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2002 DIGILAW 667 (KAR)

JAYARAM v. STATE OF KARNATAKA

2002-10-28

K.SREEDHAR RAO

body2002
K. SREEDHAR RAO, J. ( 1 ) THE petitioner filed under Section 439, Cr. P. C. for grant of bail. The petitioner along with the other accused is charge- sheeted for committing offence punishable under Sections 399 and 400, IPC in S. C. No. 504/2002 on the file of the Addl. City Civil and Sessions Judge, Bangalore. According to the prosecution case, on 7-7-2002 at 8. 00 p. m. the Inspector of Upparpet Police Station receives a credible information about the attempt to commit robbery of the passengers by certain persons in Tulasi Park area. Accordingly the Inspector with his staff goes to the scene. He finds 8 to 10 persons holding deadly weapons and they were discussing the plan for robbery of the passengers of the bus. The petitioner is one of them. The accused persons are apprehended and the deadly weapons are recovered. ( 2 ) SRI V. Y. Kumar, HCGP filed objections and opposes the bail petition. ( 3 ) THE police officials who go for investigation are not merely the Investigating Officers in the case but they are also witnesses to the incident. In that view of the matter, the prosecution has placed, prima facie, material about the complicity of the petitioner and other accused in commission of the aforesaid offences. ( 4 ) THE counsel for the petitioner contends that further investigation conducted by the I. O. who has registered the case is bad in law and the entire proceedings are vitiated. In this regard, relied on the ruling of Xavier v. State of Kerala, 1998 Cri LJ 3182 wherein it is held thus :"2. . . . . . . . . . . . . . A complainant being a Police Officer, cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating the previous information recorded under S. 154 or 155, Cr. P. C. and previous statement of the witness, being a Police Officer, complaint recorded, under Section 161, Cr. P. C. , enjoined in Sections 145 and 157 of the Indian Evidence Act and proviso of Section 162, Cr. P. C. and previous statement of the witness, being a Police Officer, complaint recorded, under Section 161, Cr. P. C. , enjoined in Sections 145 and 157 of the Indian Evidence Act and proviso of Section 162, Cr. P. C. In the instant case, before me, P. W. 1 is an Assistant Sub-Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got the Sub-Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub-Inspector of Police or any other Police Officer above the rank of P. W. 1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner, is entitled to get an order of acquittal. In view of my above conclusion, on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner. " ( 5 ) THE facts disclose that the accused in the cited case under alcoholic influence indulges in misbehaviour and obstructs the traffic on the night of 17-12-1991. The Assistant Sub-Inspector who was present at the spot immediately arrests the accused and directs the P. W. 2, the Police Constable to take the accused to the Police Station. The Assistant Sub-Inspector on his own report registers the FIR, sends the accused for medical examination. After obtaining the medical reports, records the statement of the doctor P. W. 3 and records the statement of one P. W. 4 to corroborate evidence of P. Ws. 1 and 2. In the context of the facts it is held that the investigation should have been conducted by a higher rank officer of the police station. Further held in the absence of compliance of proper procedure, a valuable right of an accused to contradict or corroborate the information recorded under the relevant provisions of Sections 154, 155 and Section 161, Cr. P. C. is lost and so also the benefit of such contradiction or corroboration available under Sections 145 and 162 of the Indian Evidence Act is lost. Had the senior police officer conducted the further investigation, he would have recorded the statement of the Assistant Sub-Inspector. P. C. is lost and so also the benefit of such contradiction or corroboration available under Sections 145 and 162 of the Indian Evidence Act is lost. Had the senior police officer conducted the further investigation, he would have recorded the statement of the Assistant Sub-Inspector. Therefore, in the absence of a statement of the A. S. I. recorded under Section 161 (3), Cr. P. C. the accused has lost a valuable right of contradiction or corroboration of the previous statement. ( 6 ) SECTION 154, Cr. P. C. deals with the registration of the first information regarding the commission of a cognizable offence. There is no prohibition for the police officer to register the FIR on suo motu report if he has necessary details of the commission of the cognizable offence. This is based on a sound notion of law that any body can set the law in motion. ( 7 ) SECTION 155, Cr. P. C. deals solely with non-cognizable offence which prohibits that no police officer shall investigate the cognizable offence without the order of the Magistrate. ( 8 ) SECTION 161 of Cr. P. C. deals with examination of witnesses and power of recording of statements of the witnesses who are acquainted with the facts and circumstances of the case and whose evidence is of any incriminating value for the prosecution. Under sub-section (3) of Section 161, Cr. P. C. the I. O. is empowered to reduce the statements into writing and make a part of the record. ( 9 ) UNDER Section 162 of Cr. P. C. an embargo is placed on the I. O. not to obtain the signature of the witness on the statement recorded. The witness whose statement is so recorded under Section 161 (3) of Cr. P. C. when examined by the prosecution in an enquiry or trial, his statement if duly proved may be used by the accused to contradict the witness in the manner provided under Section 145 of the Indian Evidence Act, the omissions and contradictions marked and proved can be used only by the accused for the purpose of contradiction. However, the prosecution cannot make use of the omissions and contradictions for corroboration of its theory. ( 10 ) INVARIABLY in every final report there will be no statement of Investigating Officer obviously for the reason that the Investigating Officer under S. 161 records statement of witnesses. However, the prosecution cannot make use of the omissions and contradictions for corroboration of its theory. ( 10 ) INVARIABLY in every final report there will be no statement of Investigating Officer obviously for the reason that the Investigating Officer under S. 161 records statement of witnesses. It is unnatural to expect the statement of an Investigating Officer under S. 161 (3) in the charge-sheet as he being the author of the charge-sheet there would not be a statement of Investigating Officer under S. 161 (3 ). In the light of the relevant provisions relating to investigation discussed above, I find that there is nothing wrong or illegal when there is no statement of an I. O. under S. 161 (3) and it does not in any manner prejudice the accused the I. O. could be effectively cross-examined. Absence of prior statement of an Investigating Officer cannot result in any sort of miscarriage or prejudice to the accused. ( 11 ) THERE is nothing wrong on the part of a S. H. O. to register a complaint on his own report and investigate the case completely. In the course of discharge of his duties if he happens to come across a commission of a cognizable offence, there is a legal duty on the part of the police to immediately apprehend the accused and to register the FIR. In discharge of the official duties, the police officer continues the investigation, the integrity of the officer need not be suspected. Many a time it so happens that the effective investigation would be complete immediately at the scene like the present one. Only the other formalities of investigation had to be concluded and if those formalities are attended to by the Investigating Officer who has registered the case, it cannot be said that the investigation is tainted or vitiated merely by the reason that the person who has registered the case has investigated the same. The situation is different if the Investigating Officer has personal interest or stakes in the matter or has a personal prejudice against the accused. In such case, he is disabled from investigation. The situation is different if the Investigating Officer has personal interest or stakes in the matter or has a personal prejudice against the accused. In such case, he is disabled from investigation. So also if the offence is of heinous nature to be investigated by senior rank police officer, but a junior rank police officer registers FIR on his own report and continues and complete the investigation and such conduct on the part of the junior rank police officer may be exposed to suspicion and would be bad in law. However, when there is no discreenable or inferrable oblique motive in the registration of case and conduct of investigation by a senior rank officer it cannot be said that the person who registers the case is disabled from continuing and conducting the investigation of the case. ( 12 ) FOR the reasons aforesaid, I respectfully disagree with the views and ratio expressed by the learned S. Marimuthu, J. , in the cited case. ( 13 ) IN that view of the matter, I hold that there is no illegality committed by the investigating officer in this case by filing the charge-sheet. Accordingly I am unable to agree with the contention of the learned counsel for the petitioner that the investigation in this case is vitiated. There is a prima facie material placed against the accused/petitioner. ( 14 ) ACCORDINGLY, the petition is dismissed. ( 15 ) SRI V. Y. Kumar granted four weeks time to file the memo of appearance. 15-11-2002 ORDER ON BEING SPOKENTO ( 16 ) THE Counsel for the petitioner relied on the decisions of the Supreme Court in Bhagawan Singh v. The State of Rajasthan, 1975 SCC (Cri) 737 : (1976 Cri LJ 713) and Megha Singh v. State of Haryana (1997 SCC (Cri) 267) : (1995 Cri LJ 3988) to bring home the point that the Police Officer who registers the complaint on his own report is disabled from conducting the further investigation and to file the charge-sheet. After carefully going through the facts and ratio laid down, I find the said decisions have no bearing on the facts involved in this case. In Bhagwan Singh's case, the Head Constable registers the complaint against the accused for an offence under S. 165 (A), IPC alleging that the accused offered him a bribe of Rs. 50/- and conduct the entire investigation. In Bhagwan Singh's case, the Head Constable registers the complaint against the accused for an offence under S. 165 (A), IPC alleging that the accused offered him a bribe of Rs. 50/- and conduct the entire investigation. The facts and observations made by the Supreme Court indicate that the Head Constable being the complainant himself had a personal element and interest in the matter and bears personal animus against the accused as he is personally offended. In that view it was held that the investigation conducted by the Head Constable who is the complainant and the Investigation Officer is bad in law. ( 17 ) IN Mega Singh's case also the Head Constable along with a constable apprehends the accused for commission of offence punishable under the TADA and under the Arms Act. Except the evidence of Head Constable and the constable, there was no other evidence. There was discrepancy in their depositions and the Head Constable was a lower rank official in the hierarchy. It was contention of the defence that at the instance of local M. L. A. the case has been falsely framed up by the complainant. In that view, the Court held that the Head Constable who registered the complaint could not have investigated the case and filed charge-sheet as the investigation was not free from doubt about its fairness and impartiality. In the instant case no such conditions or circumstances are there. Accordingly, I find no ground to interfere with the order dictated. Petition discussed. --- *** --- .