M. O. Venugopalan v. P V Prakasan — 1985 DIGILAW 153 (KER)

ORDER 1. A simple but important and interesting question of law has come up for consideration in this Criminal Revision Petition. That is regarding the scope and ambit of an inquiry under S.202(1) of the Criminal Procedure Code with particular reference to the powers of the magistrate to conduct a test identification parade as part of such an inquiry. 2. One P.V. Prakasan, a little boy aged 11 years, son of one Lakshmi aged 45, was working as domestic servant at the residence of one Radha, employed as a Nurse in the Government Hospital, Tellicherry. On 25-4-1985 a necklace belonging to Radha was found missing and she suspected Prakasan. He was taken to the Tellicherry Police Station and the matter was reported by her. She went back leaving the boy to the mercy of the police. After sometime she found the necklace in the house itself. She went back to the police station and conveyed the information. The boy was released to her custody and she took him back to her house. 3. The complaint is that while in the police station the boy was cruelly manhandled by four police constables. The boy does not know the names and other details of the assailants. He could identify only one of them by name Chandran. This identification itself is because he heard one of them being called Chandran by others. He gave some identification marks of the assailants and said he could identify them by sight. 4. Next morning his mother Lakshmi heard about the incident. She went to Radha. Her son was found injured and naturally he told his mother what happened. She took him to the Judicial First Class Magistrate II, Tellicherry and a complaint was given. The Magistrate took cognizance of the offence. Sworn statement of the boy was recorded. On behalf of the complainant a petition was filed requesting that a test identification parade may be conducted so that the boy before his memory fades, may be able to identify the assailants. The learned Magistrate allowed this petition and has written to the Chief Judicial Magistrate also. The Chief Judicial Magistrate seems to have ratified the action. On behalf of the complainant a petition was filed requesting that a test identification parade may be conducted so that the boy before his memory fades, may be able to identify the assailants. The learned Magistrate allowed this petition and has written to the Chief Judicial Magistrate also. The Chief Judicial Magistrate seems to have ratified the action. After ascertaining the details of the police officers who were on duty in the station on that particular day the Magistrate directed 15 police officers including the present petitioner to appear for a test identification parade to be conducted at 11.30 a.m. on 20-5-1985. The boy was also given intimation accordingly. 5. The petitioner is one of the persons to whom notice was issued by the Magistrate directing appearance along with others for the proposed test identification parade. He successfully avoided notice and approached this Court seeking its inherent jurisdiction to quash the order and consequent proceedings. Contention is that a test identification parade is the province of investigation by the police and in an inquiry under S.202(1) of the Code the magistrate has no authority to adopt such a course. 6. Lakshmi, mother of the boy, entered appearance through counsel and filed a counter affidavit stating that if an identification parade is not conducted without delay there is the possibility of evidence being lost since the memory of the boy is likely to fade by lapse of time. 7. I requested the Director of Public Prosecutor as well as Sri M.B. Kurup, a senior lawyer of this Court, to argue the matter since in my opinion it involved a question of importance, the decision of which may have its impact in other identical cases likely to arise in future. Both of them as well as the counsel for the petitioner and Lakshmi assisted me ably and I wish to place on record my appreciation. 8. The argument of the petitioner was that if the magistrate thought that a test identification parade is necessary, he ought to have ordered an investigation. Instead what the Magistrate has done was to take cognizance of the case and proceed to conduct an enquiry as envisaged in S.202(1) of the Criminal Procedure Code. Even without conducting an enquiry the Magistrate could have complied with the provisions of S.200 of the Criminal Procedure Code and proceeded to issue process under S.204 of the Criminal Procedure Code. Instead what the Magistrate has done was to take cognizance of the case and proceed to conduct an enquiry as envisaged in S.202(1) of the Criminal Procedure Code. Even without conducting an enquiry the Magistrate could have complied with the provisions of S.200 of the Criminal Procedure Code and proceeded to issue process under S.204 of the Criminal Procedure Code. But he did not do so, in my opinion correctly, because identity of the assailants for issue of process was not within the knowledge of the complainant to be disclosed to the Magistrate. Without such details it was not possible for the Magistrate to issue process since the accused were not named. He proceeded to have an inquiry under S.202(1) probably for the purpose of ascertaining the identity of the accused. Even though postponement of issue of process under S.204 after complying with S.200 in order to conduct an inquiry under S.202(1) is perfectly within the competence of the Magistrate to ascertain whether there are grounds to proceed with, how to proceed in any inquiry under S.202(1) is a matter that has to be decided by the Magistrate after considering all the aspects involved. Even without taking cognizance the Magistrate could have ordered an investigation under S.156(3). After taking cognizance also in an inquiry under S.202(1) instead of examining witnesses he could have ordered investigation by the police and awaited a report for proceeding further. The accused are unnamed and unidentified police officers who could be identified by the complainant on sight. The Magistrate ought to have realised that identification parade is necessary for proceeding with the complaint by issuing process under S.204. He also ought to have realised that such an identification is the province of investigation by the police and not coming within his powers in an inquiry under S.202(1). Therefore the proper exercise of jurisdiction in this case would have been either to resort to S.156(3) or to order an investigation in an inquiry under S.202(1). By adopting the former course the police could have had an investigation under S.156(1) and laid the report before court under S.173(2). By adopting the latter course he could have obtained a report ascertaining identity of the accused and proceeded with the complaint itself. By adopting the former course the police could have had an investigation under S.156(1) and laid the report before court under S.173(2). By adopting the latter course he could have obtained a report ascertaining identity of the accused and proceeded with the complaint itself. Since the accused are police officers he could have directed investigation by some other branch of the police which could be expected to have a fair and impartial investigation. 9. According to the counsel for the petitioner in an enquiry under S.202(1) of the Criminal Procedure Code, the Magistrate can examine only the complainant and the witnesses produced by the complainant for the purpose of ascertaining whether there are grounds to proceed against the person or persons named in the complaint. In support of this contention he relied on the provisions of S.203 of the Criminal Procedure Code which reads thus: "203. Dismissal of complaint. If, after considering the statements on oath (if/any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." 10. S.203 was relied only to impress me that in an inquiry under S.202(1) the Magistrate is entitled only to examine the complainant and the witnesses and do nothing else. In other words the contention was that identification of persons not named as accused in a private complaint is the province of investigation by the police alone and not part of inquiry by the Magistrate under S.202(1). For reasons to be recorded hereunder I think the petitioner's counsel is justified in his submission that the Magistrate is competent only to conduct an inquiry or trial and not to embark upon anything during inquiry under S.202(1) which may be within the province of investigation by the police because by assuming such a power he will be running the risk of acting as an investigator which he cannot do. If he assumes the role of an investigator which he cannot assume, he will be. disentitling himself to conduct the inquiry or trial even though discharge of the official duty of conducting an inquiry under S.202(1) will not disqualify a Magistrate from trying the case. If he assumes the role of an investigator which he cannot assume, he will be. disentitling himself to conduct the inquiry or trial even though discharge of the official duty of conducting an inquiry under S.202(1) will not disqualify a Magistrate from trying the case. It was also argued that inquiry under S.202(1) could only be directed to ascertain whether there are grounds against named accused in order to proceed with the complaint in an attempt to avoid harassment by proceeding with vexatious complaints and not to collect evidence to ascertain the identity or complicity of the accused. 11. In support of the above con tendon the counsel relied on the decision reported in Chandra Deo v. Prakash Chandra ( AIR 1963 SC 1430 ) wherein it was held: "No doubt, one of the objects behind the provisions of S.202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint." On the basis of this decision it was argued that the scope of enquiry under S.202(1) is only to ascertain whether the complaint against named persons is obviously frivolous or not. But that decision has further stated: "But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made." In view of the above said object of an inquiry under S.202(1) of the Criminal Procedure Code I was told by the petitioner's counsel that even though the object of the inquiry is also to bring to book persons against whom grave allegations are made, that cannot in any way authorise the Magistrate to have a test identification parade which is entirely coming within the province of collecting evidence by investigation which is exclusively the province of the investigating agency. In support of this contention the counsel relied on the decision reported in Budhsen v. State of U.P. ( AIR 1970 SC 1321 ) wherein it was held: "The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this, that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by S.162. Criminal Procedure Code. It is for this reason that the identification parade in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification -parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification." On the basis of the above decision the following positions become cleat. The process of test identification parade is entirely within the jurisdiction of the investigating agency and the Magistrate will be having only supervisory jurisdiction at the instance of the investigating agency to ensure that the identification parade is properly and regularly conducted, without any irregularity or illegality. It naturally follows that without intervention from the investigating agency the Magistrate by himself may not be entitled to resort to that course while conducting an enquiry under S.202(1) of the Criminal Procedure Code because such a process which comes exclusively within the jurisdiction of the investigating agency cannot be taken up by the Court. 12. It naturally follows that without intervention from the investigating agency the Magistrate by himself may not be entitled to resort to that course while conducting an enquiry under S.202(1) of the Criminal Procedure Code because such a process which comes exclusively within the jurisdiction of the investigating agency cannot be taken up by the Court. 12. Then naturally a question may arise whether it will amount to discrimination and whether a complainant who directly approaches the Court with a private complaint is not entitled to the benefits of such an identification when the Magistrate has chosen to proceed under S.202(1) of the Criminal Procedure Code. Even in cases of private complaints there will be cases where the complainant approaches the Court against persons who are not identified. In such cases the Magistrate, if he thinks fit, can resort to two courses. Before taking cognizance of the case he can resort to S.156(3) of the Criminal Procedure Code and order an investigation by the machinery of the police. Even in cases where he takes cognizance and proceeds to conduct an enquiry under S.202(1) he can order an investigation as contemplated under S.202(1) and await the report. That report could be looked into as part of the proceedings in enquiry. When identification of the accused is necessary in the case of a private complaint that could be had by resort to either of these courses. In this particular case the learned Magistrate has not chosen to resort to either of these courses. If so he will have necessarily to restrict the scope of the enquiry as authorised by the provisions of S.202(1) of the Criminal Procedure Code. Identification during such an enquiry to make an unnamed person an accused in a private complaint may not be justified at any rate. Evidently the scope of an enquiry under S.202(1) of the Criminal Procedure Code is to avoid harassment to the accused persons by the process of law being extended to them in cases which are likely to turn out to be frivolous. 13. The learned counsel for the petitioner brought to my notice certain decisions dealing with the scope of an enquiry under S.202(1) of the Criminal Procedure Code. Following the earlier decisions of the Supreme Court in Vadilal Panchal v. Dattatraya ( AIR 1960 SC 1113 ) and in. 13. The learned counsel for the petitioner brought to my notice certain decisions dealing with the scope of an enquiry under S.202(1) of the Criminal Procedure Code. Following the earlier decisions of the Supreme Court in Vadilal Panchal v. Dattatraya ( AIR 1960 SC 1113 ) and in. Chandra Deo v. Prakash Chandra ( AIR 1963 SC 1430 ) it was held in Imbichi Bava Haji v. Imbichi Bava ( 1965 KLT 771 ): "It is true that one of the objects behind the provisions of S.202 is to enable the Magistrate to scrutinise carefully the allegation made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. Whether the complaint is frivolous or not has, at that stage, necessarily to be terminated on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under S.202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. For determining the question whether any process is to be issued or not. what the Magistrate has to be satisfied is whether there is "sufficient ground for process" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. The object of the provisions of S.202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath." 14. The principles enunciated in the above said decision are sufficient to indicate the circumscriptions to which an enquiry under S.202(1) of the Criminal Procedure Code undertaken by a Magistrate are put to. What the Magistrate has to be satisfied for the purpose of determining whether process has to be issued or. not in a private complaint is whether there are sufficient grounds to proceed against the accused and not whether there is sufficient ground for conviction as has been held above. What the Magistrate has to be satisfied for the purpose of determining whether process has to be issued or. not in a private complaint is whether there are sufficient grounds to proceed against the accused and not whether there is sufficient ground for conviction as has been held above. In this connection the learned counsel also relied on Thilakan v. Sukumaran ( 1981 KLT 170 ) wherein it was held: "For determining whether process has to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction, or whether the evidence disclosed on the examination of the witnesses is sufficient to prove the case against the accused. In order to come to this con" elusion, the Magistrate is entitled to consider the allegations in the complaint, and the evidence recorded in the enquiry under S.202 or statements recorded during an investigation under the said section, as the case may be. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the Trial Court. The test is that at the initial stage, if there is strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there was no sufficient ground for proceeding against the accused." In that case there was a contention that in an enquiry under S.202(1) of the Criminal Procedure Code the Magistrate is having the authority only to examine the complainant and the witnesses, if any, present in court which means that the Magistrate is not competent to issue process to procure the presence of witnesses for being examined in connection with the enquiry. But the above said decision negatived such a contention and confirmed the authority of the enquiring Magistrate to issue process to the witnesses included in the list furnished by the complainant and examine them when they appear pursuant to the process. 15. S.203 of the Criminal Procedure Code is also capable of throwing light on the scope of the enquiry to be conducted under S.202(1) of the Code. It is said that if after considering the statements of the complainant and the witnesses and the result of the enquiry or investigation under S.202 the . 15. S.203 of the Criminal Procedure Code is also capable of throwing light on the scope of the enquiry to be conducted under S.202(1) of the Code. It is said that if after considering the statements of the complainant and the witnesses and the result of the enquiry or investigation under S.202 the . Magistrate is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint. The materials referred to in S.203 are only the statements of the complainant and the witnesses and the result of the enquiry or investigation under S.202. That may be capable of showing that examination of the complainant and witnesses alone are contemplated in an enquiry under S.202 (1) of the Criminal Procedure Code. In Pramatha Nath v. Saroj Ranjan ( AIR 1962 SC 876 ) which also followed a previous decision of the Supreme Court in Vadilal Panchal v. Dattatraya ( AIR 1960 SC 1113 ) it was held: "The scope of the enquiry under S.202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and S.203 lays down what materials are to be considered for the purpose." In Nagawwa v. Veeranna ( AIR 1976 SC 1947 ) it was observed: "The scope of the enquiry under S.202 is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding .the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under S.202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not." Investigation has been defined in S.2(h) of the Criminal Procedure Code and it reads thus: "(h) "Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf:" When a private complaint is filed and before taking cognizance, as I have earlier stated, the Magistrate may be entitled to forward the same to the police for investigation under S.156(3). So also for the purpose of satisfaction in an enquiry under S.202(1) also the Magistrate may be entitled to order an investigation by the police. In these cases as well as in investigation conducted by the police under S.156(1) or under S.173(8) of the Criminal Procedure Code when the police is in charge of the investigation the Magistrate may not be having jurisdiction to give them any direction in the matter of investigation. It is within the prerogative of the police to have the investigation conducted in the manner in which they think fit. Even in the matter of identification parade, as earlier said, the Court may be entitled to exercise only a supervisory jurisdiction in order to ensure that identification is conducted properly without any illegality or impropriety. This aspect of the matter has been considered in Emperor v. Nazir Ahmed (1945 Privy Council 18) wherein it was found: "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 if 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 province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police under S.154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would 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 under S.561 A. The functions of the judiciary and the police are complementary and not overlapping and the combination of individual liberty with 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 under S.491, Criminal P.C., to give directions in the nature of habeas corpus. In the case of a cognizable offence, the Court's functions begin when a charge is preferred before it and not until then and, therefore, the High Court can interfere under S.561A only when a charge has been preferred and not before. As the police have under S.154 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the court, to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds." 16. It may be said that the Courts will be reluctant to resort to S.156(3) or S.202(1) in having an investigation conducted by the Police, when the complaint itself has been levelled against police personnel who are invested with duties in connection with law and order and investigation of crimes. But in such cases also the Court is having the jurisdiction to ask them to conduct investigation. What is involved therein is only a question of prudence, caution and propriety. Naturally when the complaint is against members belonging to their own fraternity courts may expect that the ends of justice may not be properly extended by the police in favour of the person who approached the Court for vindication of justice. So also such a direction from Court is likely to cause embarrassment even to superior police officers because they will have to conduct investigation into crimes alleged against some of their subordinates. So also such a direction from Court is likely to cause embarrassment even to superior police officers because they will have to conduct investigation into crimes alleged against some of their subordinates. But in view of that fact alone the courts may not be justified in refusing to exercise that jurisdiction because there may be cases where an investigation alone will be capable of bringing the culprits to light. For example the case in hand is one in which I feel that a private complaint may not be able to succeed in the ordinary course. In such a case in order to bring the offenders to justice according to the process of law there must definitely be a fullfledged investigation. The boy says that 4 persons assaulted him inside the police station. None of them were previously known to him also. The name Chandran itself was mentioned by him to identify one of the assailants on the basis of what be heard others calling that assailant. From the complaint, the statement of the boy and the medical certificate it is clear that the boy suffered torture from somebody. If it happened as alleged it is really shocking. It is highly necessary that there should be a proper probe to find out the culprits and the circumstances under which the incident happened. Even though the petitioner is succeeding on the question of law regarding jurisdiction of the Magistrate, I think it may not be out of place to presume that it was the prick of his conscience and the consequent apprehension that forced him to approach this court for the relief prayed. Otherwise he could have kept quiet. 17. From the above discussion it follows that ordinarily the conduct of a test identification parade is something which is part of the investigational process undergone by the Police and not part of enquiry under S.202(1) of the Criminal Procedure Code. Judiciary may not be justified in resorting to interference in the investigational powers of the police. These powers are complementary and not overlapping. It is necessary that each of the above authorities should be left alone in matters coming within their powers. Judiciary may not be justified in resorting to interference in the investigational powers of the police. These powers are complementary and not overlapping. It is necessary that each of the above authorities should be left alone in matters coming within their powers. In S. N. Sharma v. Bipen Kumar ( AIR 1970 SC 786 ) it was held: "The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case." 18. In this particular case there cannot be any dispute that a test identification parade alone will be capable of bringing the offenders to book. According to the allegations in the complaint the offence took place inside the police station and if at all anybody has witnessed the occurrence, it could only be the other police officers in the station. Naturally the evidence of the injured boy and the medical evidence alone may be available. The other police officers, in the ordinary course, may not support him. The evidence of the boy without an identification of the assailants may not be of any use. Under S.9 of the Evidence Act identification of the assailants is a relevant fact also. But the question is whether such an inevitable item of evidence could be procured in a manner which is not warranted or authorised by the provisions of law. The answer could only be in the negative. As a result of the foregoing discussion I will have to find that the action of the Magistrate in ordering a test identification parade and directing the police constables to appear for that purpose is beyond his jurisdiction and accordingly it has to be quashed. 19. During the course of arguments the learned Director of Prosecutions has said that the Department is proposing to have a departmental enquiry against the police officers alleged to be responsible for the heinous crime. 19. During the course of arguments the learned Director of Prosecutions has said that the Department is proposing to have a departmental enquiry against the police officers alleged to be responsible for the heinous crime. He has also assured me on his own that if the complainant boy or on his behalf a petition is filed before the Director General of Police, necessary investigation will be conducted through the Crime Branch CID and in such a case it may not be necessary to proceed with the complaint that has now been filed before the Court. The Department, if they so think fit, will be free to proceed departmentally against the delinquents and if the complainant so desires he can file a petition before the Director General of Police as suggested by the Director of Public Prosecution. On behalf of the complainant it was represented that such a petition will be filed immediately. If so I hope that earnest and sincere steps will be taken by the police in the lines suggested and assured by the Director of Prosecution before this Court in an attempt to do justice in a case which is capable of shocking sense of justice and morality. The petition is, therefore, allowed and the order passed by the learned Magistrate directing the conduct of a test identification parade and the proceedings consequent on it are hereby quashed. Issue carbon copy of this order to the parties on usual terms. Allowed.