The State vs Sunil Chandra Roy and Another

Mltter, J.—The question which I have to decide is whether the provisions of Chapter XIV of the Code of Criminal Procedure are applicable to an investigation of a cognizable offence committed in the suburbs of Calcutta, to which the Calcutta Suburban Police Act (Act II of 1866), applies. Upon my decision of this point will depend whether or not section 162 of the Criminal Procedure Code should apply to certain statements of witnesses recorded by the investigating officer in this case. It is well-known that with the exception of section 155, the provisions of Chapter XIV of the Code do not apply to the Commissioner of Police, or the Police, in the town of Calcutta. Sub-section (2) of section 1 of the Code provides :

It extends to the whole of India except the States of Jammu and Kashmir and Manipur; but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force, or shall apply to--

(a) the Commissioners of Police in the towns of Calcutta, Madras, and Bombay, or the Police in the towns of Calcutta and Bombay;

(b)........

(c)............

Provided that the State Government may if it thinks fit, by notification in the Official Gazette, extend any of the provisions of this Code, with any necessary modifications, to such excepted persons.

By a notification in the Official Gazette, section 155 of Chapter XIV was made applicable to the Calcutta Police.

It has been argued on behalf of the State that as in the absence of any specific provision to the contrary, the provisions of the Code do not affect, inter alia, any special form of procedure prescribed by any other law for the time being in force, the provisions of the Calcutta Suburban Police Act are not affected by the provisions of the Code and that, therefore, the provisions of Chapter XIV are not applicable. It has also been argued that the Police Force under the Calcutta Suburban Police Act is under the administrative control of the Commissioner of Police, Calcutta, and that as the Code does not apply to the Commissioner of Police or the Police in the town of Calcutta, the provisions of Chapter XIV can have no application to an investigation of a cognizable offence committed in the suburbs of Calcutta, to which the Calcutta Suburban Police Act applies. The answer to the latter argument is that the Code is made not to apply to the Commissioner of Police, or the Police, in the town of Calcutta. The limits of the "town of Calcutta'' at all material times were, as they still are, the same as the local limits of the Ordinary Original Jurisdiction of the High Court. The words "town of Calcutta" were defined by section 3 of the Calcutta Police Act, 1866, to include all places within the local limits of the jurisdiction of Her Majesty''s High Court of Judicature at Fort William in Bengal. As to the statutes which from time to time governed the limits of the town of Calcutta, reference may be made to Appendix U.P. 760 of Ormond''s Rules. Therefore, even though the Commissioner of Police, Calcutta, is in administrative charge of the Calcutta Suburban Police Force, the provisions of subsection (2) of section 1 of the Code have no application to the Calcutta Suburban Police Act. As to the first branch of argument advanced on behalf of the State, a perusal of the Calcutta Suburban Police Act would show that no special form of procedure is there prescribed for investigation of any cognizable offence under the Indian Penal Code. Now, section 5 of the Code is in the following terms :

5(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place or investigating, inquiring into, trying or otherwise dealing with such offences.

There is, in my view, no conflict between sub-section (2) of section 1 and section 5 of the Code. The Calcutta Suburban Police Act does not provide for any special procedure for investigation of a cognizable offence under the Penal Code. Section 14A of the Calcutta Suburban Police Act, which is concerned with duties of police officers, requires a police officer to the best of his ability to obtain intelligence concerning the commission of cognizable offences........ and to lay such information and to take such other steps as are consistent with law. It also requires a Police Officer to apprehend all persons whom he is legally authorised to apprehend. There are other references to policemen''s duties which are required to be exercised in accordance with law. Section 47A deals with the power of the Commissioner of Police to require attendance of witnesses and to obtain their statements either before himself or before any officer, under him, not below the rank of Sub-Inspector. Sub-section (2) of section 47A is as follows:--

The Commissioner of Police, or any officer aforesaid, may examine orally any person so attending, and may reduce into writing any statement made by him; and such person shall be bound to answer all questions relating to the case put to him by the Commissioner or 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.

Similar powers are given to a Police Officer under sections 160 and 161 of the Code. The point 1 wish to emphasise is that the Calcutta Suburban Police Act does not lay down any special procedure to be followed for the investigation of cognizable offences under the Indian Penal Code. That being so the provisions of section 5 of the Code of Criminal Procedure would apply to investigations with regard to offences under the Indian Penal Code. Unless, therefore, a special procedure is provided in any enactment, the Code of Criminal Procedure must apply. I have been referred to the case of Suresh Chandra Ghose Vs. Emperor, , in support of the argument that if an offence is committed in an area to which the Calcutta Suburban Police Act applies, then the provisions of Chapter XIV would not be applicable. In that case, it was held that the ''diary'' in question having been prepared u/s 47A of the Suburban Police Act, there was no question of any protection from disclosure u/s 172 of the Code of Criminal Procedure. It should be remembered that section 47A of the Suburban Police Act does not provide for a diary of proceeding in investigation being maintained. The question which has been raised before me was not raised or argued before the Division Bench. The question is not whether a Police Officer could record statements u/s 47A of the Suburban Police Act, but whether the investigation concerned was under Chapter XIV. If the investigation was under Chapter XIV, then the diary maintained by the Police Officer in connection with such investigation was governed by the provisions of section 172. It should be remembered that the provisions of section 47 A(2) are analogous to those of sections 160 and 161 of the Criminal Procedure Code. No privilege attaches to statements recorded u/s 161, and therefore, no privilege can attach to statements recorded u/s 47A. The question of diaries is a different matter, and, as far as I can see, there are no provisions under the Calcutta Suburban Police Act which are similar to those u/s 172. Thus, I agree with the Division Bench in so far as it lays down that statements recorded u/s 47A of the Suburban Police Act are not privileged, as are diaries maintained u/s 172 of the Code of Criminal Procedure. The case of Panchanan Mukherjee v. Emperor, (2) (33 C.W.N. 203), must be viewed differently. In the Calcutta Police Act there is no provision for keeping Confidential diaries, which can be said to be privileged, nor is there any such provision in the Calcutta Suburban Police Act. In any event, except section 155, Chapter XIV does not apply to the Police in the town of Calcutta. The last case to which reference was made is the case of Muhammed Suleman v. Emperor, (3) (I.LR. 54 Cal. 218). At page 234 of the report appears the following passage :

In the mofussil, to which the Code of Criminal Procedure applies, and in the suburbs of Calcutta, to which the Calcutta Suburban Police Act (Act II of 1866), applies.

This is entirely obiter and cannot be any authority for saying that the provisions of Chapter XIV do not apply to an investigation of a cognizable offence committed within an area to which the Calcutta Suburban Police Act applies. It may also be argued that the provisions of the Indian Police Act would exclude the provisions of the Criminal Procedure Code which, to my mind, is absurd. I hold, therefore, that the investigation in this case was, and must be, in accordance with the provisions of Chapter XIV of the Code of Criminal Procedure and that therefore sections 154, 161 and 162 should apply with such consequences as are inevitable.