M. Shashikala v. Station House Officer, Vanasthalipuram
2001-04-25
S.B.SINHA, V.V.S.RAO
body2001
DigiLaw.ai
S. B. SINHA, C. J. ( 1 ) THIS appeal is directed against a judgment and Order dated 22-1-2001 passed by a learned single Judge of this court in W. P. No. 17686 of 2000 whereby and whereunder the writ petition filed by the appellant herein was dismissed. ( 2 ) THE petitioner herein lodged a First information report against the unofficial respondents herein. The unofficial respondents also lodged a first information report against the appellant. The complaint of the appellant was found to be false whereas a charge sheet had been filed in the complaint filed by the unofficial respondents herein. The grievance of the petitioner in the Writ Petition was that the respondents 1 and 2 while discharging the statutory functions were bound to investigate a crime properly and no interference therewith is permissible. ( 3 ) THE learned Counsel would contend that it was the duty of the police authorities to inform the appellant about the result of the investigation and only in the counter filed by the respondents, it has been disclosed that a final report had been submitted on 8-11-1997 under Section 173 (2) cr. P. C the learned Counsel for the appellant would submit that there exists a distinction between a first Information Report and a charge sheet . According to the learned counsel, the High Court in exercise of its jurisdiction under Article 226 of the constitution of India, can interfere with an investigation and thus the learned single judge must be held to have erred in law in dismissing the writ petition. In support of the said contention, strong reliance has been placed on the decision of this Court in Pearl beaverages Ltd. , New Delhi vs. State of A. P. . ( 4 ) BEFORE adverting to the point involved in this application, the following facts may be noticed: the appellant and the 3rd respondent herein are the partners of the firm Mohan weighing Bridge and Auto Services, autonagar. There were disputes between them regarding the management of the said firm. According to the appellant, when she along with her mother and mother-in-law went to the firm on 6-11-97, at about 3. 00 p. m. respondent No. 3 and respondent no. 4, the worker in the firm misbehaved with them, abused them in filthy language and manhandled her and her mother and mother-in-law. Her mother-in-law received injuries.
According to the appellant, when she along with her mother and mother-in-law went to the firm on 6-11-97, at about 3. 00 p. m. respondent No. 3 and respondent no. 4, the worker in the firm misbehaved with them, abused them in filthy language and manhandled her and her mother and mother-in-law. Her mother-in-law received injuries. She lodged a complaint with the 1st respondent who referred her mother-in- law to Kamineni hospital wherein she was treated for the injuries. The complaint lodged by the appellant was registered as crime No. 265/97 under Sections 323, 506 i. P. C. Respondent No. 3 on 7-11-1997 also lodged a counter complaint alleging that the appellant along with her mother and mother-in-law forcibly entered into the firm, abused him and his father in filthy language and threatened them with dire consequences if they fail to vacate the premises and also damaged the property. The said complaint was registered as cr. No. 266/97 under Sections 448,506 and 427 I. P. C. ( 5 ) IT is not in dispute that in the latter case, a charge sheet had been filed. The 1st respondent herein filed a counter-affidavit wherein it was stated that both the crimes had been investigated into, whereupon, and after due investigation, the appellant was arrested and was later released on bail. Charge sheet was also filed in Cr. No. 266 of 1997 on 27-11-1997 and the said case is pending before the Judicial Magistrate of I class, East and North, Kothapet, R. R. District. However, upon investigation, the allegations made in Cr. No. 268/97 were found to be false. ( 6 ) IN view of the facts as noticed hereinbefore, there cannot be any doubt whatsoever that the appellant herein had all along knowledge about the investigation made by the 1st respondent as she had been arrested on the complaint made by the unofficial respondents herein and that no such action had been taken against the unofficial respondents on her complaint. ( 7 ) THE appellant herein must also be held to have knowledge that a charge sheet had been filed in the complaint filed by the unofficial respondents herein. ( 8 ) FROM the material placed on record, it is difficult to believe that the appellant had no knowledge of the final form filed by the 1st respondent on her complaint in terms of section 173 (2) Cr.
( 8 ) FROM the material placed on record, it is difficult to believe that the appellant had no knowledge of the final form filed by the 1st respondent on her complaint in terms of section 173 (2) Cr. P. C. Even assuming that no notice therefor had been given and only in the counter-affidavit it has been disclosed about the filing of the final form on 8-11-1997, in our opinion, the remedy of petitioner is not to invoke the writ jurisdiction of this Court. The only remedy available to her is to approach the concerned jurisdictional magistrate in terms of the provisions of the Code of Criminal procedure. ( 9 ) IN view of the decision of the Apex court in Abhinandan Jha vs. Dinesh Mishra, there cannot be any doubt whatsoever that, a complainant, in a case where a final form has been filed, may either have to file a protest petition or a fresh complaint in terms of Section 200 Cr. P. C. In Abhinandan jha vs. Dinesh Mishra, the Apex Court held: we have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependant on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. It was further held: the function of the Magistracy and the police are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. Therefore, to conclude, there is no power, expressly or impliedly conferred under the Code, on a magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the code, that there is no case made out for sending up an accused for trial.
Therefore, to conclude, there is no power, expressly or impliedly conferred under the Code, on a magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the code, that there is no case made out for sending up an accused for trial. ( 10 ) THE Apex Court in R. Sarala vs. T. S. Velu held: section 173 (1) casts an obligation for completing the investigation without unnecessary delay and sub-section (2) enjoins on the officer in charge of the police station toward (sic. forward) to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer in charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in section 36 of the Co. de. ( 11 ) IN H. N. Rishubud vs. State of Delhi, a three-Judge Bench of the Apex Court held that 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. At this stage, it may also be relevant to note the following observation made by the Judicial committee of the Privy Council in Emperor vs. Khwaja nazir Ahmad which was followed by the apex Court in Abhinandan Jha s case (supra): in India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any 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. ( 12 ) THE decision relied upon by the learned Counsel for the appellant in Pearl beaverages Ltd. , (supra) cannot be held to have any application in the instant case. In the said case, a learned single Judge of this court observed: it is well settled in a society governed by Rule of Law, no absolute power or discretion is conferred upon any statutory authority which includes the police officer exercising jurisdiction under the Code of Criminal procedure.
In the said case, a learned single Judge of this court observed: it is well settled in a society governed by Rule of Law, no absolute power or discretion is conferred upon any statutory authority which includes the police officer exercising jurisdiction under the Code of Criminal procedure. The power conferred upon a Police Officer relating to entering information of commission of a cognizable offence and power to investigate a cognizable offence and the procedure for investigation, is structured by the provisions of the code referred to hereinabove. The code does not give the police officer any carte blanche without legal bounds either in the province of investigation or in the area relating to the registration of the case. The action of police officer even in the field of investigation are not wholly immune from judicial review. It is well settled that no information could be registered by a police officer-in-charge of a police station, unless such information reveals commission of a cognizable offence. No police officer shall proceed with the investigation unless he has reason to suspect the commission of an offence. No police officer can refuse to investigate into commission of a cognizable offence unless there is sufficient ground for not entering into an investigation. Therefore, no unfettered discretion is conferred upon the police officer to investigate or not to investigate into a cognizable offence, the power therefore, be exercised on the condition of which it is granted by the code. The High Courts exercising jurisdiction under Article 226 of the constitution of India are clothed with the jurisdiction to judicially review the exercise of power by a police officer in the matter of registration of information and investigation relating to commission of a cognizable offence. The aforementioned observations appear to have been rendered per incuriam as held by another learned single Judge of this Court in Crl. P. No. 4363 of 2000 and batch dated 3-1-2001. There cannot be any doubt whatsoever that the High Court in exercise of its jurisdiction under Article 226 of the constitution of India, can issue a writ of mandamus directing stay of the investigation in the event if it is found that such investigation is being carried out mala fide or if it is found that the allegations made in the first information report even if it is taken to be correct, no cognizable offence is made out.
( 13 ) IT is one thing to say that a mala fide investigation may be a subject matter of writ proceedings under Article 226 of the constitution of India, but, it is another thing to say that the Court shall interfere with such investigation or issue any directions as regards the mode and manner in relation thereto. It may further be correct that this court in exercise of its jurisdiction under article 226 of the Constitution of India can issue a writ or a direction in the nature of a writ of mandamus directing the appropriate authorities to comply with their statutory duties as envisaged under the Code of criminal Procedure, but, the same does not mean that the High Court can inter-meddle therewith. In any event, the investigation in the instant case has already been concluded. ( 14 ) FURTHERMORE, nothing has been brought on record to show that as to whether the final form submitted by the 1st respondent has been accepted by the concerned jurisdictional magistrate or not. In the event the final form is accepted, the same having been done by reason of a judicial order, then the remedy of the appellant would be to question the same by filing a revision application. The appellant- writ petitioner in the writ application has not made any such prayer nor such prayer could be made in a writ proceeding. ( 15 ) THERE cannot, however, be any doubt that whenever a final report is filed, the complainant is entitled to a notice in view of the decision of the Apex Court in Bhagwant singh vs. Commissioner of Police and Union public Service Commission vs. S, Papaiah. ( 16 ) WE are, therefore, of the opinion that no case has been made out to interfere with the impugned judgment of the learned single Judge. ( 17 ) FOR the reasons aforesaid, we find no merit in the appeal which is accordingly dismissed. There shall be no order as to costs.