Kerala High Court
'Niyamavedi' Rep/By Its Member K. ... vs Ramon Srivastava, I.P.S., Inspector ... on 13 January, 1995
Equivalent citations: 1995CRILJ1976
Author: B.N. Patnaik
Bench: B.N. Patnaik
JUDGMENT K. Sreedharan, J.
1. 'Niyamavedi', claiming itself to be a public spirited organisation consisting of lawyers, represented by one of its members Miss. K. Nandini, Advocate, moved this Court by filing O. P. 17367 of 1994 inter-alia praying for the issuance of a writ of mandamus directing the 4th respondent, the Director of Central Bureau of Investigation, New Delhi, to arrest first respondent -Raman Srivastava, I. P. S., Inspector General of Police, Southern Zone, Kerala State - for his alleged involvement in the I.S.R.O. espionage case. Petitioner also prayed for directing the State Government to place Sri. Raman Srivastava under suspension with immediate effect.
2. On the basis of the reports in the newspapers-Indian Express and Mathrubhoomi-petitioner contended that first respondent by utilising his official power had involved in the I.S.R.O. espionage case. According to the paper reports, Director of Central Bureau of Investigation and Joint Director of Intelligence Bureau interrogated one Fousiya in jail, who identified first respondent, who was popularly known in the spy racket as 'Brigadier Srivastava' from several others and that Sri. Vijayarama Rao, Director of Central Bureau of Investigation became convinced of the role of the first respondent in the espionage case on interrogation of the Maldivian women Mariam Rasheeda and Fousiya. But despite all these, according to the petitioner, conclusive prima-facie evidences, the Central Bureau of Investigation is reluctant to arrest the first respondent and remove him from service because of the high connections and contacts wielded by first respondent. It is the case of the petitioner that as per Section 41 of the Code of Criminal Procedure, a police officer should arrest any person who has been concerned with or against whom credible information has been received or a reasonable suspicion exists of his involvement in the commission of a cognizable offence. The failure to arrest first respondent by the Central Bureau of Investigation, it is alleged, is a naked violation of Section 41 of the Code of Criminal Procedure. On these averments petitioner moved O. P. 17367 of 1994.
3. When the petition came up for admission before learned Single Judge, he directed the Government Pleader to get instruction in the matter. On behalf of the State Government, learned Government Pleader placed before Court the instruction received by him from the Government. It stated :-
"The State Govt. make it clear that the Govt. have absolutely no interest in unduly defending or shielding any officer. The State Govt. have no material available before them at present which would point to the necessity of placing Sri. Srivastava under suspension. The Govt. can proceed in the matter only on a report from the C.B.I. which is investigating into the case". The learned Judge recorded the above stand taken by the Government and dismissed the Original Petition stating that it is for respondents 2 to 6 to act in accordance with law. Dissatisfied with the decision, the petitioner has come up in appeal.
4. This appeal came up for admission on 21 -12-1994. On that day, learned counsel representing the Central Bureau of Investigation submitted that he wanted to get instruction from the Central Bureau of Investigation. So, the case was posted to 28-12-1994. On that day also, the learned counsel was not in a position to give any detail regarding the involvement of the first respondent in the I.S.R.O. espionage case. So, we directed the Central Bureau of Investigation to make available the records connected with the questioning of the first respondent before Court. We also wanted the officer who questioned first respondent to file affidavit. Pursuant to this direction, Sri. R. S. Dhankhar, Deputy Superintendent of Police, who was in charge of the investigation of the case and Sri. Surinder Paul, another Deputy Superintendent of Police who questioned first respondent, filed affidavits. The affidavits filed by these officers were cryptic. They stated that no material has been revealed in the course of investigation to indicate any involvement of the first respondent in the case. They produced the entire Case Diary relating to the investigation of the so-called I.S.R.O. espionage case before Court. Since we were not satisfied with the affidavits filed by the above-mentioned officers, we directed Sri. Vijaya Rama Rao the Director of Central Bureau of Investigation, to peruse the entire records and to satisfy himself as to whether the investigation is proceeding in the proper line. His conclusions, on such examination, were to be submitted to Court in the form of an affidavit. Thereupon the Director filed affidavit dated January 7, 1995. In paragraph 9 of the said affidavit, it has been averred :-
"That the investigating officers have also come across several significant materials, which are not consistent with the allegation of espionage, casting a doubt on the initial apprehensions raised that the national interest had been compromised. Keeping in view the importance of the case, the investigating agency is in the process of investigating the case from all possible angles. It is, therefore, not possible to express any final opinion in the cast at this stage, which will be presented at the conclusion of investigation to the Court of competent jurisdiction".
In the affidavit regarding the involvement of the first respondent, it was averred that a serious doubt has arisen with regard to all the essential facts on the basis of which initial suspicion against him was created. The oral and documentary evidence collected during the investigation is found to be inconsistent with the allegations contained in the interrogation reports of the accused persons. The Director has cautiously stated that this opinion is only tentative. According to him, the first respondent was not identified by any concerned person.
5. The Additional Solicitor General Mr. K. T. S.. Tulsi, who represented the Director, Central Bureau of Investigation, raised the following points for our consideration :
(i) Petitioner in the Original Petition has no locus standi to move this petition.
(ii) This Court is not having any jurisdiction to interfere with the process of investigation undertaken by the Central Bureau of Investigation in the course of investigation.
(iii) This Court, in exercise of its exraordinary jurisdiction under Article 226 of the Constitution, cannot direct the investigating agency to include the first respondent as an accused in the case and to direct the Central Bureau of Investigation to arrest him.
We will proceed to deal with these arguments in detail.
6. The concept of public interest litigation has become an increasingly important one. As per the numerous decisions of the Supreme Court, this system has come to stay in our jurisprudence. As observed by S. Ratnavel Pandian, J. in Janata Dal v. N. S. Chowdhary, (1992) 4 SCC 305 : (1993 Cri LJ 600) (para 58) :-
"This rule (public interest litigation) on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of PIL and took its root firmly in the Indian judiciary and fully blossomed with fragrant smell in S. P. Gupta v. Union of India", (AIR 1982 SC 149).
Even though the public interest litigation has become part of our jurisprudence, only a member of the public having sufficient interest can maintain an action for judicial redress of public injury. A member of the public who approaches the Court should be acting in a bona fide manner, not for personal gain or private profit or for other oblique considerations. Only a person who can inspire confidence in Court among the public can approach the Court with a petition to champion the cause of the public. In S. P. Gupta v. Union of India, AIR 1982 SC 149, Bhagwati, J. (as His Lordship then was) observed (para 17) :--
"It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person' or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons".
The facts before us relate to the alleged commission of a crime, which affects the security of the nation. According to the petitioner, the investigation of that case is not proceeding in the correct line and the attempt is to shield and cover some person at the helm of the affairs of the State. In such a case, any Indian citizen can bring to the notice of this Court that the investigation is not proceeding in the proper line. When Courts are readily responding even to letters addressed to Court by persons acting pro bono publico, it cannot be said that the approach made to this Court by the petitioner is to be frowned at on the ground that petitioner has no locus standi. Ranganath Mishra, C. J. in Union Carbide Corporation v. Union of India, (1991) 4 SCC 584: (AIR 1992 SC 248), in his concurring judgment observed (at p. 262 of AIR):-
"I am prepared to assume, nay, concede, that public activists should also be permitted to espouse the cause of the poor citizens but there must be a limit set to such activity and nothing perhaps should be done which would affect the dignity of the Court and bring down the serviceability of the institution to the people at large. Those who are acquainted with jurisprudence and enjoy social privilege as men educated in law owe an obligation to the community of educating it properly and allowing the judicial process to continue unsoiled".
Thus it is clear that a person acting bona fide having sufficient interest in the proceeding of public interest litigation has locus standi and can approach the Court to seek the remedies. Tested in the light of the principles laid down by the Supreme Court in the various decisions relating to public interest litigations, we are to examine whether the petitioner, an advocate by profession, has got the right to move this Court.
7. On the basis of the paper reports produced along with the Original Petition, according to the petitioner, the involvement of the first respondent in the I.S.R.O. espionage case cannot be doubted. But, no action was being taken against the first respondent as a person involved in the case which affects the security of the nation. In such a situation, petitioner approached this Court. Can that be considered as illegal ?
8. It is common case that the case that is being investigated by the Central Bureau of Investigation is in respect of a matter involving the security of the country at large and the issues in the case are highly sensitive and delicate (vide affidavit filed by Surinder Paul, Deputy Superintendent of Police in support of CM.P. 9/1995). Petitioner was advancing the case based on reports published in two newspapers having wide circulation in the State. They are the Indian Express and the Mathrubhooini. The press has now assumed the role of the public educator. The purpose of the press is to advance the public interest by publishing facts and opinions. Such/publication of fact is highly essential for educating the public. Newspapers are purveyors of news and views having a bearing on the public administration. Such news items coming in the papers cannot be brushed aside as totally baseless and unacceptable. They must be regarded as having factual foundation. When the administration is found to be acting against these publications, a public spirited individual may feel agitated. If the incident relates to a situation which affects the very security of the nation, then the feeling of the citizen will be more intense. In such a situation he, according to us, can certainly approach the Court to have the entire matter examined. Such an approach is not to be thwarted at the threshold on the ground that he is a meddlesome interloper or by describing him as a busybody. If such a move is made, it will not be proper on the part of the Court to take any action on the basis of the reports published in the newspapers. But, that can be the basis for examining the entire details and facts relating to the case. This Court has in many such situations initiated proceedings based on news items published in newspapers. The position of a free press in a democracy has been recognised by the Supreme Court in Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515, in the following terms:-
"The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to government and other authorities. The authors of the articles which are published in newspapers have to be critical of the actions of government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. Governments naturally take recourse to suppress newspapers publishing such articles in different ways".
Consequently it was held that it is the primary duty of all national Courts to uphold the freedom of the press. Their Lordships went on to state that so long as the Supreme Court sits, newspaper men need not have the fear of their freedom being curtailed by unconstitutional means. Thus, the news items published in responsible newspapers can be aground for a public spirited person to move constitutional Courts requesting the Court to examine the correctness or otherwise of the facts brought out in the press. Viewed in that light, we are of the opinion that the petitioner is having the locus standi to approach this Court by filing this Original Petition primarily relying on the news items published in the newspapers. Consequently this Court is bound to examine the records of the investigating machinery to ascertain whether there is any iota of truth in the news items published by the media. This exercise is to be resorted to by this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution to get at the truth. This is more so in a situation where the security of the nation itself is at slake. Therefore we are of the firm view that the records now produced before Court by the various authorities under the Central Government are to be (examined by us.
9. In State of W. B. v. Sampat Lal, AIR 1985 SC 195 : (1985 Cri LJ 516), the Supreme Court considered the propriety of the order passed by the High Court of Calcutta directing the Deputy Inspector General. Central Bureau of Investigation, to cause an enquiry to be made as to how the two boys met with their death, which was being investigated by the State police. The Calcutta High Court gave the direction without affording reasonable opportunity to the State Government to put forth their defence of the investigation conducted by the Stale police. Dealing with this issue, Their Lordships observed (para 14 at p. 201 of AIR):-
"We are of the view that Borooah, J. should have issued notice to the State Government, afforded a reasonable opportunity to it and its officers who were already in seisin of the investigation to make a report in regard to the action taken by them and after making an overall judicial assessment of the situation, the need for appointing a Special Officer should have been considered".
This means that even while investigation into the case is in progress, the High Court has got the power to examine the records, make a judicial assessment of the situation and then give necessary direction. This is more clear from the following observation made by Their Lordships (para 16, at p. 201 of AIR) "It may be that in a given case the Court on being prima facie satisfied from circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may resasonably be presumed or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially might reasonably consider supplementing the procedure..................."
Petitioner in this case has virtually asked this Court to exercise the jurisdiction to examine whether the investigation is fair and impartial.
10. Respondents 4 and 6 produced the records as ordered by this Court. On behalf of second respondent, the Special Secretary, Ministry of Home Affairs, Government of India filed affidavit dated 11-1-1995 claiming privilege from disclosure of the contents of the documents in public interest and the interest of the State. As per the affidavit, records relate to matters connected with and having a bearing in the security of the nation as well as friendly relations with various foreign countries. Consequently, according to him, these documents are privileged from disclosure under Sections 123 and 124 of the Evidence Act. The law on privilege from disclosure has been dealt with by the Supreme Court in S. P. Gupta v. Union of India, AIR 1982 SC 149. We may refer to the following observation at page 238 :-
"The claim put forward by the learned Solicitor General on behalf of the Union of India is that these documents are entitled to immunity from disclosure because they belong to a class of documents which it would be against national interest or the interest of the judiciary to disclose. It is settled law, and it was so clearly recognised in Raj Narain' case, AIR 1975 SC 865 (supra) that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognisses that there may be classes of documents which in the public interest should be immune from disclosure. There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure. The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong. This class includes cabinet minutes, minutes of discussions between heads of departments, high level inter-departmental communications and dispatches from ambassadors abroad (vide; Conway v. Rimmer, (1968) AC 910 at pp. 952, 973, 979, 987 and 993 and Reg v. Lewes J. K. Ex parte Home Secy., (1973) AC 388 at p. 412). Papers brought into existence for the purpose of preparing a submission to cabinet vide Commonwealth Lanyon Property Ltd. v. Commonwealth, 129 LR 650 and indeed any documents which relate to the framing of government policy at a high level (vide : Re Grosvenor Hotel, London). It would be seen that according to the decision in Sodhi Sukhdev Singh's case, AIR 1961 SC 493 (supra), this class 2may also extend to "notes and minutes made by the respective officers on the relevant files, information expressed orreports made and gist of official decisions recheed" in the course of determination of quest ions of policy. Lord Reid Conway v. Rimmer (supra) at page 952 proceeded also to include in the class " all documents concerned with policy-making within departments including, it may be minutes and the like by quite junior officials and correspondence with outside bodies".
The issue relating to privilege was again considered by the Supreme Court in R.K. Jain v. Union of India, AIR 1993 SC 1769. After analysing the entire legal aspect, K. Ramaswamy, J. summarised the legal position as (at p. 1781 of AIR) :-
Cabinet papers, Minutes of discussion by heads of departments; high level documents relating to the inner working of the government machine and all papers concerned with the government policies belong to a class documents which in the public interest they or contents thereof must be protected against disclosure".
In the instant case, by order dated 6-1-1995, we ordered the production of all materials collected by the Director, Central Intelligence Bureau and his subordinates in connection with I.S.R.O. espionage case. It was also ordered that the report filed by the Central Intelligence Bureau to the Central Government and all supporting materials, including the material objects, if any, should be made available to Court. Pursuant thereto, all documents and Video Cassettes have been produced. According to us, the documents and the Cassettes now produced before us cannot fall in any of the class documents mentioned by the Supreme Court in the decisions referred to earlier. We are concerned with the documents and reports submitted by the Intelligence Bureau and the Central Bureau of Investigation to the Government and the materials collected by them in the course of the investigation of the I.S.R.O. espionage case. In this view of the matter, we feel that the privilege claimed by the Special Secretary, Ministry of Home Affairs, Government of India is not sustainable and we overrule the same. On our examination of the records, we could not come across any material which has even remotely any connections with the situation mentioned in the affidavit filed by the Special Secretary.
11. As stated earlier, the materials collected by the investigating machinery and the Intelligence Bureau can be perused by this Court to see whether the investigation proceeds fairly and impartially. This is more so when it is seen that the Central Bureau of Investigation has filed charges against some of the arrested persons only for having been in possession of property disproportionate to his known source of income. Till date, the Central Bureau of Investigation has not come forward with any charge against the accused for any other offence, which has, as alleged by all, the effect of affecting the security of the nation.
12. Crime Branch of Kerala Police interrogated the accused who were arrested in connection with the case known as "I.S.R.O. espionage case". They were questioned in Crime 246/1994 of Vanchiyoor Police Station. The case was subsequently entrusted with the Central Bureau of Investigation for further investigation. When the case was transferred to the Central Bureau of Investigation, the Deputy Inspector General of Police, Crime Investigation, made a summary of the result of the investigation conducted by him and his subordinates. He came to the conclusion that there is no clear proof regarding the identity of 'Brigadier Sri vastava', who was allegedly present during the "deals" at Madras in January, 1994 and at Indiranagar, Bangalore in September, 1994. In the said report, he wanted further investigation to proceed to find the allegation that Sashikumar contacted one journalist, N.R.S. Babu, and leaked out information about I. G. Sri vastava. Identity of the "Brigadier", also known as "Coatwalla", who took part in the meetings at Madras Bangalore, was also directed to be enquired into. On going through the files now made available to us by the Central Bureau of Investigation, it is seen that they did not make any further enquiry into the aspects suggested by Mr. Siby Mathew. The interrogation report dated 25-11 -1994 of Sashikumar, the Eingineer, clearly establishes the involvement of I. G. Raman Srivastava in the deal. Huge sums of money, even in foreign currency, is seen to have changed hands through Raman Srivastava. The Statement of Sashikumar was seen fully corroborated by Chandrasekharan, who was also questioned on 25-11 -1994 and 28-11-1994. Chandrasekharan stated that Srivastava, I. G. plays a clear role in the entire operations. From the statement of Chandrasekharan, it is clear that Raman Srivastava was known as "Brigadier" as well. The arrangement was that Raman Srivastava, I. G. would be made as the Managing Director of Cavalier Ltd., for which the initial investment was around Rs. 60 to 70 lakhs. Mariam Rasheeda and Fousiya have also corroborated Sashikumar and Chandrasekharan on the involvement of Raman Srivastava in the entire transactions.
13. Sri. R. S. Dhankhar, while making record of investigation in the Case Diary bearing serial No. 6, categorically stated that Fousiya Hassan, Mariam Rasheeda, Sashikumaran and Chandrasekharan gave statements implicating Raman Srivastava alias "Brigadier" in the case. It seems that these accused were questioned subsequently by Mr. R. S. Dhankhar. At the time of the subsequent questioning, it appears that they resiled from their earlier statements and tried to exonerate Mr. Raman Srivastava. The reason for the change in their attitude is that when they were questioned during police custody, they were threatened and harassed and pressurised to make the above statement. From the statement so recorded of Fousiya Hassan, it is seen that police officers even told her that her friend Mariam Rasheedahad admitted the entire transaction and that in case she did not make the statement corroborating Mariam Rasheeda, her daughter Jila Handhi would also be arrested and raped. Accordingly it is seen that she stated to Mr. Dhankhar that under the above threat she made the earlier statement which is attributed to her. Chandrasekharan retracted from his earlier statement when he was questioned by D.S.P. Jogendar Singh.
14. The correctness or otherwise of the allegation made by these accused regarding the threat of torture by the Kerala Police when they were questioned at the first instance is not seen to have been examined or verified by the officers of the Central Bureau of Investigation. If in fact the police officers used such third-degree measures to get the statements from these accused, it would have been of serious consequence and such officers should have been taken to task by the State Government on the report of the Central Bureau of Investigation. So far, no such report of the alleged third-degree measures resorted to by the police has been reported to the State Government.
15. When Fousiya, Chandrasekharan and Sashikumar were questioned by the Intelligence Bureau, the same was recorded in Video Cassettes. The three Video Cassettes produced before Court by the Intelligence Bureau were viewed by us by plying it in a Video Cassette Player, belonging to this Court. From that, it is crystal clear that these three accused gave answers to the questions without any fear of torture. They were seen in very jovial and calm mood, free from any stress or strain. So, the answers given by these accused at the time of the questioning can never be considered as the result of any torture by the police or for that matter of any authority. So, the statement given by these accused when they were questioned by the Central Bureau of Investigation at a later stage that they were subjected to torture by police has no substance and it has only to be rejected.
16. The Central Bureau of Investigation questioned Raman Srivaslava at Malligai. At that time, he had flatly denied any connection whatsoever with this case. After such questioning, Sri. Dhankhar reported that the name of Raman Srivastava has been dragged into as a result of some internal politics of Kerala Police. We tried to find out the alleged internal politics of Kerala Police from files now made available to us, but without any success. So, on the basis of the documents now made available, we are not in a position to approve the conclusion arrived at by the Central Bureau of Investigation that Raman Srivastava was implicated in the case by other accused for ulterior motives. Acting on the basis of the retracted statements given by the accused, C.B.I. is seen to have collected certain materials, the authenticity of which has to be scrutinised. We are not in a position to act on them without further corroboration.
17. Reports sent by the Intelligence Bureau to the Government, which were produced before us, were perused. Those reports do not contain any vital information which can legally be kept away from Court. The report would show that although both Mariam Rasheeda and Fousiya Hassan had repeatedly mentioned the name of Raman Sri vastava, I. G., Trivandrum, there is some doubt of correct photo identification. The two ladies maintained that the name of Raman Srivastava was mentioned to them by Chandrasekharan. In a subsequent report dated 1 -12-1994, they reported that Raman Srivastava had in fact emerged in the case as a most important member of the inner group. As per that report, nine lakhs U. S. Dollars in one transaction (90 bundles of 100 Dollars notes) changed hands in the presence of Chandrasekharan and Raman Srivastava. The records now made available by Intelligence Bureau further show that Raman Srivastava is also known as "Brigadier" and "Coatwalla" (since he wears a coat all the time). The Intelligence Bureau is seen to have suggested that the Director General of Police has to be advised immediately to bring Raman Srivastava, I. G. of Police, Kerala in the ambit of the case. They asked for sanction being accorded by the Government to take Raman Srivastava into custody, as he is a member of the Indian Police Service. The reports of Intelligence Bureau, which has it own investigating machinery, in unmistakable terms found the involvement of Raman Srivastava in the case. That finding is seen to have been ignored by the Central Bureau of Investigation primarily on the basis of the alleged retractions made by the accused. This approach made by the officers of the Central Bureau of Investigation cannot be approved by us. The Director of Central Bureau of Investigation while filing the affidavit dated 7-1-1995 is seen to have ignored the above aspects of the case. We direct him to re-examine the issue with more caution and direct his officers to proceed with the investigation in the proper line. Investigating agency, namely the Central Bureau of Investigation in this case, should approach the case in an unbiased manner. This is especially so when Deputy Superintendent of Police, C.B.I. himself stated before this Court that the case is in respect of a matter involving the security of the country at large and the issues involved in the case are highly sensitive and delicate. When the security of the nation itself is at stake, the investigating agency should act in a more efficient and vigilant manner, without any preconceived notions. Such an approach to the case, we are afraid, has not been made by the Central Bureau of Investigation till this time. However, we refrain from pursuing the matter any further.
18. Chapter XII of the Code of Criminal Procedure deals with the information to the police and their powers to investigate. Section 156 of the Code relates to the police officers power to investigate cognizable cases. Section 156(1) of the Code of Criminal Procedure empowers an officer in charge of police station to investigate any cognizable case without the order of a Magistrate. Sub-Section (2) of Section 156 lays down 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, while Sub-section (3) gives power to any Magistrate empowered under Section 190 of the Code to order such an investigation in any case as mentioned in sub-section (1). Section 157 requires that, whenever such information is received by an officer in charge of a police station that he has reason to suspect the commission of an offence which he is empowered to investigate under Section 156, he must forthwith send a report of it to the Magistrate empowered to take cognizance of such an offence upon a police report and, at the same time, he must either proceed in person, or depute one of his subordinate officers to proceed, to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts. The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature. The second clause of the proviso permits the officer in charge of a police station not to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation. The report to be sent to the Magistrate under Sub-section (1) of Section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report his reasons for not fully complying with the requirements of sub-section (1) and, in addition, in cases where he decides not to investigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to be investigated. These provisions are followed by Section 159 which is as follows:-
"159. Such Magistrate, on receiving such report, may direct an investigation or if the thinks lit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code".
Under Section 159, the only power, which the Magistrate can exercise on receiving a report from the officer in charge of a police station, is to make an order in those cases which are covered by the proviso to Sub-section (1) of Section 157, viz., cases in which the officer in charge of the police station does not proceed to investigate the case. From this it is evident that till the police officer files the report, the Court cannot interfere with the proces of investigation. The position is settled right from the decision in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 : (1945 (46) Cri LJ 413), by the Privy Council. Their Lordships examined the question of the inherent power of the High Court in interfering with the statutory investigation of the police and said :-
"Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duty acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal Procedure Code, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake the investigation".
This position has been reiterated by the Supreme Court in subsequent decisions (vide Janata Dal v. H. S. Chowdhary, (1992) 4 SCC 305 : (1993 Cri LJ 600). Therefore, no Court can and should give the investigating officer any direction on any matter relating to the case while the investigation is in progress except in cases where the fundamental rights of anyone are being violated by the investigating officer. The legal position being such, we arc of the firm conviction that none of the prayers made by the petitioner in the Original Petition can be granted at this stage.
19. Mr. Tulsi, the learned Additional Solicitor General, representing the Central Bureau of Investigation, highlighted the impropriety of the prayer made by the petitioner in the O. P. Petitioner wants the investigating machinery to implicate the first respondent as an accused in the espionage case and to arrest him. This prayer is made on the basis of the news items published by Indian Express and Mathrubhoomi. Since the case is one slated to be affecting the security of the nation, according to Mr. Tulsi, the Court may be justified in examining the records. But, if such a prayer is made by anyone on the basis of paper reports to get another arrested or implicated in an ordinary criminal case, can the Court direct the investigating officer to include the named person as an accused in the case? On this aspect, we are having no doubt in our mind that this Court in exercise of the powers under Article 226 of the Constitution or for that matter no Court has power to direct the investigating officer to include a person as an accused in the case while the investigation is in progress. Before the police files the final report before Court, no Court can direct the investigating agency to implicate one as an accused and arrest him.
In view of what has been stated above, we find no ground to interfere with the judgment rendered by the learned Single Judge. The appeal is dismissed.