Informant is aggrieved by non charge sheeting of aforesaid respondents. This can now been done only u/s 73(8) Cr.P.C. as there is no other provision in the Code of Criminal Procedure for the same. Special Judge (DAA) has also taken the cognizance of the offences and had summoned the charge sheeted accused excluding those two respondents. The only Sections under Cr.P.C. now left with the court to add accused in the trial is Section 319 Cr.P.C., after some evidence of commission of offence is brought on record during trial by the prosecution witnesses recorded during the trial But for the aforesaid Section there is no other provision to add any person as an accused in the case. See Vidyadharan v. State of Kerala AIR 2004 SC 536 ; Moly and Another Vs. State of Kerala, Gangula Ashok and Another Vs. State of A.P., Ranjit Singh Vs. State of Punjab,

For the police only Section 173(8) Cr.P.C. can be resorted to add an accused. The dichotomy of the whole situation lies in filing of two writ petitions with contradictory reliefs. In the instant writ petition petitioner informant has prayed for addition of accused which can be done only u/s 173(8) Cr.P.C. through further investigation as the charge sheet has already been laid in court by the local police and, on the other hand, in the connected writ petition 7318 of 2007 the same petitioner has prayed for quashing of order for further investigation. Thus the prayer made in the two writ petitions run counter to each other in as much as if, either of the writ petition is allowed the other writ petition will automatically become infractuous. Since we have taken a view in the other writ petition that further investigation can not be quashed therefore we are of the opinion that the petitioner for the relief sought in the present writ petition can convince investigating officer making further investigation for the relief prayed in the instant writ petition.

There is yet another aspect for us for not granting relief sought in this petition and that is that the prayer made in this writ petition is beyond the domain of writ power of this court. Under Article 226 of the Constitution this court can not direct submission of charge sheet against an individual anointing him with the status of an accused and snatching his liberty away. Whether a person is to be charge sheeted or net on the facts of each case for alleged offence or offences, is the sole domain of the officer in charge of police station concerned u/s 173(2) CrPC. He can not delegate that power. No doubt investigation of offence/offences can be done by any officer subordinate to that officer in charge of police station concerned but the final opinion u/s 173(2) Cr.P.C. or u/s 169 Cr.P.C. has to be that of the officer in charges of the police station concerned. This aspect of the matter no longer remains res Integra and has been dealt exhaustively by the apex court in the case of H.N. Rishbud and Inder Singh Vs. The State of Delhi, where in the apex Court has held as under:

Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment 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) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the 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 u/s 173.

The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate u/s 551.

Thus what is unambiguously clear is that for sending a person for trial or not, the opinion has to be that of the officer in charge of the police station concerned and of no body else. Resultantly the courts also can not direct for submission of charge sheet against an individual as the aforementioned passage oust the power of the court also to direct officer in charge of a police station to send an accused for trial by submitting a charge sheet against him. In this connection we may also refer the view of the apex court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, where in the apex court has observed thus:

If the report is of the action taken u/s 169, then the Magistrate may agree with the report and close the proceedings. If he disagrees with the report, he can give directions to the police u/s 156(3) to make a further investigation If the police after further investigation submits a charge-sheet, the Magistrate may follow the procedure where the charge-sheet u/s 170 is filed: but if the police are still of the opinion that there was no sufficient evidence against the accused, the Magistrate may or may not agree with it. Where he agrees, the case against the accused is closed. Where he disagrees and forms an opinion that the facts mentioned in the report constitute an offence, he can take cognizance u/s 190(1)(c). But the Magistrate cannot direct the police to submit a charge-sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the Magistrate. If the Magistrate disagrees with the report of the police he can take cognizance of the offence u/s 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion.

This judgement shows the importance of the opinion to be formed by the officer in charge of the police station. The opinion of the officer in charge of the police station is the basis of the report. Even a competent Magistrate cannot compel the concerned police officer to form a particular opinion. The formation of the opinion of the police on the material collected during the investigation as to whether judicial scrutiny is warranted or not is entirely left to the officer in charge of the police station. There is no provision in the Code empowering a Magistrate to compel the police to form a particular opinion. This Court observed that, although the Magistrate may have certain supervisory powers under the Coda, it cannot be said that when the police submits a report that no case has been made out for sending the accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. The formation of the said opinion, by the officer in charge of the police station, has been held to be a final step in the investigation, and that final step has to be taken only by the officer in charge of the police station and by no other authority.

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Yet another facts which way heavily against grant of relief sought by the petitioner in this writ petition is that the offences are being further investigated It is now well settled by a catena of decisions by this court as well as by the apex court that courts can not interfere in already progressing investigation. Informant petitioner can seek redressal of her grievances before the investigating officer conducting further investigation but, under Article 226 of The Constitution we are not inclined to interfere in the already progressing investigation specially when the relief sought in this petition is beyond the scope of writ power. Supreme court has held in the case of Shashikant Vs. Central Bureau of Investigation and Others, as under:

The First Respondent is a statutory authority. It has a statutory duty to carry out investigation in accordance with law. Ordinarily, it is not within the province of the court to direct the investigative agency to carry out investigation in a particular manner. A writ court ordinarily again would not interfere with the functioning of an investigative agency. Only in exceptional cases, it may do so. No such case has been made out by the appellant herein. The nature of relief prayed for in the writ petition also is beyond the domain of a writ court save and except, as indicated herein before, an exceptional case is made out.

Further in the case of State of Bihar and Another Vs. J.A.C. Saldanha and Others, it has been held by the apex court as under:

There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The he executive which is charged with a duty to keep vigilance over taw and order situation is all obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating Officer submits report to the Court requesting the Court to take cognizance of the offence u/s 190 of the Code its duty comes to an end On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subseguent adjudication between the police and the Magistrate.

Supreme court has expressed the same view in the case of State of West Bengal Vs. S.N. Basak, wherein it was held:

The powers of investigation into cognizable offences are contained in Ch. 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 Section 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 the exercise of power u/s 439 or under the inherent power of the Court u/s 561A of the Criminal Procedure Code.

Some other judgements of the apex court countenancing the same view are S.N. Sharma Vs. Bipen Kumar Tiwari and Others, Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., Here we recollect that decades ago Privy Council in the case of AIR 1945 18 (Privy Council) has held as under:

Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their providence and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of are alleged cognizable crime without requiring an, authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. 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, Criminal P.C, 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.

For the reasons above, we don''t find any merit in this writ petition as the reliefs prayed for can not be allowed and hence we dismiss the writ petition as merit less.