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2002 DIGILAW 581 (KAR)

STATE OF KARNATAKA v. CHIKKABALA NAIKA

2002-09-19

M.P.CHINNAPPA, MANJULA CHELLUR

body2002
MANJULA CHELLUR, J. ( 1 ) THIS Criminal Appeal is filed challenging the Judgment and Order of acquittal in S. C. No. 62/90 on the file of the Additional District and sessions Judge, Bangalore Rural District, Bangalore dated 20. 12. 1997. ( 2 ) THE facts that lead to the fling of the present appeal are narrated as under: ( 3 ) THE appellant herein registered a case against the respondents for offence punishable under Sections 143, 148, 149, 324 and 307 ipc alleging that on 28. 8. 1988 at about 9. 30 p. m. at Kalluthandya, the respondents herein formed themselves unlawful assembly with the common object of assaulting P. W. 10 Doddabala Naik, PW-1 Nagaraja Naik, P. W. 2 Krishna Naik, PW-4 Kamala Naik and p. W. 6 Sakribai in order to commit the murder of above said persons, assaulted them with clubs stones etc. , resulting in grievous injuries to them. ( 4 ) ON the complaint of the complainant, PW. 14 the Head constable who was the Station House Officer, at the relevant point of time registered the case conducted the investigation and filed charge sheet. ( 5 ) AS the matter was exclusively triable by the Court of Sessions, the learned Magistrate committed the same to the Court of Sessions. ( 6 ) ON appearance of the respondents, charges were framed to which they pleaded innocence and accordingly, the matter was taken for trial. During the pendency of the trial one of the accused before the Trial Court viz. , A5 Narayana Naik died. ( 7 ) THE prosecution in support of the charges framed against the respondents examined 14 witnesses, got marked Ex. P1 to Ex. P. 28 and also M. Os. 1 to M. O. 9. ( 8 ) ON behalf of the respondents as defence, Ex. D1 to D5 were marked apart from examining D. W. 1 to D. W. 2. ( 9 ) AFTER examining the respondents under 313 statement, arguments of both sides were heard by the Trial Court. The main argument on behalf of the respondents herein was the very sessions case falls to ground as the entire investigation was done by the head Constable as incompetent person who filed the final report as well before the Court. ( 9 ) AFTER examining the respondents under 313 statement, arguments of both sides were heard by the Trial Court. The main argument on behalf of the respondents herein was the very sessions case falls to ground as the entire investigation was done by the head Constable as incompetent person who filed the final report as well before the Court. According to the defence, the entire proceedings got vitiated on account of this lacuna and therefore there was no need to go into the merits of the case. ( 10 ) BOTH the Prosecutor and the defence Counsel were heard on this controversy and ultimately by a detailed order, the learned sessions Judge placing reliance on Karnataka Police Manual Rules 237, 238 and 239 opined that the duty of the Head Constable was only to assist the Sub-Inspector who is in charge of all the Constables and the Police Station and he has authority only to conduct enquiries into the petty cases if at all deputed by Station House Officer. It further felt that the offences in question was a serious offence as section 307 I. P. C. was invoked, therefore the entire investigation was vitiated as the Head Constable failed to take permission or instruction from the Sub-Inspector of Police in charge of the Police station to conduct and complete the investigation. In view of the admission of P. W. 14 the said Head Constable the learned Judge held that the entire proceedings are vitiated and accordingly, acquitted the respondents herein without going into the merits of the case. ( 11 ) AGGRIEVED by the said order, the present appeal is filed. It is contended on behalf of the appellant that the learned Sessions Judge failed to see several provisions of Criminal Procedure Code where the Police Officer incharge of the police station is empowered to investigate any case without the order of Magistrate within whose local limits the said station is situated. In particular, the learned Judge ought to have looked into Sections 156 and 157 of Cr. P. C. The learned Judge by looking into the Rules of Karnataka Police Manual as referred to above and relying on the evidence of P. W. 14 totally lost sight of provisions of Criminal Procedure Code. With these averments they have sought for setting aside the Judgment and order dated 20. 12. 1997 by allowing the appeal. P. C. The learned Judge by looking into the Rules of Karnataka Police Manual as referred to above and relying on the evidence of P. W. 14 totally lost sight of provisions of Criminal Procedure Code. With these averments they have sought for setting aside the Judgment and order dated 20. 12. 1997 by allowing the appeal. ( 12 ) DURING the course of arguments, the learned State Public prosecutor Sri H. V. Ramesh vehemently argued that the very reasoning given by the Trial Court in view of the above facts would go to show that there is no proper application of law to the facts of the present case and therefore, the appeal deserves to be allowed. ( 13 ) AS against this, learned Counsel for the respondents vehemently argued that the Karnataka Police Manual Rules have statutory force therefore the learned Trial Judge was right in holding that the entire investigation done by P. W. 14 was vitiated. He relied upon AIR 1955 SC 196 and ILR 1992 KAR 2543. ( 14 ) IN order to understanding the authority vested in a Station house Officer or the Officer incharge of the Police Station one necessarily has to look into Sections 156 and 157 of Cr. P. C. so also rules 237, 238, and 239 of Karnataka Police Manual. Sections 156 and 157 Cr. P. C. read as under:section 156: Police Officers power to investigate cognizable case: (1) Any Officer in charge of a police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. 2) No proceeding of a Police Officer in any such case shall at any stage he called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. 3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. 2) No proceeding of a Police Officer in any such case shall at any stage he called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. 3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. Section 157 : Procedure for investigation : (1) If, from information received or otherwise, an officer in charge of a Police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Provided that:- (A) When information as to the commission of any of such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (B) If it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. ( 15 ) RULES 237, 238 and 239 of the Karnataka Police Manual rules read as under: GENERAL DUTY OF HEAD CONSTABLE: 237. ( 15 ) RULES 237, 238 and 239 of the Karnataka Police Manual rules read as under: GENERAL DUTY OF HEAD CONSTABLE: 237. The primary duties of a Head Constable on general duty in a Police Station are:i) To supervise the work of the Constables and see to their instructions, catechism and drill;ii) To perform any duties allotted to him by the Station House officer, whom he will accompany on investigation when required;iii) To be in charge of a guard or escort when deputed on such a dutyiv) To visit all the villages in the Station Jurisdiction at least once a quarter. V) To check all beats, particularly night beats, twice a week;vi) To attend to Court work under the orders of the Station house Officer;vii) To investigate simple cases when deputed by the Station house Officer under Section 157 of the Cr. P. C. andviii) To conduct enquiries into petty complaints. 238. The general duty Head Constable should take approval of the Sub-Inspector/inspector whenever possible, before leaving the Station on routine duties. In the absence of the Sub-Inspector/ inspector from the Station, the Head Constable should ordinally remain in the Station, unless he is called away on emergent duties or ordered by the Sub-Inspector/inspector to go out on some duty. 239. The Station Writer will perform the clerical work of the station under the direction of the Station House Officer. ( 16 ) IN H. R. RISHBUD AND ANOTHER vs STATE OF DELHI1 the Apex Court had an occasion to discuss in detail Section 5-A of the Prevention of Corruption Act, 1952 (corresponding to Section 3 and proviso 5 (4) prior to the amendment ). The question arose before their Lordships was whether the provisions pertaining to the investigation to be conducted as provided in those Sections are director or mandatory. They also went into the question of effect of violation of such provision in relation to Section 156 of Cr. P. C. and schedule-II of Cr. The question arose before their Lordships was whether the provisions pertaining to the investigation to be conducted as provided in those Sections are director or mandatory. They also went into the question of effect of violation of such provision in relation to Section 156 of Cr. P. C. and schedule-II of Cr. P. C. The relevant portion relied upon by the learned counsel for the respondent from this Judgment is at page -201 which reads as under:it is important to notice that where the investigation is conducted not by the Officer in charge of the police station but by a subordinate officer (by virtue of one or other of the provisions enabling him to depute such subordinate officer for any of the steps in the investigation) such subordinate officer is to report the result of the investigation to the officer in charge of the police station. If upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he is to take the necessary steps therefor under Section 170 of the code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details. Thus, under the Code investigation consists generally of the following steps; (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under Section 173. " ( 17 ) IN this Judgment, the Apex Court dealt with the provisions conferring powers on Officer in charge of a police station with reference to Sections 154, 155 and 162 and the Officer to arrest the person or persons suspected of the commission of offence under section 54 of the Code. Ultimately what the Apex Court has said that it is permissible for the Officer in charge of a Police Station to depute subordinate Officer to conduct some of the steps of the investigation as stated above. But however, the responsibility for each one of the above steps would lie on the person in the situation of the Officer in charge of the police station. When a subordinate Officer makes investigation as deputed by Officer in charge of the police station he should report the result to the Officer in charge of the police station. It was further held final step in the investigation as stated above viz. , 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. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise the said work. ( 18 ) IT was further held in relation to prevention of Corruption Act, the underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions - often enough in difficult circumstances - should not be exposed to the harassment of investigation against them on information levelled, possibly by persons affected by their official acts unless a Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same. This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour. It was further held that the legislature considered it necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a Police Officer of a designated high rank. Having regard therefore to peremptory language of sub-section (4) of Section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory. Having regard therefore to peremptory language of sub-section (4) of Section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory. In the above context, the above Judgment of the Apex court came to be pronounced as stated above. Here we are not dealing with any powers vested in any one in a particular crime under a special enactment. ( 19 ) IN the present case we are dealing with the offences punishable under the Indian Penal Code and we are guided by the criminal Procedure Code so far as the procedural aspect is concerned. In the above case, the Apex Court was dealing with the powers of Police Officer of a designated rank relating to offences under the Prevention of Corruption Act. There specific provision is made under the Act who has to investigate. Having regard to the sensitive issues involved, has provided safeguard measures assisting the public servants to discharge their official function without fear or favour. It is also important to look into the definition of Officer in charge of a police Station defined under Section 2 (O) of the Criminal procedure Code which reads as under:2 (O): Officer in charge of a Police Station includes, when the office in charge of the police station is absent from the station - house or unable from illness or other cause to perform his duties, the police officer present at the station - house who is next in rank to such officer and is above the rank of constable or when the State Government so directs, any other police officer so present. ( 20 ) IF we take the definition of Officer in charge of a police station it does not pin point any particular officer of a particular rank entitled to investigate into a case. But however it should be above the rank of constable. Alongwith this definition if we look into Sections 156 and 157 the powers to investigate, there also it refers to Officer in charge of a police station. ( 21 ) ADMITTEDLY as on the date of receiving the information or complaint in this case it was P. W. 14 the Head Constable who was officer in charge of the Police Station. The Sub-Inspector, nelamangala police station was having additional charge of the police station in question. ( 21 ) ADMITTEDLY as on the date of receiving the information or complaint in this case it was P. W. 14 the Head Constable who was officer in charge of the Police Station. The Sub-Inspector, nelamangala police station was having additional charge of the police station in question. He admits after receiving the first information report he informed his higher officers and proceeded to Victoria hospital. It is not the case of the respondents herein that P. W. 14 did not inform his higher Officers about the registration of the case. It is also not their case that he was not the police officer in charge of the police station at that time. No doubt he says in his evidence that, an offence of this nature where Section 307 is involved, only officer of higher rank has to investigate such serious offence but probably he said so in view of Rules 237 and 238. He must be under the impression that he was not entitled to investigate the matter. ( 22 ) WHENEVER an information or a complaint is received by the police from whatever source it may be, it vests the police officer with a statutory duty to investigate. As a matter of fact Section 157 imposes certain duties upon the Officer in charge of a police station to be followed whenever an information or complaint is received. This information could be Police Officers own knowledge as well. The police cannot abstain when such situation arises to investigate into a cognizable offences and they need not wait till someone to come and give the information to the police station. The Officer incharge of the police station is vested with full powers and discretion whether or not to investigate the case. They can also refuse to investigate when no prima facie case is made out. The condition precedent would be intimation of such information or complaint to the Magistrate having jurisdiction and also to enter the said information in the diary maintained to the police station which is commonly known as Station House diary. ( 23 ) THE powers of the police under the Criminal Procedure Code to investigate a cognizable offence are wide but to commence such investigation there must be a reason to suspect commission of a cognizable offences. ( 23 ) THE powers of the police under the Criminal Procedure Code to investigate a cognizable offence are wide but to commence such investigation there must be a reason to suspect commission of a cognizable offences. The investigation as held in the Judgment of the Apex Court 1995 has several stages covering all proceedings under the Code of collection of evidence. ( 24 ) NO doubt the Karnataka Police Manual has statutory force but having regard to the provisions of Criminal Procedure Code one has to see whether the investigation done by the Head Constable in this case under the given circumstances is proper or not. As already stated above he was the Officer in charge of the police station and there is nothing on record to show from the time a complaint was lodged till he filed the charge sheet into the Court after completing the investigation any regular Sub-Inspector was posted to that Station or the Officer who was in charge of this Police Station as additional charge took up the investigation in between the date of registration of the case and filing of the charge sheet. So far as statutory force of Karnataka Police Manual the Division Bench of this Court in the case of K. M. MUNISWAMY REDDY vs STATE OF KARNATAKA2 at head Note -B has held as under: (B) MYSORE POLICE MANUAL : VOLUME II: Order No. 1059 - Effect and Purport Order has statutory force made by inspector General of Police under Section 21 of Karnataka Police act, 1963 Procedure to make entry No disclosure of name entered in Register No authorisation to take photographs, but, if available to be used intra-departmentally nor identification only No restriction on movements for intrution into privacy Close watch of movements only for maintenance of public peace and tranquility Administrative in character, confidential in nature, entry subject to judicial Scrutiny. ( 25 ) IN the present case when once the Officer in charge of the police station P. W. 14 who is empowered under the Code of Criminal procedure has done the investigation, there is no reason to discard such investigation having regard to the rules under the Karnataka police Manual. Definitely the rules under the Karnataka Police Manual cannot be said to have over-riding effect over the provisions of the criminal Procedure Code. In addition, sub-section (2) of Section 156 cr. Definitely the rules under the Karnataka Police Manual cannot be said to have over-riding effect over the provisions of the criminal Procedure Code. In addition, sub-section (2) of Section 156 cr. P. C. referred to above prohibits raising any objection regarding the investigation done by a police officer on the ground that such officer was not empowered under this section to investigate. ( 26 ) UNFORTUNATELY in the case on hand, the learned Judge of the trial Court on this technical point, placed reliance only on the Rules under the Karnataka Police Manual side-lining the provisions of criminal Procedure Code. Having completed recording of the evidence he ought to have proceeded with the merits of the case as well. Under these circumstances, we are left with no option than to remand the matter to the Trial Court concerned for proceeding with the case from the stage at which the matter was disposed of and dispose of the matter afresh. ( 27 ) ACCORDINGLY, the appeal is allowed setting aside the order of acquittal dated 20. 12. 1997. The matter is remanded back to the Trial court to proceed with the case from the stage at which the matter was disposed of. Further the Trial Court is directed to dispose of the matter within a period of three months from today. Office is directed to send the L. C. R. forthwith. --- *** --- .