State by Public Prosecutor vs Krishnasami Iyer and 2 Others

K.P. Sivasubramaniam, J.—This appeal arises out of the judgment of the learned Additional Chief Judicial Magistrate, Kumbakonam, in C.C. No. 93 of 1988.

The respondents/accused stood charged under S. 14(3) read with S. 25(2) of the Antiquities and Art Treasures Act, 1972 on the allegation that on 21.5.1988 at about 12.00 Noon at Agarathirunallur Village the accused were found in possession of panchaloga idols in front of the house of Mathurathammal valued at Rs. 30 lakhs without registering the said idols under the Antiquities and Art Treasures Act, 1972 and thereby the accused had committed an offence as mentioned above.

The accused in answer to the questions under S. 313 Cr. P.C. have stated that all the idols belong to their families and owned by them for more than eight years to the knowledge of Hindu Religious and Charitable Endowment Department.

Learned trial Judge though on the merits of the case had held that the idols were antiquities as defined under the provisions of the said Act and that the accused had not duly registered the idols as required under the said Act, however, dismissed the complaint on the ground that the very same Police Officer who had filed the First Information report had conducted the investigation. In coming to the said conclusion learned trial Judge has relied on the judgments reported in Bhagwan Singh Vs. The State of Rajasthan, and 1985 L.W.(Crl.) 336) (Singaravelu v. State). Learned counsel appearing for the respondents has also relied on a judgment of the Rajas-than High Court reported in Gyan Chand Vs. The State of Rajasthan, .

The point for consideration in the above appeal filed by the State is that whether the complainant himself who had seized the material objects and who had given the First Information report could himself proceed with further investigation or not.

In the judgment reported in 1983 L.VV. (Crl) 336, K.M. Natarajan, J. has held that the complainant himself could not be an investigating officer and that it was an infirmity which was bound to reflect on the credibility of the prosecution case and the benefit of doubt had to be given to the accused. Learned Judge has relied on the observation off the Supreme Court made in Bhagwan Singh Vs. The State of Rajasthan, . In the Judgment of the Supreme Court, the Head Constable to whom bribe was alleged to have been offered by the appellant, was the informant and the complainant who had lodged the First Information Report for taking further action against the appellant. The Supreme Court observed that it was an infirmity arising from investigation by the Head Constable, which was bound to reflect on the credibility of the prosecution case.

However, a reference to the judgment of Janarthanam, J. reported in 1991 L.W.(Crl) 191 (Thamizharasan and Another v. State, by Inspector of Police) has also been made and brought to my notice. In the said case, the learned Judge has referred to both the judgments mentioned above as well as analysed the various provisions of the Criminal Procedure Code. The learned Judge had ultimately concluded that there was no prohibition for a Police Officer to lay the First Information Report and to investigate the Case himself and to file a final report under S. 173(2) Cr. P.C.

I was very much inclined to be persuaded by the views expressed by the learned Judge for the following reasons:-

(i) There is no specific statutory bar in the Code of Criminal Procedure for the first informant himself being an Investigating Officer;

(ii) The judgment of the Supreme Court reported in Bhagwan Singh Vs. The State of Rajasthan, , was a peculiar case where the Head Constable, who was himself the person, to whom bribe was alleged to have been offered, was the complainant in the case, and that all the witnesses were his subordinates and that therefore, there was very little or nothing to be investigated in the case. In the said circumstances the Supreme Court had come to the conclusion that it was bound to reflect on the credibility of the prosecution case.

However, one more judgment of the Supreme Court reported in 1997 S.C.C. (Crl) 267 (Megha Singh v. State of Haryana) has been Drought to my notice. The said case arose out of the Terrorist and Disruptive Activities (Prevention) Act, 1985. The First Information Report was lodged by the Head Constable and he himself had proceeded with the investigation. After rejecting the case of the prosecution on the merits of the facts and circumstances of the case, the Supreme Court went further to observe as follows:

We have also noted another disturbing feature in this case. P.W.3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161 Cr. P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.

It would therefore, appear that though there is no specific statutory bar, the Supreme Court is inclined to take a consistent view at least as a matter of healthy practice, that it would not be conducive to fair and impartial investigation for the complainant himself to be an investigating Officer.

With the result the objection taken on behalf of the accused and accepted by the trial Court has to be upheld and the appeal by the State has to be dismissed.

In view of the observations made by the Supreme Court, the Public Prosecutor may duly instruct the Government as well as the various Investigating Agencies to bear in mind the principles expressed by the Supreme Court in order to avoid repetition of any such error which would ultimately result in serious offenders going out of the clutches of law and to see to it that in the event of any Police Officer himself being required to give the First Information Report, it is necessary to depute some other official to investigate into the offence and to file a charge-sheet. The above appeal is therefore dismissed.