Karnataka High Court
State By Superintendent Of Police, ... vs Thammaiah And Others on 3 August, 1998
Equivalent citations: 1999CRILJ53, 2000(3)KARLJ293
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. This petition is filed by the Superintendent of Police, COD, Bangalore, questioning the order passed by the learned Magistrate in directing the petitioners to investigate and report the matter under Section 156(3) of the Cr. P.C.
2. Heard the learned State Public Prosecutor appearing for the petitioner and the learned Counsel for the respondent 3.
3. The learned State Public Prosecutor has vehemently argued that COD is not a police station and the learned Magistrate has no jurisdiction to refer the matter under Section 156(3) of the Cr. P.C. directing the COD to investigate into the matter in a private complaint. He also submitted that under Section 156(3) of the Cr. P.C. the regular police station which comes within the jurisdiction of the Magistrate only should be directed to investigate into the offence. According to him, COD can take up investigation only on the basis of the matter referred to by the Government. Even if the Police Officer of any police station is not investigating the matter for any reason, then the Magistrate has to refer it to the superior officer under whose administrative control the said police station comes. He has also taken me through the clauses of the Notification/Standing Order No. 630 dated 21-4-1994 in regard to the establishment of CID which is now called the COD. If any investigation has to be taken up, it has to be done by the COD as per the direction of the Director General of Police on considering such application if any. Therefore, he submitted that the impugned order is liable to be set aside.
4. Per contra, the learned Counsel appearing for the complainant submitted that the Magistrate has jurisdiction, power and authority over the COD also to direct the concerned to investigate into the matter and submit the report as provided under Section 156(3) of the Cr. P.C. He also submitted that the impugned order came to be passed in view of the involvement of politicians in connection with the land owned by the complainant. If the Magistrate has directed the regular police to investigate into the matter, truth would not come out because the police would be under the influence of the politician who is now the Minister. Prom the argument, the only question that arises for consideration is as to whether the Magistrate has power to direct the COD to investigate into the case and submit a report under Section 156(3) of the Cr. P.C. in a private complaint filed under Section 200 of the Cr. P.C.
5. He also submitted that it is held by this Court in a decision in Mushtaq Ahmed v State of Karnataka and Others.-
"A Superintendent of Police or a Deputy Superintendent of Police who is appointed on deputation to the State Vigilance Commission, as Deputy Commissioner, Investigation, whose office is declared to be a police station under Section 2(s) of the Cr. P.C. has authority to undertake investigation of an offence under Section 5 of the Prevention of Corruption Act, against a civil servant, under the Cr. P.C. read with Section 5-A of the Prevention of Corruption Act, and file a charge-sheet before the Special Judge under the Act.
On the declaration under Section 2(s) of the Cr. P.C. of the offices of the officers on deputation as police station, the office of each of the officers became a police station and each of the officers became an officer in charge of the police station within Section 2(k) of the Cr. P.C. The Assistant Superintendent of Police and the Deputy Superintendent of Police appointed to assist the Vigilance Commission do not cease to be Police Officers because they are sent only on deputation.
Further, under Section 6 of the Karnataka Police Act, they continue to be under the control of the State Government which has ultimate control over the police force of the State.
Further Section 36 of the Cr. P.C. specially empowers an Superintendent of Police or a Deputy Superintendent of Police who are superior in rank to an officer in charge of a police station, to exercise all powers of an officer in charge of a police station - State of Bihar v J.A.C. Saldanna.
Moreover, the two officers being of the ranks of Superintendent of Police and Deputy Superintendent of Police were also empowered to undertake investigation under Section 5-A, Prevention of Corruption Act.
Rules 3 and 5 of the Vigilance Commission Rules have nothing to do with the exercise of powers under the Cr. P.C. The Vigilance Commission Rules, Rules 3 and 5 are only supplementary to the general rules in Karnataka Civil Servants (CCA) Rules, 1957".
6. The learned State Public Prosecutor at the very outset submitted that the High Court and the Hon'ble Supreme Court have all the power to direct any police authority to conduct the investigation including the CBI, COD or any Police Officers in the State but his argument is only to the effect that the Magistrate has power under Section 156(3) of the Cr.
P.C. only to direct Police Officer who is working in the police station which comes within his jurisdiction.
7. In Kashmiri Devi v Delhi Administration and Others, the Hon'ble Supreme Court directed the Magistrate to direct the CBI to investigate the case under Section 173(8) of the Cr. P.C. and not under Section 156(3). In that case, the writ petition was filed and as the High Court failed to exercise its jurisdiction, wherein it was reported that Kashmiri Devi's husband was done to death by the Police Officer in the police station and made it to appear to register a case initially under Section 302 of the IPC, but later manipulated it into Section 304 of the IPC. Under the circumstances, the Hon'ble Supreme Court passed that order taking into consideration the nature of the offence, the manner in which it was committed in the police station when the deceased was in custody and also the failure on the part of the regular police to take action. Section 156 can be invoked before any investigation is commenced. Section 173(8) of the Cr. P.C. provides for further investigation of the case. In this case, as rightly pointed out by the learned State Public Prosecutor for the petitioner, the learned Magistrate directed the COD to investigate into the matter. Therefore, he submitted that the COD is not a police station where a crime can be registered and FIR can be submitted to the Court as it is done by the regular police. In support of his argument, he also has drawn my attention to Section 2(o) and 2(s) of the Cr. P.C. which reads:
"(o) 'officer in charge of a police station' includes, when the officer 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;
(s) 'police station' means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf".
To further substantiate the argument, he also has drawn my attention to the proceedings of the Government of Karnataka in regard to the establishment of Corps of Detectives in the Criminal Investigation Department vide Order No. HD 229 PEG 73, Bangalore District, 15th April, 1974. Subsequently, the Standing Order No. 630 was issued on 21-4-1994. From the preamble of that standing order, it is clear that the Government felt that it is necessary to establish Corps of Detectives in the Criminal Investigation Department for investigating cases involving economic and financial offences and major crimes which would require special knowledge of both law and investigation. In order to achieve maximum results in the detection of crimes and with a view also to inspire public confidence in the Police Administration, it has been decided to build up a Corps of Detectives in the State CID. It also provides eight squads with the Executive Police Staff noted against each will be known as the 'Corps of Detectives' working under the Deputy Inspector General of Police, CID, Bangalore. It was also subject to the general control of the Inspector General, the control of the personnel and their work rests with the Deputy Inspector General of Police, CID. Except on ceremonial occasions, the officers and men of the CID should not wear uniform and should not use Police salute in greeting superiors and others. Staff pattern attached to this is also mentioned. With the establishment of the Corps of Detectives, the FPB, the Prohibition Intelligence Branch both permanent and temporary, the CIB and the Food Cell, CB-II, CID is allowed to continue as heretofore with the existing staff. The permanent investigation staff of CID comprising of one SP, 2 DSPs, 14 PIs, 85 Is, 12 HCs and PCs. According to the scheme application for taking over investigation by the CID or for rendering assistance should be made to the Deputy Inspector General of Police, CID. Without the orders of the Inspector General of Police, no enquiry should be undertaken by the Corps of Detectives. In all cases where a request by the Superintendent is refused, the Deputy Inspector General of Police, CID should inform the Inspector General of Police. It also stipulates the classes of crimes to be investigated by the CID as enumerated in Order 1729 of Police Manual Volume II as follows:
(a) Currency note forgery cases;
(b) Cases of counterfeiting of coins;
(c) Cases of professional poisoning;
(d) Theft of Government arms and ammunition and illicit trade in arms;
(e) Important cases in which foreigners are concerned (including cases of International criminals and traffic in women by foreigners);
(f) Cases of dacoity or house breaking of a peculiar nature which indicate the work of an adept gang not previously noticed or accounted for by the local police;
(g) Cases of fraud, theft or cheating of a peculiar nature which affect more than one district;
(h) Cases of smuggling of opium, cocaine and other narcotics of an inter-State nature;
(i) Important conspiracy cases whose ramifications extend to several districts;
(j) Gang cases;
(k) Pornography;
(l) Any serious crime which appears to have a political motive, including all offences connected with arms and explosives which are suspected to be of a political nature;
(m) Cases of such a complicated nature as, in the opinion of the IGP or the DIGP or the district authorities, call for investigation by an officer of the Corps of Detectives.
The distribution of the classes of crimes among the 8 squads have been mentioned. They are Homicide Squad, Burglary Squad, Fraud Squad, Counterfeit Currency Squad, Illicit Arms and Explosives Squad, Vice-Squad, Anti-Smuggling Squad and Special Enquiries Squad.
8. According to the object of the proceedings in the establishment of Corps of Detectives in criminal investigations, it is stated thus:
"A Committee of Senior Police Officers was appointed to examine this matter in all its details. The Committee has observed that an expansion of the Criminal Investigation Department along the existing lines will not meet the needs of the situation. With the opening up of the interior and improved communication facilities and with the development of science and technology, criminals have acquired new and sophisticated methods for perpetrating crimes and these methods were unknown to the criminals of an earlier era. Further, white collar crimes are being committed more and more by intelligent cheats who adopt novel and scientific methods to defy detection. Again, counterfeit currency cases and cases relating to thefts of idols and antiques have also come to notice. Offences relating to persons such as abduction of girls for immoral purposes, maiming of children for begging are being committed. With the increase in international tourists traffic, various other types of crimes are also likely to be imported into India. In this race, the criminals should not be allowed to get better of the police, the latter must keep themselves adequately equipped and trained to meet the challenge".
So from a reading of the proceedings, it is abundantly clear that the COD is a special branch established for special purposes to meet the type of crimes enumerated above.
9. It is not a police station as defined under Section 2(s) or no Police Officer is in charge of the police station according to Section 2(o) of the Cr. P.C. The departments would take up investigation as per the order of the DIG only on the request of the Superintendent of Police or the Government, depending on the nature of offence as the case may be. It is not open to lodge information with the COD to investigate the case. When it is not a police station, it cannot register a crime and submit a report to the Court; on the other hand, it can investigate the offence where the crime is registered by any police station and as requested by the Superintendent of Police, depending on the nature of the offence. Such being the case, without any reason if the Courts below were to direct the COD to conduct the investigation, which could normally be done by the regular police, would hamper the investigation of the COD where their service is required. It is also reported that large number of Courts are directing the COD without there being any reason whatsoever to investigate under Section 156(3) of the Cr. P.C. It is also noticed that the offences for which the Magistrate direct them to investigate by the COD also are not the offences which come under the scheme to be specially investigated. Ordinary cases wherein the dispute between two individuals or group of individuals if referred to the COD and if they are to conduct the investigation, their valuable service and time would be lost. Under those circumstances, as rightly pointed out by the learned State Public Prosecutor, the order passed by the learned Magistrate directing the COD to investigate in this particular case is beyond its jurisdiction is liable to be set aside. According to the scheme also, it is only where the Superintendent of Police feels that the investigation of a particular case is very complicated and is required to be conducted by the COD manned by efficient officers, specially selected and trained for the purposes, requests the DIG to take over the investigation, would only indicate that ordinarily the COD cannot take up the investigation. When such being the scheme in all the cases if the Court below were to direct the CID to conduct investigation, without any valid reasons, could frustrate the very purpose of establishing the Corps of Detectives.
10. The learned State Public Prosecutor submitted that the power of Magistrate is very restricted under Section 156 of the Cr. P.C. which reads:
"Police officer's 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 be 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".
He also submitted that sub-section (3) of Section 156 shall be read in conjunction with sub-section (1) of Section 156 that a Magistrate empowered under Section 190 may order such investigation only to officer in charge of the police station having jurisdiction over the local area within the limits of such station would have power to enquire into and try under the provisions of Chapter XIII. From a conjoint reading of this provision, it is abundantly clear that the Magistrate can only direct the Police Officer in charge of the police station which is within the jurisdiction of the Court and not any other officer in charge of the police station. This particular question also was considered by the Kerala High Court in a decision in the case of State of Kerala v Kolakkacan Moosa Haji and Others . In that case a complaint was filed by the 1st respondent therein against the police personnel among whom are included a Deputy Inspector General of Police, the Assistant Superintendent of Police, Deputy Superintendent of Police, a Circle Inspector, 2 Sub-Inspectors and two constables mentioning the incident which happened at about 3.00 P.M. on 15-12-1991 in which a teen aged girl Sirajunneesa sustained bullet injuries in a police firing and died. It was also alleged that the firing was deliberately ordered by the DIG without any justification and the said illegal order was carried out by the other Police Officers arraigned in the complaint: Offences alleged against them included murder. The learned Magistrate forwarded the complaint to the Inspector General of Police (Crimes) for investigation under Section 156(3) of the Code, in view of the fact that senior Police Officers including DIG of Police were arraigned as accused persons and he felt that if the investigation is done by the subordinate officers of the Police Department, the investigation would not be proper. Even though this reason was given by the learned Magistrate to refer it to the Inspector General of Police, the High Court on being questioned by the State held as follows:
"Government in exercise of their executive powers can authorise any superior officer to investigate a case and such directions can be issued by the higher officer to his subordinate officer in the Police Department. When any Police Officer referred to in Section 36 of the Code conducts the investigation, that cannot be called in question as without authority. In appropriate cases the High Court can issue directions under Article 226 of the Constitution for causing investigation to be made by such officers because such officers have the power to investigate. But such power of the Government or the higher officer in the department is quite different from the scope contained in Section 156(3) of the Cr. P.C. There is no provision in the Code or in any other statute which confers power on a Magistrate to direct any officer other than an officer in charge of a police station to conduct investigation".
11. The Gujarat High Court in 1995 Cri. L.J. 980 (Guj), held that under Section 156(3) the subordinate Court cannot entrust investigation to any authority except referred to under Section 156. It also further held that a private complaint was filed against a group of accused persons alleging that they were engaged in bogus and benami transactions and corrupt practices. However, the Magistrate directed the CBI to investigate into the matter under Section 156(3) of the Cr. P.C. It was held to be illegal and improper by the High Court of Gujarat. I fully agree with the reasoning of both High Courts in the decision cited above.
12. The learned Counsel for the petitioners also filed a memo with a news item appearing in the "Times of India', Bangalore, dated 17-7-1998 where it appears that the Division Bench of the Delhi High Court has held that the Magistrate has power under the Criminal Procedure Code to direct the CBI to make investigations and that in face of such an order the question of obtaining sanction under DSPEA does not arise. From a reading of this news item, it cannot be made out as to whether the order is passed under Section 156(3) of the Cr. P.C. or any other provision of law. Be that as it may, the fact remains from the reading of Section 156 of the Cr. P.C. it is clear that the Magistrate has no power to direct any other authority to investigate into the matter except the Police Officer in charge of the police station which is within his jurisdiction. So from the above discussion and also in view of the proceedings of the Government referred to above, it is abundantly clear that the COD has jurisdiction over the entire Karnataka State. Even if the Superintendent were to approach the DIG he has power to reject his request. Under those circumstances, it is not open to the Magistrate to direct the COD to conduct the investigation.
13. In Mushtaq Ahmed's case, referred to above, the office of the Assistant Commissioner, investigation attached to Vigilance Commissioner was declared to be a police station under Section 2(s) of the Cr. P.C. Under those circumstances, this Court has held that Assistant Commissioner, Investigation, whose office is declared to be a police station under Section 2(s) of the Cr. P.C. has authority to undertake investigation of an offence under Section 5 of the Prevention of Corruption Act against a civil servant, under the Cr. P.C. read with Section 5-A of the Act, and file a charge-sheet before the Special Judge under the Act. Therefore, that decision cannot be made applicable to the case on hand.
14. In this particular case, the dispute is between two parties in respect of an immoveable property where the complainant claims that she is in lawful possession of the property but the respondent is trying to trespass, etc. The allegations in the complaint also do not come within the purview of any of the offences enumerated in the standing order referred to above. On that ground itself, the order of the learned Magistrate is liable to be set aside. In view of this, the allegation of the respondent that a minister is involved in this case and if the matter is entrusted to the regular police, he would use his influence over them and the investigation would not be proper, etc., is nothing but imagination. Even otherwise also as indicated above, the Police Officers working in the COD are drafted from the regular police department and they are also to be repatriated to their parental department. If the said person intends to use his influence he can as well exercise it over those Police Officers working in COD. Therefore, viewed from any angle, I find that the order which is impugned in this petition is unsustainable.
15. For the foregoing reasons, I hold that the Magistrate has power under Section 156(3) of the Cr. P.C. only to direct the Police Officer in charge of the police station which comes under his jurisdiction to investigate into the case and to report. He has neither the power nor authority nor jurisdiction to direct any Police Officer outside his jurisdiction including that of COD or CBI. Accordingly, the point is answered.
16. In the result therefore, I proceed to pass the following:
ORDER The petition is allowed. The impugned order of the learned Magistrate directing the COD to investigate into the matter is set aside. The learned Magistrate is directed to take up the complaint again and adopt such steps as he deems necessary according to law and in the light of the observations made above.