Karnataka High Court
Mr. Magadi Shankar Rao Krishna Murthy vs The Commissioner Of Police on 28 October, 2015
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER 2015
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL PETITION NO.3338/2015
BETWEEN:
1. MR.MAGADI SHANKAR RAO KRISHNA MURTHY
S/O MR. M.G.SHANKAR RAO
AGED ABOUT 50 YEARS
PARTNER,
M/S. LICRA GREEN TECHNOLOGIES
RESIDING AT NO.975, 13TH CROSS,
BANASHANKARI II STAGE,
BANGALORE - 560 070.
2. MR. C.R. UMANATH
S/O LATE MR. A.RAJAGOPAL
AGED ABOUT 51 YEARS
PARTNER,
M/S LICRA GREEN TECHNOLOGIES
RESIDING AT SF-1, CASTLE RESIDENCY
#55/12, 12TH CROSS, BASAPPA LAYOUT
GAVIPURAM EXTENSION
BANGALORE - 560 019
3. MR.H.S.GANGADHARA
S/O MR.H.T.SHIVANNA
AGED ABOUT 49 YEARS
PARTNER, M/S. LICRA GREEN TECHNOLOGIES
RESIDING AT #33,
SUHAS DOCTORS LAYOUT, WHITEFIELD
BANGALORE - 560 056
4. MRS.VEENA KRISHNA MURTHY
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W/O MR. M.S.KRISHNA MURTHY
AGED ABOUT 44 YEARS
PARTNER, M/S. LICRA GREEN TECHNOLOGIES
RESIDING AT NO.975, 13TH CROSS,
BANASHANKARI II STAGE,
BANGALORE - 560 070
...PETITIONERS
(BY SRI ARVIND KAMATH K., ADV.)
AND:
1. THE COMMISSIONER OF POLICE
BANGALORE CITY POLICE,
NO.1, INFANTRY ROAD,
BANGALORE - 560 001
2. CENTRAL CRIME BRANCH
COTTONPET MAIN ROAD
SULTANPET, CHIKPETE
BANGALORE - 560 053
REPRESENTED BY SPP
3. STATE OF KARNATAKA
REPRESENTED BY ELECTRONIC CITY
POLICE STATION
REPRESENTED BY SPP
4. SRI RAGHUNATH SRINIVASAN
S/O LATE L.K.SRINIVASAN
AGED ABOUT 58 YEARS
RESIDING AT NO.SF1 PARK,
CASTLE RESIDENCY, 55/12,
12TH CROSS, BASAPPA LAYOUT,
GAVIPURAM EXTENSION,
BANGALORE - 560 019.
...RESPONDENTS
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP. FOR R1 TO R3;
SRI C.V.SUDHINDRA, ADV. FOR R4)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE COMPLAINT
REGISTERED IN PCR NO.398/2014 FILED BEFORE THE
HON'BLE CHIEF JUDICIAL MAGISTRATE, BANGALORE
RURAL DISTRICT, BANGALORE VIDE ANNEXURE-A AND B
AND ETC.
THIS CRL.P. HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 16/10/2015 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:-
ORDER
A nice question of law has arisen for consideration in this petition "Whether a police officer exercising his power under Section 36 of Cr.P.C. while taking out the investigation of a case from an officer in charge of police station, can transfer the investigation to another police officer inferior to him?"
2. The fact is:
The forth respondent herein filed a private complaint before the jurisdictional Magistrate under Section 200 r/w. Section 190 of Cr.P.C. in respect of the offences punishable under Sections 403, 406, 409, 420, 464, 468, 471, 477A, 385 and 120B of IPC and the learned Magistrate acting under Section 156(3) of Criminal -4- Procedure Code (hereinafter referred to as 'the Code') referred the matter for investigation, vide order dated 01.10.2014 to the first respondent police and the case is registered in crime No.447/2014 on 11.10.2014.
3. It appears that on a representation made by the wife of the complainant, the Commissioner of Police / first respondent transferred the investigation to the Central Crime Branch. On the first respondent's representation to the Court seeking permission to transfer the investigation, the accused persons have approached this Court.
4. Sri Arvind Kamath .K, learned Counsel for petitioners submits that when the JMFC Court had referred the investigation to the jurisdictional local police, the first respondent / Commissioner of Police has no authority to intervene and meddle with the investigation. It is not the prerogative of the complainant to select a particular investigating agency as held by the Apex Court in the case of CBI and Another Vs. Rajesh Gandhi and -5- Another reported in 1997 Crl.L.J 63. Even if the complainant is not happy with the mode in which investigation is proceeding, the only avenue open for him is to approach the Magistrate who referred investigation under Section 156(3) of the Cr.P.C. for the redressal of his grievance. The Magistrate if convinced may order for proper investigation as held by the Apex Court in Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in AIR 2008 SC 907. The investigation cannot be handed over to CCB, but shall continue as per the order of the Magistrate with the jurisdictional police only.
5. In reply, Sri C. V. Sudhindra, learned Counsel for respondent No.4 submits that the petitioners and the fourth respondent / complainant are the partners of a registered partnership firm; the petitioner was the Managing Partner, in view of the differences that arose inter se, it was impossible for the complainant to continue to work as Managing Partner; he had to resign from the position of Managing Partner, but he had not -6- rescinded from the partnership of the firm; the accused persons treated his letter of resignation as the retirement from the partnership firm, though it was in respect of his designation as Managing Partner, they concocted documents and notified to the bank and financial institutions that he has resigned. Thus blocked his access to firm and firm's emails etc. On that he was constrained to file a complaint to the jurisdictional JMFC Court, though the complaint was referred on 29.09.2014 for investigation, the Investigating Officer did not register the case and investigation did not gain speed.
That made the complainant to doubt that the local police are in hand and glove with the accused persons. There is nothing wrong on the part of the Commissioner to act on the representation of his wife, who is also complaint witness to exercise his jurisdiction under Section 36 of the Code in transferring the investigation to the Police Officer of the same rank. The law laid down by the Apex Court in Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in AIR 2008 SC 907 that -7- Magistrate can order a proper investigation and take other suitable steps is perincurium and its correctness was doubted in Nirmal Singh Kahlon Vs. State of Punjab reported in 2009 (1) SCC 441 at Para No.68 and in Kishan Lal Vs. Dharmendra Bafna reported in AIR 2009 SC 2932. Further in the case of State of Bihar Vs. Lalu Singh reported in (2014) 1 SCC 666, the position of law was clarified that the Magistrate monitoring the investigation would render the trial farce and the legal proposition laid down in Sakiri Vasu's case (supra) was there by diluted.
6. Sri C.V.Sudhindra, learned Counsel for respondent No.4, further adds that it is the well settled position of law that the complaint referred under Section 156(3) of the Code is preemptory / reminder to the police to investigate. Once reference order is made, the matter comes within the domain of the police to investigate. Section 36 of the Code contemplates that a superior police officer can take up the investigation from the Station House Officer. Transfer of investigation to a specialized squad like CID -8- and CCB, being a specialized squad, which is the appropriate authority to investigate the matter is within the propriety of Section 36 of the Code. By catena of judicial pronouncements it is approved that an Officer superior in rank to an officer in charge of the police station can exercise the power of further investigation by virtue of Section 36 of Code.
7. Learned Counsel continues his submissions, the Apex Court in the case of State of Bihar vs. Lalu Singh reported in (2014) 1 SCC 666, held that the Inspector of CID who was entrusted investigation from the Director General of Police (having taken over investigation from the Officer in charge of the Police Station) was competent to submit the report. In the said circumstances, the Commissioner of police who is authorised under Section 36 of the Code to investigate the matter, if delegates his power to an officer inferior to him who is not less than the rank of a Station House in charge, he is acting so within his jurisdiction and the petitioners cannot question the mode of investigation at this premature stage, i.e., till the final report is filed. If aggrieved by -9- the final report, they can invoke remedy permissible under law toi challenge the final report.
8. Section 36 of the Code which is under discussion reads thus:
"Section 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".
9. A simple and plain reading of the Section admits an inference that a superior police officer above the rank of officer in charge of the police station within the area of his jurisdiction can exercise all the powers which Station House Officer is exercising within the limits of his station. The authorities quoted by the fourth respondent/complainant would further admit that a superior police officer can take over investigation from an inferior investigating officer to investigate the matter. With this we are landing up over a very fine and sharp point, whether this taking over
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and carrying out investigation includes in itself delegation of power of investigation to be carried out by another police officer? Such circumstance is not addressed in any of the authorities relied by the fourth respondent/complainant. It is not found either in the police manual or any of the notification of the government that the superior officer of police can delegate his power under Section 36 of the Code.
10. The petitioners are much aggrieved by the order of the Police Commissioner, Bengaluru, as at Annexure 'D' dated 25.04.2015, whereby he directed further investigation by City Crime Branch. Assistant Commissioner of Police (Crimes) was directed to order investigation to be carried out by a Police Officer of CCB. The Police Inspector of jurisdictional Police Station was directed to hand over the investigation to such Police Officer of CCB, who would carry out investigation. Consequent upon this order, the Investigating Officer sought permission from the learned Magistrate to transfer the investigation to CCB as per the letter Annexure 'X'. It is evident from Annexure 'D' that because of the
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representation of the wife of the complainant, this order is passed. The petitioners among other things are questioning the locus standi and propriety of the wife of the complainant in making representation to the Police Commissioner and the legality of the action taken by the Police Commissioner on her representation. But it is immaterial on whose request and for what reason the order at Annexure 'D' is passed. The matter for concern is, the legality of the order at Annexure 'D' in the middle of the ongoing investigation by the local police under the order of the jurisdictional Magistrate. A situation has arisen that the order of the Commissioner stands in confrontation viz-a-viz with the judicial order passed by the Magistrate.
11. The territorial jurisdiction of the Commissioner of Police to the entire Bangalore City is as specified by the State Government. Commissioner of police is a superior police officer as defined by Section 2(22) of Karnataka Police Act, 1963. The Officer incharge of a Police Station is defined in Section 2(o) of the
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Code usually who is of the rank of the police inspector, is inferior in rank in the hierarchy of the system.
12. The Apex Court in the case of Nirmal Singh Kahla Vs. State of Punjab and Others along with Another Case reported in (2009) 1 SCC 441, observed at para 27 "27 In terms of Section 3 of the Police Act, 1861, the State has the ultimate say in the matter of superintendence of investigation. Section 36 of the Code must be read harmoniously with the said provision. Therefore, when Section 36 of the Code uses the words "in rank", it should be given a purposive construction. Although a plain reading of the aforementioned provision appears to be containing three ingredients, namely, (i) the investigation must be carried out by an Officer in charge; (ii) which may be supervised by an Officer superior in rank; and
(iii) in respect of a local area to which they are appointed, but in the context of the power of the State vis-a-vis the provisions of the Act, the same, in our opinion, deserves a wider application." By a catena of judicial pronouncements, the scope and ambit of this Section 36 of the Code is well defined and there is no doubt that the Commissioner of Bangalore is the officer superior in rank
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to an Officer in charge of the Police Station. The powers of the Police Commissioner in the capacity of the superior officer to take over the investigation from the jurisdictional Investigating Officer cannot be a matter of quarrel.
In the case of CBI Vs. State of Rajasthan and Another reported in AIR 2001 SC 668, it was held that when an order under Section 156(3) of the code is passed by a Magistrate, any officer superior in rank or such officer in charge of the police station can well exercise the power to conduct such an investigation and all such investigation be deemed would be an investigation conducted by an officer the in charge of the police station. It was held 'It is permissible to any superior officer of police to take over the investigation from such officer in charge of the police station either suo motu either on the direction of the Superior Officer or even that of the Government'. Unfortunately, in the case on hand the Commissioner did not take over investigation by himself but directed the Assistant Commissioner of Police (crimes) to order a Police Officer of CCB unit to conduct the investigation. Now it is argued for the
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respondents that the Police Commissioner in the capacity of the superior officer while exercising his power under Section 36 of the Code delegated his power to the Assistant Commissioner of Police, to take out investigation from local jurisdiction for proper investigation through another police officer who is not less than the rank of Station in charge. While presenting such submission, the respondents fail to equate the Commissioner of Police of City of Bangalore to the State as contemplated in Article 12 of the Constitution of India to authorize investigation by a different police officer of different unit. Selection of investigating agency is not the prerogative of the complainant nor the choice of the jurisdictional Magistrate that is also well settled by the judicial pronouncements. It is the State Government or the High Court in exercise of its power under Article 226 of the Constitution that can order investigation by any other specialized agency than the local police. It is the State Government under the general powers of superintendence under Section 3 of the Police Act, 1861 has the power to direct further investigation under Section 173(8) of
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Cr.P.C (State of Bihar and Another Vs. J.A.C. Saldanha and Others reported in 1980 SCC (Cri) 272. The Courts ordinarily do not intervene in the matter of investigation by police, however, in exceptional circumstances, the Court would intervene to protect the personal / propriety rights of the citizen (Manohar Lal Sharma Vs. Principal Secretary and others reported in AIR 2014 SC 666).
13. In Central Bureau of Investigation Vs. State of Rajasthan and Another reported in AIR 2001 SC 668, while adjudicating the question of a Magistrate's power to direct Section 156(3) of the Code, investigation by C.B.I., it was observed in the context of Section 36 of the Code at para 11:
"11. This means any other police officer, who is superior in rank to an officer in charge of a police station, can exercise the same powers of the officer in charge of a police station and when he so exercise the power he would do it in his capacity as officer in charge of the police station. But when a magistrate orders investigation under Section 156(3), he can only direct an
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officer in charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code. Nonetheless when such an order is passed, any police officer, superior in rank of such officer, can as well exercise the power to conduct investigation, and all such investigations would then be deemed to be the investigation conducted by the officer in charge of a police station. Section 36 of the Code is not meant to substitute the magisterial power envisaged in Section 156(3) of the Code, though it could supplement the powers of an officer in charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer in charge of the police station either suo motu or on the direction of the superior officer or even that of the government."
14. The above observation comes in aid to solve the legal puzzle we are faced with. The Commissioner of Police could have exercised his jurisdiction under Section 36 of the Code and could have conducted the investigation by himself. But in the absence of any statutory authority to delegate the power of investigation to an inferior Officer, he could not have assigned the case to the CCB unit. Power to delegate investigation to some extent is vested with
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the Station House Officer who is acting under Section 157(1) of the Code, whereby on receipt of the information he can depute his subordinate officer not below of such rank as the State Government, may direct to proceed to investigate the fact and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. Except the provision at Sub- section (1) of Section 157 of the Code, the concept of delegation of power cannot be perceived either from the Code or Karnataka Police Act. That answers the question raised supra in the beginning of the discussion. Thereby, the order passed by the Commissioner at Annexure 'D' is without authority and propriety. Intervening and transferring the case in the middle of investigation which would have been concluded by this time is illegal. The petition is filed touching the legality of registration of the complaint etc. Though the petitioners are seeking to quash the complaint and FIR itself, the order of the learned Magistrate passed under Section 156(3) of the Code convinces that he has perused the complaint averments and felt it necessary for police investigation and the said
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order does not call for interference. However, both the complainant and the accused, if aggrieved by the final report of the investigation, will have their opportunity to challenge the said order.
15. The petition is allowed in part.
The order passed by the first respondent dated 25.04.2015 at Annexure 'D' is quashed.
In view of the disposal of the main petition, I.A.Nos.2 and 3 of 2015 are also disposed of as having become infructuous.
Sd/-
JUDGE nvj