Andhra HC (Pre-Telangana)
P.P.H.C. Of A.P. vs Mohd. Mansoor And Ors. on 14 March, 2001
Equivalent citations: 2001(1)ALT(CRI)275, 2001CRILJ3169
ORDER T. Ch. Surya Rao, J.
1. The State through the Public Prosecutor assails the Order dated 29.08.2000 passed by the learned Metropolitan Sessions Judge, Hyderabad, in Crl.M.P. No. 820 of 2000 in Sessions Case No. 276 of 1999.
2. The factual matrix germane for an effective adjudication of the matter may be set forth thus:
The Inspector of Police, Task Force, on a tip off from the Delhi Police along with his team accompanied by Delhi Police proceeded to the Electrical Shop situated at Toli Chowk, found A-10 therein, questioned his complicity when A-10 said to have made a confession before him pursuant to which he seized certain articles under the cover of a panchanama. On a letter addressed by him informing, inter alia, the action taken by him that far, to the Deputy Commissioner of Police, Detective Department, Hyderabad, who is competent to investigate into such offences, the crime has been registered by the Assistant Commissioner of Police, White Collar Offences, Central Crime Station, Hyderabad, who eventually laid the charge sheet against the accused for the said offences before the XXI Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections 121, 121-A, 122, 153-A, 153-B, 420, and 471 of the Indian Penal Code (for brevity 'the IPC'); Sections 25 and 35 of the Arms Act; and Sections 4 and 6 of the Explosive Substances Act. The learned Metropolitan Magistrate, after having taken cognizance of the offences, committed the case duly to the Court of Sessions. The learned Metropolitan Sessions Judge, Hyderabad, after having taken the said case on file as S. C. No. 276 of 1999; framed charges for all the said offences enumerated above; and posted it for trial by fixing the schedule. On 17.08.2000, when one Sri M. Venkat Rao, Inspector of Police, Task Fore, North Zone, was being examined as P.W.1, during the course of his examination-in-chief, when the witness was deposing about the seizure of certain articles pursuant to the confessional statement said to have been made by the first accused in the case, an objection was taken by the learned defence counsel on the premise, that what the witness speaking was hearsay evidence, that he was not an investigating officer and that he was not competent to record confessional statement of the accused and effect seizure of the properties in his capacity as a Police Officer. On that objection, further examination of the witness could not be proceeded and was postponed. At that juncture, the Public Prosecutor, who was conducting the trial in the case, seems to have filed Crl.M.P. No. 820 of 2000.
3. That application having been opposed and after having heard both sides, the learned Metropolitan Sessions Judge framed the following points for his determination:
1) Whether the de facto complainant Sri M. Venkat Rao, the then Inspector of Police, Task Force, North Zone, Hyderabad, was competent to investigate the offence and to record the statements of the accused, arrest them and register the case?
2) Whether the de facto complainant Sri M. Venkat Rao cannot speak about his investigation since he is the de facto complainant only?
3) Whether the prosecution can let in any evidence through Sri M. Venkat Rao excepting giving report to the Deputy Commissioner of Police and arrest of the accused?
4. After having thus formulated the points for determination, the learned Judge proceeded to answer all the points together. Under the impugned Order, the learned Judge held that P.W.1-the de facto complainant could depose with regard to his complaint and arrest of the accused and he could not depose with regard to the confessional statements, and confession-cum-seizure panchanama recorded by him. The learned Judge was of the view that the Apex Court in several decisions decided that the de facto complainant could not be an investigating officer and, therefore, P.W.1 could not investigate the offences and could not have given the evidence in regard to the recording of the confessional statement and confession-cum-seizure panchanama and other articles that were seized from the possession of the accused. Thus, he sustained the objection taken on the side of the accused. The learned Judge was of the view that the evidence in regard to the confessional statements and confession-cum-seizure panchanama of the accused and the material objects which were seized under the panchanama could not be marked and the said evidence was inadmissible even under Section 27 of the Indian Evidence Act. The said Order is now being assailed, as aforesaid.
5. The sole basis for arriving at such a conclusion by the learned Metropolitan Sessions Judge seems to be that P.W.1 is the de facto complainant, inasmuch as on his complaint the crime has been registered and after investigation, charge sheet has been laid. In view of the said conclusion, it requires certain of the provisions of the Criminal Procedure Code (for brevity 'the Code') are to be adverted to for brevity and better understanding of the matter, which eventually may help adjudicating the contentious issues in this case.
6. Section 2 of the Code defines the expression complaint and is obvious that any allegation made orally or in writing to a Magistrate informing him that a person, whether known or unknown, has committed an offence with a view to his taking action under the Code. In the explanation appended to the said provision, it is sought to be elucidated that a police report, which is obviously distinct and separate from a complaint, submitted in cases, which are non-cognizable shall be deemed to be a complaint and the police officer who conducted investigation and submitted his report shall be deemed to be the complainant. The explanation has been appended to the provision under the new Code so as to set it naught the controversy prevailed earlier as to what happens when the police submit a report in a non-cognizable case without the necessary warrant from the concerned Magistrate. From this provision, it is crystal clear that a complaint is separate from a police report and in fact the expression 'police report' has also been defined under the Code in Section 2 (r) of the Code. From this it is to be seen as to who is the complainant. A police officer cannot certainly be a complainant except in cases where he submits his report in a non-cognizable case. The report he submitted to the court is a police report, which cannot be a complaint at all.
7. Chapter II of the Code deals with constitution of Criminal Courts and Offices. Chapter IV of the Code, which is germane for the present purposes, deals with the powers of Superior Officers of Police and aid to the Magistrates and the Police. According to Section 36, the powers exercisable by a Police Officer in-charge of a Police Station are also exercisable in the same way by the Superior Officers of that Police Officer through out the local area to which they were appointed.
8. Chapter V of the Code is yet another Chapter, which is very much germane for consideration in the context. Under Section 41 of the Code, coming in the realm of the said Chapter, any police officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. It is obvious thus the police officer can effect arrest when he suspects him of having committed any cognizable offence. Under Section 42 of the Code, the police officer can arrest a person though he has concerned in non-cognizable offence when that person refuses to give his name or address. So as to effect arrest, the police officer having authority to arrest a person has any reason to believe that the person concerned has entered into any place, he can have necessary ingress into that place. Under Section 51 of the Code, he can search that person after effecting such arrest and seize the offensive weapons if any found under Section 52 of the Code. Under Section 55, the Officer in-charge of a Police Station or any Police Officer making an investigation may depute his subordinate to effect arrest without a warrant by delivering an order in writing to such person. Sub-section (2) thereof saves the general power of a Police Officer to arrest a person under Section 41 of the Code.
9. Chapter VII of the Code deals with the process to compel the production of things. This Chapter is in three parts. Part C pertains to general provisions relating to searches. Section 100 obligates the person in-charge of closed place to allow search to be conducted. Under section 102, which is one of the miscellaneous provisions coming in this Chapter, any Police Officer may seize any property, which may be alleged or suspected to have been stolen or found under the circumstances, which creates suspicion of the commission of any offence. Under sub-section (2) if such Police Officer effecting seizure, is subordinate to the officer in-charge of the Police Station shall forthwith report the seizure to the officer and under sub-section (3) to the Court.
10. Chapter XI of the Code deals with the preventive action of the Police. Section 149 coming in the realm of that Chapter, under which every Police Officer may interpose for the purpose of preventing, and shall to do the best of his ability, prevent the commission of any cognizable offence. Under Section 150, every Police Officer receiving information of a design to commit cognizable offences shall communicate such information to the Police Officer to whom he is subordinate and to any other officer whose duty it is to prevent or take cognizance of the commission of such offence. Under Section 151, which is relevant for the present purposes, a Police Officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence be otherwise prevented. Similarly, under Section 152, a Police Officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation.
11. Chapter XII of the Code is an important Chapter in the Code, which deals with the power of the Police to investigate. Under this Chapter, the investigating officer under Section 156 is the relevant Section to be adverted to in the first instance. Under sub-section (1) any Officer in-charge of a Police Officer may without the order of Magistrate, investigate any cognizable case, which a Court having jurisdiction over the local area within the limits of such station would have power to enquiry into or try under the provisions of Chapter XIII. Sub-section (2) envisages that no proceeding of a Police Officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this Section to investigate. Under Section 157, the procedure for investigation is envisaged, which includes various measures to be taken including the discovery and arrest of the offender. Section 165 empowers the investigating Officer to conduct search any place within the limits of such Police Station. Thus, the arrest and search envisaged by Chapter XII are different from the arrest and search envisaged by Chapter V and Chapter VII, as the case may be. While under Chapter V the expression used 'any Police Officer' is not qualified under Chapter XII, particularly under Section 156, the expression 'any officer in-charge of a Police Station' is qualified by the territorial limits. However, under sub-section (2) of Section 156, the action of a Police Officer shall not be called in question on the ground of his competence to investigate.
12. A Police Officer may do many things; for example, he may arrest, take preventive action, disperse unlawful assembly and so forth. He may do these things while investigating or even without investigating. Even information may be given by one police officer to another under chapter XI, Sec, 150. Thus it cannot be said that, because a Police Officer is investigating he is not doing anything under any other chapter or vice versa. On the contrary, it is quite consistent with human conduct and the natural course of events that preventive action started under chapter XI may lapse investigation under chapter XII.
13. Apart from the provisions of the Criminal Procedure Code, the provisions of the Indian Police Act, 1861 and the Police Act, 1888 shall have to be considered. The Police force is constituted for the main purposes of detecting the crime, and for convenience sake various Police Districts have been formed. The Andhra Pradesh (Andhra Area) District Police Act, 1859, which was earlier Madras District Police Act prior to its adaptation envisages to make the Police force more efficient throughout the State for the prevention and detection of crime and to reorganise the Police force. Under this Act, the general Police District is defined as the District to which the Act applies, meaning thereby the Districts in the State. Under Section 8 thereof, the entire Police establishment in the State shall be deemed to be one Police force. Under Section 21 thereof, every Police Officer shall, for all purposes contained in the Act, be considered to be always on duty and shall have the powers of a Police Officer in every part of the general Police District. Negligence to perform the duties entails penal consequences under Section 44 thereof. Section 19 of the Andhra Pradesh (Telangana Area) District Police Act, 1329 Fasli is well nigh akin to Section 21of the Andhra Pradesh (Andhra Area) District Police Act. A perusal of the above provisions makes it clear as to what are the rights and duties of a Police Officer in general and the rights, duties and powers of a Investigating Officer in particular. A Police Officer, who has no jurisdiction in a particular Police District or as a matter of fact in that particular area, that has been divided for convenience sake for better and effective administration, is not and cannot be divested of the general duties, obligation and powers enjoined upon him by virtue of his appointment as such Police Officer. If he lacks territorial jurisdiction or special jurisdiction, as the case may be, he cannot be a mere silent spectator when if it is brought to his notice an act which is likely to cause breach to the public order, an act which is a cognisable offence punishable either under the provisions of the Indian Penal Code or under the provisions of various special enactments. He is obliged to take all preventive measures and if the offence is perpetrated to take such steps which are necessary before transmitting the case to the other Police, which is competent to investigate the offence. Therefore, a Police Officer is always duty bound and is obliged to take any preventive action, which is necessary under the circumstances. Such action shall not be called in question as per sub-section (2) of Section 156 of the Code vide SATVINDER KAUR v. STATE (GOVERNMENT OF NCT OF DELHI), The Apex Court held in para 10 as follows:
"It is true that territorial jurisdiction also is prescribed under sub-section (1) of Section 156 to the extent that the officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to enquire into or try under the provisions of Chapter XIII. However, sub-section (2) of Section 156 makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then FIR can be forwarded to the police station having jurisdiction over the area in which the crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it."
(Emphasis is mine)
14. If any action is initiated by a Police Officer under such circumstances, albeit he lacks jurisdiction to investigate, it cannot be said by any stretch of the imagination that the said act is outside the purview of his power and competence and such Police Officer cannot be relegated to the status of a de facto complainant in the event of subsequent investigation is taken up by another Police Officer. It may be mentioned here that the criminal law can be set into motion by any person. The concept of locus standi is alien to the criminal jurisprudence. Registration of the crime or issuing a First Information Report is not a condition precedent for conducting an investigation vide EMPEROR v. KHWAJA NAZIR AHMAD, A.I.R. 1945 P.C. 18 and APREN JOSPEPH v. STATE OF KERALA, . These are the well-established principles of criminal jurisprudence.
15. In this backdrop, after having understood the spirit and content of the various provisions in the Criminal Procedure Code and the relevant Police Acts germane in the context, let us now proceed to consider the correctness, legality and propriety of the Order now being impugned.
16. Doubtless, P.W.1 in this case is a Police Officer and was working as Inspector of Police at the relevant time in the Task Force Wing of North Zone of the Hyderabad Metropolitan Area consisting of the Twin Cities of Hyderabad and Secunderabad. Obviously all these offences shall be investigated, and tried according to the provisions of the Code. The fact that the crime has been registered by the Deputy Commissioner of Police, Detective Department, upon the information furnished by the Inspector of Police, Task Force, North Zone, informing, inter alia, the action taken by him cannot, in my considered view, exclude the action taken by the Inspector of Police, from the facts of the case nor the status of the Inspector of Police on whose information the crime has been registered be relegated to the status of a de facto complainant. In all criminal cases, the State is the complainant since the State has undertaken the task of maintaining law and order and to prosecute the various perpetrators of the crime so as to maintain an orderly society. But the real complainant, who is the victim of the crime, is always separate. That is the reason why; the victim of the crime is the de facto complainant or the person who sets the criminal law into motion as a matter of fact. The de jury complainant is always the State for all practical purposes. As aforediscussed, the Inspector of Police on whose information the crime has been registered cannot be a de facto complainant under the circumstances inasmuch as he is a Police Officer who acted on a tip off while exercising his functions as such Police Officer and who requested the competent Police to carry on further investigation cannot be said to have been divested of such power as a Police Officer, merely because on his information the crime has been registered and investigated into, eventually leading to filing of the charge sheet.
17. Let us now consider the law enunciated by various courts including the Apex Court. The first to be considered is BHAGWAN SINGH v. STATE OF RAJASTHAN, 1975 SCC (CRI.) 737. According to the facts in that case, the Head Constable Ram Singh along with four other Police Constables was on patrolling duty with a view to prevent smuggling of grains from Rajasthan to Utter Pradesh. On the intervening night of 13/14.11.1966 the Head Constable found one buffalo cart, intercepted it, and on verification he noticed that the cart was loaded with six bags of gram being transported without any valid permit. When the Head Constable Ram Singh questioned the person sitting on the bags, perhaps the owner thereof, he entreated the Head Constable Ram Singh to allow him to go and offered to pay him a bribe of Rs.40 or Rs.50. When the Head Constable Ram Singh refused to accept the bribe, that person took out a bundle of currency notes of Rs.510 from the 'antan' of his dhoti and offered to the Head Constable as bribe, but he declined to accept the same and seized the currency notes under a seizure memo in the presence of the other four Police Constables. At the same time, he also seized the six bags of gram found in the cart under a separate seizure memo and arrested the appellant-bribe giver. He then lodged a First Information Report at the Police Station in which he showed himself as informant or complainant and the briber giver Ram Raj as a person who said to have committed an offence under Section 161 of the Indian Penal Code. Realising that he was not authorised to do so, forwarded the papers to the Deputy Superintendent of Police who after investigation laid the charge sheet against the Ram Raj under Section 165-A of the IPC in the Court of Special Judge, Bharatpur.
18. The defence taken by the appellant-Ram Raj was that he was having valid permit to transport the grain bags and that when he showed the permit to the Head Constable Ram Singh the latter ignored it and asked the appellant to pay some money by way of bribe and when the appellant refused to pay any bribe, he was arrested by the Head Constable and snatched away from the appellant a bundle of currency notes of Rs.510 which was found on his person. From the facts, it is obvious that two separate and distant offences are emanating, one pertains to the for the alleged transport of the gram bags without valid permit and the other under Section 165-A of the IPC for offering the bribe, which is triable by the Special Court under the Prevention of Corruption Act, 1947. The case, which went up to the Supreme Court, is the case under Section 165-A of the IPC. The allegations and counter allegations in that case are that offering of bribe and demanding of the bribe, as the case may be. That offence punishable under Section 165-A of the IPC has nothing to do with the status of the Head Constable Ram Singh except to the extent of showing that he is abusing his official position for obtaining a pecuniary advantage. Therefore, in the case of bribery in view of the allegations and counter allegations, the Head Constable Ram Singh was the complainant and the appellant before the Supreme Court was the accused. Under the Prevention of Corruption Act, such crime shall be investigated by the Special Police or a Police Officer belonging to Anti-Corruption Bureau. It is purely a personal case of the Head Constable Ram Singh where he alleged that the appellant offered bribe, which according to the appellant that Head Constable himself demanded bribe. Under such circumstances the Supreme Court held that the Head Constable Ram Singh being the complainant alleging that the appellant offered him bribe could not have conducted investigation. That cannot be a uniform principle in all cases to come. Merely because the investigating officer is arrayed as complainant in the charge sheet he cannot become the complainant so as to contend before the Court that he cannot conduct investigation.
19. Following the said judgment of the Apex Court, the High Courts of Rajasthan, Madras and Kerala in RAM KUMAR SINGH V. STATE OF RAJASTHAN, V-1994 (2) Crimes 277; THALAVOI V. STATE, 1995 The Madras Law Journal Reports (Criminal) Vol.XXXIX Page 410 and XAVIER V. STATE OF KERALA, 1998 CRL.L.J. 3182 have taken the view that the police officer upon whose complaint the crime has been registered being the complainant cannot investigate the case by himself. With due respect, I am not able to concur with the said proposition of law. The first case rendered by Rajasthan High Court was a case where the Station House Officers of three different stations when proceeding along with the members of the staff on the road spotted two persons and suspecting those two persons were carrying opium with them, after complying with the provisions effected search on those two persons and found opium packets without any licence and therefore they arrested those persons and a memo was prepared in that regard. Thereupon, they proceeded with the arrested persons with their respective police stations and registered the crimes separately and issued the necessary F.I.Rs and after collecting the subsequent information, they laid charge sheets. Rajasthan High Court held that the officer making recoveries of the contraband should not have investigated into the matter and the investigation should have been made by an independent officer, preferably by a superior officer than that officer.
20. In the second decision, when the Sub Inspector of Police went for a raid he found the accused in possession of 5 litres of illicit arrack near a river in Seranmadevi Ammanathan Koil street, seized that illicit arrack said to have contained some poisonous substance and thereupon prosecuted the person under Section 4(1)(A) of the Tamilnadu Prohibition Act. It was held by the Madras High Court that when the officers who launched the complaint and F.I.R. themselves had taken up the investigation and filed charge sheets, naturally there was no chance for verification of the correctness of the allegations made in the F.I.R. by an independent investigating officer and the officer who lodged the complaint would have been naturally interested in securing the evidence to support his version and therefore it could not be stated that the said approach was unbiased. Ultimately, the Court held that the procedure adopted by the investigating officer was illegal.
21. In the third decision, when the accused behaved in a disorderly manner, uttering rubbish language and obstructed the traffic in a drunken mood, the Assistant Sub Inspector of Police arrested him in the presence of the police constable, took him to the police station where Ex.P1 complaint was written by him and thereafter sent the accused for medical examination and when it disclosed that he consumed alcohol and after conducting investigation sought to prosecute him by laying a charge sheet. Under those circumstances, it was held by the Kerala High Court that the particular police station in which the Assistant Sub Inspector of Police had been working has got a Sub Inspector of police and therefore the investigation ought to have been conducted by the Sub Inspector of police or any other police officer above the rank of the Assistant Sub Inspector of Police. The facts do not disclose what complaint he drafted. However, the Kerala High Court was of the view that in such cases, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating the previous information recorded under Section 154 or 155 of the Code and the previous statement of the witness, recorded under Section 161 of the Code, in accordance with Sections 145 and 157 of the Indian Evidence Act and proviso of Section 162 of the Code.
22. This Court in MADDU LAKSHMANA RAO V. STATE OF A.P., held that the complainant himself couldn't act as Investigating Officer and the entire investigation gets vitiated. That was again a case where the District Inspector, Krishna, ACB, Vijayawada range upon receiving an information that the accused being a public servant has amassed assets disproportionate to the known source of income has registered that information as the F.I.R. which mentions the assets possessed by the accused, the estimated income of the accused etc., facts. He registered the offence under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act 1988. On an application filed by the accused under Section 482 of the Code seeking to quash the F.I.R., discussing the judgment rendered by the Apex Court in BHAGWAN SINGH v. STATE OF RAJASTHAN; XAVIER V. STATE OF KERALA and RAM KUMAR SINGH V. STATE OF RAJSTHAN (supra), this court has come to a conclusion that there is no point in allowing the investigation to continue with this infirmity and if it results in filing of the charge sheet, to allow the trial to be proceeded and then at the end of the trial to consider the question, whether the fact of the complainant being the investigating officer has adversely affected the credibility of the prosecution case and therefore since the matter has been brought to the notice of the Court at the earliest, the learned Judge allowed the petition and quashed the proceedings subsequent to the recording of the First Information Report, made it clear that it will not preclude further investigation by another officer other than the complainant.
23. The Apex Court in MEGHA SINGH V. STATE OF HARYANA, held as follows:
"We have also noted another disturbing feature in this case. P.W.3, Siri Chand, head constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
24. On facts, after effecting the seizure and arresting the accused, P.W.3 sent rukka Ex.PD prepared in regard to the recovery to the police station on the basis of which F.I.R. Ex.PD/1 was recorded by the Sub Inspector of Police Charanjit Singh. The case pertains to the Terrorist and Disruptive Activities (Prevention) Act. When the appellant who was present on the kacha route connecting the village Faggu with village Rohan was spotted by P.W.3 and his police party and when he tried to cross through the field, on suspicion he was intercepted and the Head Constable P.W.3 thereafter searched the person of the accused and effected seizure. The Apex Court ultimately held that such practice of conducting the investigation by the person on whose complaint, the F.I.R. was lodged should not be resorted to because there may not be any occasion to suspect fair and impartial investigation. The Apex Court did not say that the police officer becomes the complainant and he shall not investigate into the matter as a principle of law. In fact, there was no independent witness apart from the testimony of the police officer in that case. Under those circumstances, the observations extracted supra have come to be made.
25. From a conspectus of the above judgments, it is obvious that the practice of conducting investigation by the person on whose proceedings the crime has been registered should not be resorted to because there may not be any occasion to expect fair and impartial investigation. But there is no rule, which says that the Police Officer on whose report or proceedings a crime has been registered shall not investigate the case. Indeed there is no provision even in the Code prohibiting the police officer from conducting investigation when he happens to see the occurrence and then starts investigation or goes to the scene of offence without the formal registration of the crime and the crime is registered later either on his report or on the proceedings conducted by him. Perhaps prudence requires such Police Officers not to proceed with the further investigation to avoid any possible comment. It is not expected of to suspect always the police. It all depends upon the facts of a particular case. It is certainly not correct to say that always and in all circumstances the subsequent investigation done by the Investigating Officer, in a case where the crime has been registered on his report or proceedings, is biased or lopsided. In any case the acts performed by him fall within the purview of the definition of 'investigation' when performed even without the formal registration of the crime.
26. In this context, it is apposite here to consider a judgment of the Apex Court in MAHA SINGH V. STATE (DELHI ADMINISTRATION), . That was a case where on a complaint received by the Inspector of Anti-Corruption Department, he arranged a raid by noting each step taken thereafter in a regular manner. Then after the raid, he examined the witnesses and recorded their statements and later forwarded the complaint for formal registration. The Apex Court held that what was done by the Inspector in order to detect the accused by arranging the raid was part of his investigation, although the crime was registered later on the complaint given by the complainant to the Inspector.
27. Therefore, it is obvious from the above discussion that the acts performed by the police officer prior to the registration of the crime come within the purview of the term 'investigation'. As a matter of that registration of the crime is not a condition precedent. Instances are not lacking where even without registering the F.I.R., investigation has been conducted and the perpetrators of the crime have been prosecuted. Under such circumstances, the police officer who was duty bound, upon receiving the information immediately swings into action, the steps taken by him before registering the crime are certainly the steps taken during the course of the investigation. The subsequent registration of the crime either upon the proceedings got drafted by himself or upon the report sent by him stating inter alia the action taken by him so far, cannot alter his status as that of an investigating officer and the document upon which the crime has been registered cannot certainly be taken as the complaint in the case, in view of the definition of the expression 'complaint' as enjoined under Section 2(d) of the Code. Obviously a complaint is altogether different from a first information report and the difference between a complainant and a first informant shall not be lost sight of.
28. For the foregoing reasons with due respect, I am unable to persuade myself to call the investigating officer as a complainant in the event of a crime being registered on the report sent by him or on a proceeding recorded by him during the course of his investigation in respect of a cognizable case. Therefore, the conclusion of the learned Metropolitan Sessions Judge that the said inspector is the de facto complainant and he could not have carried the investigation, per se, is out of context and totally not applicable in view of the peculiar facts of this case and the legal position as discussed supra.
29. At the time of recording the evidence, the Criminal Courts are expected to permit the parties to adduce only the relevant evidence and not otherwise, as per Section 5 of the Indian Evidence Act. This obligation to allow only relevant evidence to come on record by the Courts is regardless of the fact that there has been objection or no objection on the side of the adversary. Therefore, if the Court feels that a particular part of the evidence sought to be adduced either by means of oral evidence or by means of documentary evidence, is not relevant since it is not covered by any one or other of the Sections 6 to 55 of the Indian Evidence Act, which deals with the relevancy of evidence, then the Court shall not proceed to record the same. The Court while recording the evidence has to deal with any such objections raised by either of the parties, then and there and shall proceed to continue the recording of such evidence.
30. Turning to the instant case, the Inspector of Police-P.W.1 seeks to depose the acts done by him in such capacity before transmitting the record to the Deputy Commissioner of Police, Detective Department, for investigating into the matter. By such act, as aforediscussed, he cannot be relegated to a status of a complainant in the case. One shall not be oblivious of the fact that he did such act in the capacity of a Police Officer, who is always duty bound. He is competent, as aforediscussed, to arrest and effect seizure under the general provisions of the Code and is duty bound. There is nothing personal, which he is complaining so as to become a de facto complainant. Even if the information furnished by him constitutes the First Information Report, for the reason that a crime has been registered thereon, he cannot be the de facto complainant. The investigation conducted in this case includes the initial part of arrest and seizure effected by P.W.1. That part of the action taken by him in having arrested A-10 on a tip off and having seized the articles on the confession leading to discovery made by A-10 cannot cease to be the investigation for the mere reason that a crime has been registered on a letter addressed by him informing, inter alia, the action done by him and further action required to be taken. Furthermore, he has not carried the subsequent investigation after the registration of the crime on his report. For the said reasons, P.W.1 cannot be the de facto complainant under the circumstances, which are peculiar to this case.
31. Any confession caused by inducement, threat or promise and made to a person in authority is irrelevant under Section 24 of the Indian Evidence Act. No confession made to a Police Officer shall be proved as against a person accused of any offence. No confession made by any person while in the custody of the Police Officer shall be proved against him, unless it is made in the immediate presence of a Magistrate. Section 27, which is in the nature of a proviso, engrafts an exception to the other Sections, and saves that part of the confession made by an accused, which relates distinctly to the fact thereby discovered. Therefore, the statement of an accused distinctly leading to discovery is admissible and can be proved. The other statement, which contains the confessional part of the accused per se, is not admissible and shall have to be excluded. Keeping the law in view, as discussed by me supra, invoking Sections 5 and 27 of the Indian Evidence Act, the learned Metropolitan Sessions Judge can proceed to record the evidence of P.W.1. If a particular part of the evidence deposed by the witness appears to be not relevant, the learned Judge can exclude the same and he can proceed to record the evidence, which in his view is relevant.
32. The points framed for determination by the learned Metropolitan Sessions Judge are not at all germane for consideration at the stage at which they have been raised. It is appropriate in this regard to consider Sections 460 and 461 of the Code. If any irregularity is there either in the process of the conducting investigation, or in the process of conducting a trial, that irregularity per se will not go to the root of the matter. It is only those irregularities enumerated under Section 460 of the Code that vitiate the proceedings and the other irregularities enumerated under Section 461 of the Code will not vitiate the proceedings. Ultimately, it is a matter to be considered with reference to the other facts and circumstances of the case and to be decided at the end. The prosecution cannot be precluded from leading the evidence, which is otherwise relevant in the interests of justice. No evidence, which is legal and is germane for consideration in the view of the Court, shall be allowed to be shut. It shall be the endeavour of the Court on the other hand to see that relevant evidence is adduced, which unravels the truth and unfolds the case of the prosecution.
33. For the above reasons, the Criminal Revision Case is allowed and the impugned order is set aside. The learned Metropolitan Sessions Judge, Hyderabad, is directed to proceed with the recording of evidence of P.W.1 keeping in view the observations of this Court made supra in the Order.