Andhra HC (Pre-Telangana)
T. Srinivasa Rao vs State And Koroor Vysya Bank on 21 July, 1998
Equivalent citations: 1998(4)ALD599, 1998(2)ALD(CRI)248
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. This is an application filed under Section 482 of the Code of Criminal Procedure, 1973,. (for short 'the Code') to quash the order dated 30-4-1998 passed by the learned Chief Metropolitan Magistrate, Visakhapatnam. The petitioners herein are A1 and A5 in Cr.No.123/98 on the file of III Town Law and Order Police 'station, Visakhapatnam City. The second respondent herein is the defacto complainant.
2. The second respondent herein filed a private complaint against the petitioners and three others in the Court of the learned Chief Metropolitan Magistrate, Visakhapatnam under Sections 120B, 420, 406, 468, 471 and 477-A IPC. It may not be really necessary to go into the details of the allegations made against the petitioners herein. Suffice it to notice that A1 to A4 opened a current account in the second respondent-Bank. It is alleged that on the request of A1 to A4 'Local Cheques Purchase' facilities were granted initially to the respective concerns. They used to present the local cheques and requested the Bank to discount the same to enable them to withdraw the amounts on the same day, after deducting the commission. It is alleged that A1 to A4 jointly and severally made the Bank to purchase many cheques and after getting the cheques discounted by the Bank they used to take Pay Orders in favour of their Constituents/persons. The particulars of the cheques that were discounted by the Bank on various dates are detailed in the annexure enclosed with the complaint It is further alleged that the accused, made the Bank to believe that they are credit worthy people and requested the Bank to present the cheques which were returned subsequently. On several occasions, upon their request, the cheques were represented; but the same were returned unrealised. Several assurances were given by the accused that they will make good the payment to the Bank the amounts which they have taken by way of Pay Orders after the cheques were discounted and requested the Bank to permit them to discount for further cheques and also drawings against clearing in order to repay the entire amount. The Bank believing the statement of the accused, discounted the cheques and allowed drawings against clearing.
3. Later the Bank management came to know that A1 to A4 have mislead the Bank with their false statements and made the Bank to part with their money. All the accused have colluded with each other in indulging in various criminal acts. After thorough verification, the Bank came to know that the accused have jointly and severally done the acts of (i) cheating and criminal conspiracy, (ii) making unlawful gain (iii) committing criminal breach of trust and (iv) committing fraud and cheating. It is alleged that in that process a total sum of Rs.2,67,86, 137.00 (Rs. Two crores, sixty seven lakhs eighty six thousand and one hundred and thirty seven only) have been taken by A1 to A4 by fraudulent means. Reference to other allegations made in the complaint may not be necessary for the purpose of disposal of this application.
4. The learned Chief Metropolitan Magistrate, Visakhapatnam, by order dated 30-4-1998 forwarded the complaint to the Assistant Commissioner of Police, Visakhapatnam, under Section 156(3) of the Code for investigation. The Assistant Commissioner of Police, Law and Order (North), Visakhapatnam City, having received the complaint with direction, registered the same as Cr.No.123/98 under Sections 120(b), 420, 406, 468, 471, 477(a) IPC on the file of III Town Law and Order PS. Visakhapatnam City. The said order is now under challenge.
5. According to the petitioners, the order of the learned Chief Metropolitan Magistrate, Visakhapatnam, forwarding the complaint to the Assistant Commissioner of Police, Visakhapatnam, is without jurisdiction. Under those circumstances, the petitioners pray to quash the order dated 304-1998 of the learned Chief Metropolitan Magistrate, Visakhapatnam.
6. Sri C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the petitioners submits that the order passed by the learned Chief Metropolitan Magistrate suffers from lack of jurisdiction. It is urged by the learned senior Counsel that under Section 156 of the Code, a Magistrate is empowered to forward the complaint to the Officer-in-charge of a Police Station for investigation and the Court has no jurisdiction whatsoever to forward the complaint to any other police officer. There is no provision in the Code of Criminal Procedure conferring such a power on any Magistrate to direct any Officer other than an Officer-in-charge of a Police Station to conduct investigation.
7. Sri E. Ella Reddy, learned Counsel appearing on behalf of the second respondent herein submits that the order passed by the learned Chief Metropolitan Magistrate does not suffer from any infirmity whatsoever.
The order even does not suffer from any jurisdictional errors. Registration of a crime and investigation by a superior Police Officer, itself, does not cause any prejudice to the accused. It is also urged by the learned Counsel for the second respondent that Section 156 of the Code has to be read along with Section 36 of the Code and a combined reading of both the provisions would make it clear that a superior Police Officer can do what all an Officer-in-Charge of a Police Station can do under the Code.
8. The learned Public Prosecutor also submits that the order impugned does not suffer from any infirmity.
9. Before dealing with the rival submissions, it would be appropriate to have a look at Section 156 of the Code.
156. 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.
It would also be appropriate to have a look at Section 36 of the Code which is to the following effect :
36. Powers of Superior Officers of Police :
Police officers superior in rank to an Officer-in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.
10. Placing reliance upon sub-section (3) of Section 156, the learned senior Counsel for the petitioners would urge that a Magistrate empowered under Section 190 of the Code to take cognizance of any offence upon receiving a complaint of facts which constitute an offence could order investigation, if he so considers an investigation as envisaged by sub-section (3) of Section 156 of the Code. It is urged that such an investigation could be only by an Officer-in-charge of a Police Station and by none else.
11. Learned senior Counsel placed reliance upon a decision of Kerala High Court in State of Kerala v. Kolakkacan Moosa Haji, 1994 Crl. LJ 1288. In the said decision, the Kerala High Court held that the primary responsibility for investigation of a cognizable case reported in that station vests with such police officer. Section 156(3) of the Code empowers a Magistrate to direct such officer in charge of the police station to investigate any cognizable case over which such Magistrate has jurisdiction. The High Court further held that 'there is no provision in the Code or 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.'
12. In Mutharaju Satyanarayana v. Government of A.P., 1997 (2) ALT (Crl) 53 a Division Bench of this Court approvingly referred to the decision in State of Kerala's case (supra) and observed that :
"In State of Kerala v. Kolakkacan Moosa Haji, the Supreme Court (sic) was considering the question whether a Magistrate while ordering under Section 156(3) of Cr.P.C. can direct the Inspector-General of Police to conduct investigation. The Supreme Court (sic) observed that there is no provision in the Code of Criminal Procedure or in any other statute, which confers power on a Magistrate to direct any officer other than an officer-in-charge of Police Station to conduct investigation, it, therefore, held that the order of Magistrate forwarding a complaint against police personnel, including D.I.G. of Police, filed before him to the Inspector General of Police to conduct investigation in exercise of powers under Section 156 Cr.P.C., is without jurisdiction. Thus, it is clear that the investigation has to be conducted by the officer-in-charge of Police Station as contained in the Code, but not by any other officer."
13. In my considered opinion Section 156 of the Code deals with the power of an Officer-in-charge of a Police Station to investigate any cognizable case without any order from a Magistrate having jurisdiction over the local area. It merely says that an Officer-in-charge of a Police Station to proceed with the investigation into a cognizable case without waiting for an order of a Magistrate. At the same time, sub-section (3) confers this power on the Magistrate who is empowered to take cognizance of any offence upon receiving a complaint to direct investigation by an officer-in-charge of a Police Station, sub-section (2) of Section 156 makes it clear that no proceeding of a Police Officer 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 into. If the investigation is done by an officer, who is not an officer-in-charge of a Police Station, also cannot be called in question. Thus viewed, sub-section (1) of Section 156 is declaratory in nature and declares that an officer-in-charge of a Police Station can proceed with the investigation without awaiting for the orders from a Magistrate.
In this context, it would be appropriate to read Section 154 of the Code. It reads thus :
154. Information in Cognizable cases :
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a Police Station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed By the person giving it, and the substance thereof, shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an office-in-charge of a Police Station to record the information referred to in sub-section (1) may send the substance of a such information in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the Police Station in relation to that offence.
14. Thus, Section 154 relates to registration of a crime of cognizable offence by an officer-in-charge of a Police Station upon receiving information relating to commission of a cognizable offence. It mandates that every officer-in-charge of a Police Station to reduce into writing every information relating to commission of a cognizable offence and be entered in a book prescribed for the purpose. It is commonly known as registration of First Information Report. It is nothing but registration of a crime relating to commission of a cognizable offence. Section 154(3) of the Code enables the Superintendent of Police concerned to take over an investigation of the case by himself or direct an investigation to be made by any police officer subordinate to him, if an officer-in-charge of a Police Station refuses to record a First Information referred to in sub-section (1). In either case, where the investigation is taken over by a Superintendent of Police or entrusted by him to any Police Officer subordinate to him, they shall have the same powers of an officer-in-charge of the Police Station. It is required to notice that sub-section (3) of Section 154 speaks about the investigation by a Superintendent of Police or by any Police Officer subordinate to him, in case the officer-in-charge of a Police Station refuses to record the information received by him as per subsection (1) of Section 154. Does it mean that the Superintendent of Police or an officer subordinate to him, on his directions shall investigate the same without registration of a crime ? Obviously, the power of the Superintendent of Police to investigate a crime either by himself or by any officer subordinate to him or authorised by him, includes the power to registration of the crime. The question of investigation of a crime does not arise without its registration. Here it would be appropriate to notice that Section 156 of the Code deals with the Police Officers' power to investigate cognizable case. Investigation of a cognizable case by a Police Officer in exercise of power under Section 156 is a step subsequent to that of registration of information relating to commission of a cognizable offence and its registration in the book prescribed for the purpose. That is how the complaint received pursuant to the directions of a Magistrate under Section 156(3) is first registered as information relating to commission of a cognizable offence under Section 154; and then taken up for investigation under Section 156 of the Code.
15. It would be appropriate to notice Section 168 of the Code, which enables even a subordinate police officer to make investigation into a cognizable offence, but mandates that such subordinate police officer shall report the result of the investigation to the officer-in-charge of the Police Station. A combined reading of Sections 154, 156 and 168 of the Code would make it clear that an investigation into a cognizable offence can be by an officer-in-charge of a Police Station or by an officer subordinate to him, who shall report the result of the investigation to the incharge of the Police Station or an officer superior to the officer incharge of the Police Station.
16. Section 36 of the Code would further clarify the legal position. Section 36 envisages that a police officer superior in rank to officer-in-charge of the police station can exercise the same powers through out the local area to which they are appointed, as may be exercised by such officer-in-charge of the Police Station within the limits of his station. It is thus clear an officer superior to an officer in charge of a Police Station is authorised to exercise all the powers of an officer-in-charge of a Police Station.
Let us make an analysis of Section 36 of the Code.
17. Section 36 implicitly says that if there are more than one Police Station under the jurisdiction of an officer superior in rank to an officer-in-charge of a Police Station, such superior officer exercises powers of an officer-in-charge in respect of each Police Station under his jurisdiction. An officer-in-charge of a Police Station exercises the powers of investigation of any cognizable offence within the limits of such Police Station of which he is incharge; whereas the superior police officer exercises the same powers in respect of more than one Police Station within his jurisdiction. To illustrate further, the Superintendent of Police exercises the same powers of an officer-in-charge of a Police Station in respect of as many Police Stations as may be within his district. A Sub-Divisional Police Officer may exercise the same powers of an officer-in-charge of a Police Station within his Sub-Division and a Circle Inspector of Police may exercise the same powers which an officer-in-charge of a Police Station exercises in respect of the Police Stations within his circle. It is thus clear that a superior police officer exercises all the powers of an officer-in-charge of Police Station either for registering an offence relating to commission of a cognizable offence or to investigate into such cognizable offence. The power includes both for registration and investigation of the crime.
18. In Ramappa v. State of Karnataka, 1985 Crl. LJ 410, the order passed by the learned Magistrate ordering the Superintendent of Police to investigate a complaint in purported exercise of power under Section 156(3) of the Code has been upheld and the Karnataka High Court observed that "in the instant case, the learned Magistrate has thought of directing the investigation of the complaint by the Superintendent of Police who is the District Head of the Police, obviously bearing in mind that the complaint was directed against some of the subordinate police officials working in the same District. In such a situation, I do not find any impropriety in the order made by the learned Magistrate directing the Superintendent of Police of the District to investigate the complaint and submit a report."
19. In Lilade Sitade Pavaiya v. State of Gujarat, 1983 Crl. LJ 934, the Gujarat High Court had an occasion to consider the scope of immunity given to the investigation proceedings initiated by any police officer with particular reference to sub-section (2) of Section 156 which provides comprehensive immunity from the attack on the investigation procedure and held :
"It is, therefore, obvious that the officer-in-charge of the Police Station is also a police officer, but he is designated police officer by express words of Section 156(1). But when we come to sub-section (2), advisedly the Legislature has used wider word 'Police Officer' meaning thereby that immunity is sought to be given to the investigation proceedings initiated by any police officer, which in its turn would include even an officer in charge of the Police Station and this immunity against any attack on the investigation procedure is a comprehensive immunity which states that such investigation shall not be called in question on the ground that the case was one which such officer was not empowered under this section to investigate the offence, even then, his investigation cannot be called in question at any stage of investigation. Empowerment of the officer to investigate may be qua his designation or qua the territorial jurisdiction within which he functions. Both these aspects are aspects of empowerment under Section. 156(1), But the attempt of Mr. Barot was to show that sub-section (2) of Section 156 may be so read as to provide only for immunity against procedural irregularity regarding investigation by the designated police officer and that this immunity may not be extended to cover cases of absence of territorial jurisdiction. On the express language of Section 156(2), it is not possible to agree with the aforesaid contention of Mr. Barot. It must be held that any sort irregularity or illegality in the conducting of investigation by any police officer with respect to any type of empowerment under Section 156(1) including territorial jurisdiction, is all taken care of by the provisions of Section 156(2). The net result, therefore, is that even assuming that a police officer incharge of a Police Station seeks to investigate into an offence which is beyond his territorial jurisdiction or alternatively, an officer other than the officer incharge of the police station seeks to investigate into the offence which otherwise falls within the territorial jurisdiction of the said Police Station, in either case, Section 156(2) immunises this investigation against any possible attack on the ground of absence of power with the concerned investigating officer.''
20. In State of Bihar v. J.A.C. Saldanna, , the Apex Court had an occasion to consider the scope of Section 36 and held :
"The use of the word 'rank' in Section 36 of the Code comprehends the hierarchy of police officers- It is equally clear that Inspector General of Police will have jurisdiction over the whole of the State. Division of work, but no demarcating any local area indicates that Inspector General, Vigilance will have jurisdiction extending over the whole of the State and this equally becomes clear from the Notification dated June 6, 1973, issued by the State Government in exercise of the power under clause (s) of sub-section (1) of Section 4 of the 1898 Code declaring that in respect of certain offences the Vigilance Department shall be deemed to be a Police Station having its jurisdiction throughout the whole of the State of Bihar. Even apart from this, Inspector General appointed by the State Government has jurisdiction over the whole of the State unless the contrary is indicated. If he is thus an officer superior in rank to an officer in charge of a Police Station he could in view of Section 36 exercise the powers of an officer in charge of a Police Station throughout the local area to which he was appointed meaning thereby the whole of Bihar State as might be exercised by an officer in charge of a Police Station within the limits of his Police Station. It was to him that the investigation of the case was ordered to be handed over by the State Government."
21. The Apex Court in the said case was considering the validity of the notification issued by the State Government in exercise of power in clause (s) of sub-section (1) of Section 4 of 1898 Code declaring that in respect of certain offences the Vigilance department itself be deemed to be a Police Station having its jurisdiction throughout the whole of the State of Bihar. The investigation made by the Inspector General of Vigilance in that case was upheld even on the ground that the Inspector General of Vigilance appointed by the State Government had not only the jurisdiction through out the State deeming the Vigilance Department to be a Police Station; but also on the ground that he is an officer superior in rank to officer-in-charge of a Police Station and exercising the power of officer-in-charge of a Police Station through out the local area to which he was appointed meaning thereby the whole of Bihar State.
22. In my considered opinion Mutharaju Satyanarayana's case (supra) does not support the case of the petitioner which is an authority for the proposition that the Government has no power and jurisdiction to interfere with the discretionary power of the investigation authority and direct it to file a report even if in the opinion of the Investigating Officer, no case is made out against the accused. On the other hand, it lays down that investigation has to be conducted by the officer-in-charge of the Police Station or the superior officers. The following observation of the Court would clarify the position :
"From the above provisions of the Code, it is clear that investigation has to be conducted by the officer-in-charge of the Police Station or the superior officers. Upon conducting investigation, the officer-in-charge of Police Station or the superior officer shall forward the accused, if he is under custody, to the Magistrate empowered to take cognizance of the offence if it appears to him that there is sufficient evidence or reasonable ground of suspicion. After conducting investigation, the officer-in-charge of police station or superior officer shall forward a report to the Magistrate after collecting the evidence, if he comes to the conclusion that there is prima facie case against accused for sending report. If there is no sufficient material, he has to send referred report to the Magistrate. The officer-in-charge of Police Station is empowered to conduct further investigation even after filing charge-sheet and file further report. Thus the Code of Criminal Procedure provides that the officer-in-charge of Police Station or the superior officer has to investigate the offence, collect the evidence and has to file the police report, The power of investigation is entirely vested in the officer-in-charge of police station. There is no provision in the Code empowering any other officer, other than the officer in charge of Police Station, to file the police report, except the superior officers. The Magistrate has also no power to direct the officer-in-charge of police station to file report, even though he can take cognizance of the offence on the basis of the report filed by such officer. The important steps in the Code as to investigation by the officer-in-charge of Police Station consist of formation of opinion by such officer as to whether the material collected is sufficient to place the case before the Magistrate against the accused for trial and for filing of referred report. Thus discretion is vested in the officer-in-charge of Police Station to form an opinion that material collected is sufficient to file the police report or not. The said opinion is subject to jurisdiction of Magistrate to take cognizance of the offence. Where a report is filed by the investigating officer stating that no offence is made out against the accused, still it is open to the Magistrate to take cognizance of the offence after examining the case diaries. But he cannot direct the investigating officer to file the police report. Thus, whether there is prima facie case made out against the accused or not for filing report is within the jurisdiction of the investigating officer and superior officers subject to the control of the Magistrate. No others can interfere with tire discretion of formation of opinion."
23. The decision lays down that it is the investigating officer, who is required to form opinion in his discretion as to whether there is any prima facie case made out against the accused in a criminal case. It is not permissible in law that such a formation of opinion could be reached by any person other than the investigating officer. The investigating officer could be an officer-in-charge of a Police Station or an officer superior in rank exercising the powers of an officer-in-charge of a Police Station. It is in the light of this scheme of the Code that the scope of provision like Section 156(3) of the Code has to be judged. Normally the registration of a cognizable case upon receipt of the information is made by an officer-in-charge of the Police Station so also the investigation is also made by an officer-in-charge of the Police Station. But a comprehensive reading of Sections 36, 154, 156, 168 and 173 of the Code would make it clear that in a given case the investigation of a cognizable case can be taken up by an officer superior in rank to that of an officer-in-charge of the Police Station and in such cases, the opinion whether any prima facie case is made out against the accused or not for filing a report is within the jurisdiction of such investigating officer. An investigating officer could be an officer-in-charge of a Police Station or superior officer in rank. In a given case, even a subordinate officer to that of an officer-in-charge of a Police Station can investigate into a cognizable case, but shall have to report the result of such investigation to the officer-in-charge of the Police Station; but the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer-in-charge of the Police Station. The power to form opinion in any case could not be by an officer inferior to that of an officer-in-charge of the Police Station. There is nothing like a delegation of power. In a given case, an officer superior in rank taking up the investigation, he merely steps into the shoes of an officer-in-charge of a Police Station and he may require the assistance of an officer inferior in rank, but the requisite formation of opinion as to whether or not there is a case to place the accused on trial is to be that of the superior officer himself, in his capacity as investigating officer. This is, in my considered opinion, is the scheme of the Code.
24. In the instant case, if the issue raised is to be considered in the back-ground of the stated legal position, the order passed by the learned Chief Metropolitan Magistrate, Visakhapatnam, directing the Assistant Commissioner of Police, Visakhapatnam and report, does not suffer from any infirmity. In a given case, a Magistrate is empowered to order investigation into a cognizable case by an officer-in-charge of the Police Station or an officer superior in rank to that of an officer-in-charge of a Police Station. But the Magistrate cannot direct the investigation by the subordinate police officer, as such subordinate police officer can only make the investigation and report to the officer-in-charge of the Police Station. The investigation by a superior officer would virtually mean the investigation by an officer-in-charge of a Police Station as such superior officer merely exercises the power of an officer-in-charge of a Police Station.
25. In the case on hand, the Assistant Commissioner of Police is an officer superior in rank to that of an officer-in-charge of a Police Station. Evidently there is more than one Police Station within the jurisdiction and he is entitled to exercise the powers of an officer-in-charge of a Police Station in respect of more than one Police Station. The Police Station, where the crime is registered, admittedly, is within the jurisdiction of the Assistant Commissioner of Police, Law and Order (North), Visakhapatnam, who is directed to make an investigation into the case, by the learned Magistrate.
26. The learned Magistrate, perhaps, having regard to the magnitude and complex nature of the investigation thought it fit to direct a senior police officer, in the rank of an Assistant Commissioner of Police, to make investigation into the case. It does not suffer from any jurisdictional error requiring interference of this Court.
27. Thus, the order of the learned Chief Metropolitan Magistrate, Visakhapatnam, dated 30-4-1998 does not suffer from even any procedural irregularity. The investigation by a superior police officer does not result in any mis-carriage of justice. Such investigation by an officer superior in rank also does not cause any prejudice to the petitioners/accused.
28. Viewed from any angle, the petition deserves dismissal and the same is accordingly dismissed.