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1989 DIGILAW 3 (KER)

C. Lohithakshan v. State Of Kerala

1989-01-03

CHETTUR SANKARAN NAIR

body1989
Judgment :- Petitioner seeks to revise an order of the Court of Session, Kasaragod, in Crl.R.P. No. 26 of 1988 setting aside the order of the Magistrate declining permission to send material objects involved in the case, to the Director of Forensic Science Laboratory for examination. Petitioner (second accused) and fifty two others are alleged to have committed offences punishable under Sections 143, 147, 148, 323, 324, 120B, 436, 307, 302 and 34 read with S. 149, IPC, at or about 5.30 p.m. on 23-3-1987 - the date of general elections to the Kerala Legislative Assembly. On 29-3-1988, the charge-sheet was filed. Along with that, a petition was made seeking permission to send certain material objects produced in Court to the Forensic Science Laboratory. Reason for the petition was that a report obtained earlier from the Assistant Chemical Examiner, Calicut contained mistakes. The Magistrate declined the prayer, and on revision the Sessions Judge granted it. 2. Counsel for petitioner submits that the order would operate to the prejudice of the accused, and that the Court had no jurisdiction to make an order in the nature made. In answer, learned Special Prosecutor submitted that, what was resorted to was only a step in investigation, and that investigating agency had full powers in this regard. Sanction of Court was sought, only because the articles were in Court. If it were not in the Court, there would have been no bar in forwarding material objects for analysis, submits the Prosecutor. Fact that it was in Court, would not change the legal position, according to him Both sides referred to the decision in Ram Lal Narang v. State, AIR 1979 SC 1791 : (1979 Cri LJ 1346) to illustrate the scope of S. 173(8). 3. The sweep of powers available to investigating agency arise for consideration. Both sides proceed on the basis that the action contemplated is by way of investigation. I will assume so, for, it could not be referred to any other power. 4. Powers of investigating agency have been indicated in Khwaja Nazir Ahmad v. Emperor, AIR 1945 PC 18 : (1945 (46) Cri LJ 413). Both sides proceed on the basis that the action contemplated is by way of investigation. I will assume so, for, it could not be referred to any other power. 4. Powers of investigating agency have been indicated in Khwaja Nazir Ahmad v. Emperor, AIR 1945 PC 18 : (1945 (46) Cri LJ 413). The Judicial Committee stated the position so : "In India there is a statutory right on the part of the Police (under Sections 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." The statement of law made by the Judicial Committee, has been approved by the Supreme Court of India in State of West Bengal v. S. N. Basak, AIR 1963 SC 447 : (1963 (1) Cri LJ 341), Nirmalji v. State of West Bengal, AIR 1972 SC 2639, State of Bihar v. J. A. C. Saldanna, AIR 1980 SC 326 : (1980 Cri LJ 98) and in State of West Bengal v. Sampat Lal, AIR 1985 SC 195 : (1985 Cri LJ 516). In Saldanna's case, the Supreme Court stated: "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 exclusively the field reserved for the executive through the Police Department .... Once it investigates and finds an offence having been committed, it is its duty to collect evidence for proving the offence". In Sampat Lal's case, the Court once again observed that, Courts must be "alive to the fact that the scheme of law is that investigation has been entrusted to Police." 5. Thus it is clear that, Police enjoy unbridled powers in the matter of investigation. Section 173(8) of the Code does not contemplate a different situation. In Ram Lal Narang's case, AIR 1979 SC 1791 : (1979 Cri LJ 1346) the Supreme Court considered the Section, observing : ".... the police have a statutory right and duty to investigate .... These statutory rights and duties of the police are not circumscribed by any power of superintendence or interference in the Magistrate .... In Ram Lal Narang's case, AIR 1979 SC 1791 : (1979 Cri LJ 1346) the Supreme Court considered the Section, observing : ".... the police have a statutory right and duty to investigate .... These statutory rights and duties of the police are not circumscribed by any power of superintendence or interference in the Magistrate .... it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation." Section 173(8) clearly recites that, "nothing in the Section shall be deemed to preclude further investigation after filing a report". The Code thus recognised what was always implied. Codification is only a recognition, and not a restriction. When S. 173(8) gives recognition to an unqualified power, it cannot be read as importing a prohibition. Thus, seeking a prohibition from S. 173(8), would be to go against the tenor and expressed intent of the Section. For this reason, petitioner's contention must fail. The further grievance that the report would prejudice the petitioner, is without substance. The findings to be made, cannot be predicted. Besides, evidentiary value of the report is to be determined by the trial Court. There is no question of prejudice, at all. 6. Scheme of the Code is not to further the interest of accused alone by jettisoning material gathered by the investigation. As observed by the Supreme Court in State of U.P. v. Anil Singh, AIR 1988 SC 1998 : (1989 Cri LJ 88), it is as much the responsibility of the Court to punish the guilty, as it is its responsibility to protect the innocent. Both are public duties and both must be observed. 7. Revision Petition is without merit, and is accordingly dismissed. Petition dismissed.