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Andhra High Court · body

2007 DIGILAW 356 (AP)

Md. Rafeeq v. State Of A. P.

2007-04-03

G.YETHIRAJULU

body2007
O R D E R The petitioner is the accused in Crime No.929 of 2006 of Rajendranagar Police Station, Ranga Reddy District, registered for the offences under Sections 409 and 468 of IPC. 2. The allegation against the petitioner is that he forged his last pay certificate as if it was issued by the Assistant Research Officer. In the complaint, it is mentioned that an enquiry was conducted in this connection against the petitioner and the enquiry report discloses that the signature on the last pay certificate is tallying with that of the petitioner which was issued by a mazdoor by name Habeebuddin. As per the Government instructions, a complaint was lodged with the police for the offence of creating a false last pay certificate and drawing salary on that basis. 3. It was mentioned in the complaint that the matter was referred to the Public Prosecutor of Rangareddy District for his opinion and the Public Prosecutor gave his opinion on 14-12-2004 mentioning that it is a fit matter to file a case against the petitioner. 4. The petitioner filed the present Application by contending that in view of the Judgment of the Supreme Court in R.SARALA v. T.S.VELU AND OTHERS(1) filing of the case after consulting the Public Prosecutor is abuse of process of law, therefore, it is liable to be quashed. 5. In view of the circumstances, the point for consideration is: “Whether the prosecution against the petitioner is liable to be quashed on the ground that on the basis of the opinion of Public Prosecutor, the case has been filed.” 6. The petitioner contended that under Section 24 of Cr.P.C., the Public Prosecutors are appointed for conducting prosecution on behalf of the Central or State Government and he is not supposed to interfere with the investigation of the police and give opinion as he likes and as the Public Prosecutor gave opinion in this case, the prosecution is liable to be quashed. 7. In R.SARALA’s case (1 supra), the Supreme Court considered the role of the public prosecutors. In the above case, there was a direction by the High Court to the Investigating Officer to take back the case from the Court directing to consult the Public Prosecutor and submit fresh charge sheet in tune with his opinion. The Supreme Court held that: 2. Investigation and prosecution are two different facets in the administration of criminal justice. In the above case, there was a direction by the High Court to the Investigating Officer to take back the case from the Court directing to consult the Public Prosecutor and submit fresh charge sheet in tune with his opinion. The Supreme Court held that: 2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the Court, whereas investigation is outside the Court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the Court on culmination of investigation. Its exception is that Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek opinion of a Public Prosecutor under the orders of Court. Here is a case wherein the Investigation Officer concerned is directed by the High Court to take back the case from the Court whereat it was laid by him after completing the investigation and he is further directed to consult the Public Prosecutor and submit a fresh charge-sheet in tune with the opinion of the Public Prosecutor. Is such a course permissible in law? 8. The question here is not simply whether an Investigating Officer, on his own volition or on his own initiative, can discuss with the Public Prosecutor or any legal talent, for the purpose of forming his opinion as to the report to be laid in the Court. Had that been the question involved in this case it would be unnecessary to vex our mind because it is always open to any officer, including any Investigating Officer, to get the best legal opinion on any legal aspect concerning the preparation of any report. But the real question is, should the High Court direct the Investigating Officer to take opinion of the Public Prosecutor for filing the charge-sheet. 9. But the real question is, should the High Court direct the Investigating Officer to take opinion of the Public Prosecutor for filing the charge-sheet. 9. Investigation is defined in Section 2(h) of the Code, as including “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.” We are only concerned in this case with the investigation to be conducted by a Police Officer and hence the latter limb of the definition has no relevance now. Chapter XII of the Code contains provisions regarding “information to the police and their powers to investigate.” 10. After dealing with various aspects of the investigation from Section 154 to Section 168 of the Code, the statute says in the next two sections regarding the subsequent step. Section 169 of the Code enjoins on the officer-in-charge of the police station concerned to release the accused from custody on executing a bond if it appears to him that “there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate.” Section 170 of the Code directs that if upon investigation “it appears to the officerin-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report.” Section 173(1) casts an obligation for completing the investigation without necessary delay and sub-sectiun (2) enjoins on the officer-in-charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officerin-charge or the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. There is no stage during which the Investigating Officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank. 12. Public Prosecutor is appointed, as indicated in Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the Court. He has also the power to withdraw any case fom the prosecution with the consent of the Court. He is the officer of the Court. 12. Public Prosecutor is appointed, as indicated in Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the Court. He has also the power to withdraw any case fom the prosecution with the consent of the Court. He is the officer of the Court. Thus Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court.” 8. The Supreme Court ultimately held that the investigation officer cannot be influenced by the opinion of the public prosecutor. Since there was a direction from the High Court compelling the police officer to obtain the opinion and to file the charge sheet as per the opinion of the Public Prosecutor, it is illegal, therefore, the order is liable to be set aside. 9. In the present case, the defacto complainant before preferring the complaint to the police wanted to make sure that whether there is any prima facie material to prosecute the accused, therefore, an opinion was obtained from the Public Prosecutor and after obtaining the said opinion, the complaint was preferred to the police. There is no complaint that the police officer, after taking up the investigation, had ever consented the Public Prosecutor or he was compelled to approach the Public Prosecutor during the course of investigation. As per the opinion of the Supreme Court, the Police Officer cannot be compelled to get an opinion of the Public Prosecutor. But the police officer can form an opinion as to whether the material collected in this case is prima facie making out a case to make the accused to face the trial. It is always open to the investigating officer or other officer to get the best legal opinion on any legal aspect concerning the preparation of any report. The investigating officer on his own volition can discuss with the public prosecutor or any legal expert for forming an opinion in the case. It is always open to the investigating officer or other officer to get the best legal opinion on any legal aspect concerning the preparation of any report. The investigating officer on his own volition can discuss with the public prosecutor or any legal expert for forming an opinion in the case. Though it is exclusive function of the officer in charge of the Police Station or his superior officer to investigate and file the charge sheet, there was no occasion to consult the Public Prosecutor to give his opinion, therefore, the defacto complainant obtaining the opinion of the Public Prosecutor whether there is a prima facie material to prosecute the accused by itself does not bar the prosecution of the petitioner and in my considered view, filing complaint after consulting the Public Prosecutor is not illegal and it is maintainable under law. 10. In the light of the foregoing discussion, I do not find any grounds to quash the proceedings against the petitioner. 11. Hence, the Criminal Petition is dismissed. --X-