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Sec.36 and sec. 173 of Cr.P.C. – Whether the station officer alone has got right to submit final report under sec.173 (2) but not other superior officers ? = STATE OF BIHAR & ANR. … APPELLANTS VERSUS LALU SINGH …RESPONDENT = Reported in http://judis.nic.in/supremecourt/filename=40913

Sec.36 and sec. 173 of Cr.P.C. – Whether the station officer alone has got right to submit final

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

report under sec.173 (2) but not other superior officers  ? Apex court held wrong and set aside this observation made by high court  and distinguished the  observation made by Apex court judgement M.C.Mehta  (Taj Corridor Scam) v. Union of India,(2007) 1 SCC 110.  that it is the officer-in-charge of the police station, who is competent  to  form  final  opinion. as there is a conflict to come to final conclusion between officer but not in this case =

 

 

 

The observations made read as follows:

 

             “I have no doubt in taking this view that under Section 36  of

 

             the Code of Criminal Procedure, the  higher  police  officials

 

             have got same powers as available to the officer-in-charge  of

 

             a police station under them but the power  is  available  only

 

             with respect to supervising the investigation or participating

 

             into the investigation to some extent but under section 173(2)

 

             of the Code of Criminal Procedure, the  final  view  over  the

 

             investigation of a case with regard to filing charge sheet  or

 

             final form has to be taken by the concerned  officer-in-charge

 

             only and he only has the authority to file the charge sheet in

 

             the case” =

 

 

 

The case in  hand

 

is not one of those cases where the officer-in-charge of the police  station

 

had deputed the Inspector of C.I.D. to conduct some steps  necessary  during

 

the course of investigation. 

 

Rather, in the present case, the  investigation

 

itself was entrusted to  the  Inspector  of  C.I.D.  by  the  order  of  the

 

Director General of Police.  

 

In  such  circumstances,  in  our  opinion,  it

 

shall not be necessary for the officer-in-charge of the  police  station  to

 

submit the report under Section 173(2) of the Code.   

 

The  formation  of  an

 

opinion as to whether or not there is a case  to  forward  the  accused  for

 

trial shall always be with the officer-in-charge of the  police  station  or

 

the officers superior in rank to them, but in a  case  investigated  by  the

 

Inspector of C.I.D., all these powers have to be performed by the  Inspector

 

himself or the officer superior to him.  

 

In view of what we  have  discussed

 

above, the observations made by the High Court in the impugned  judgment  is

 

erroneous and deserve to be set aside.

 

 

 

 

 

        The High Court while coming to the aforesaid conclusion has greatly

 

been swayed by the observation of this Court in the case of  M.C.Mehta  (Taj

 

Corridor Scam) v. Union of India,(2007) 1 SCC 110.  

 

In that case  the  Court

 

was considering the  scope  of  Section  173(2)  of  the  Code  in  case  of

 

difference of opinion between the team of  investigating  officers  and  the

 

law officers on one hand  and  the  Director  of  Prosecution  of  the  same

 

investigating agency i.e. C.B.I., on the other hand, 

 

on the question  as  to

 

whether there exist adequate materials for  judicial  scrutiny  against  the

 

accused persons.  

 

In this background this Court held that it is the officer-

 

in-charge of the police station, who is competent  to  form  final  opinion.

 

In this connection, it has been observed as follows:

 

 

 

                 “31. As stated above, 

 

the formation of the opinion, whether

 

             or not there is a case to place the accused on  trial,  should

 

             be that of the officer in charge of  the  police  station  and

 

             none else. 

 

Under the CBI Manual, the officer in charge of  the

 

             police station  is  the  SP.  

 

In  this  connection,  we  quote

 

             hereinbelow the CBI Manual, which though not binding  on  this

 

             Court in Supreme Court monitored cases, nonetheless, the  said

 

             Manual throws light on the controversy in hand.”

 

 

 

        In the case in hand, there is no such controversy.   

 

The  case  was

 

transferred to the C.I.D. and it  was  entrusted  for  investigation  by an Inspector of C.I.D., 

 

who possesses a rank superior to  an officer-in-charge of the police station as per Rule 431(b)  extracted  above  and,  therefore, competent to form opinion in terms of Section 173(2) of  the  Code,  subject of course to the power of superior officer.

 

 

 

 

 

      In  the  result,  we  allow  this  appeal,  set  aside  the   impugned

 

observations, but without any order as to the costs.

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO.1883 OF 2013
(@SPECIAL LEAVE PETITION (CRL.) NO. 7066 OF 2009)

 
STATE OF BIHAR & ANR. … APPELLANTS

 

VERSUS

 

LALU SINGH …RESPONDENT

 
J U D G M E N T

 
CHANDRAMAULI KR. PRASAD, J.

 
While dismissing the Writ Petition, the High Court has made
observations which have far reaching consequences and accordingly the State
of Bihar, aggrieved by the same has preferred this Special Leave Petition.
The observations made read as follows:
“I have no doubt in taking this view that under Section 36 of
the Code of Criminal Procedure, the higher police officials
have got same powers as available to the officer-in-charge of
a police station under them but the power is available only
with respect to supervising the investigation or participating
into the investigation to some extent but under section 173(2)
of the Code of Criminal Procedure, the final view over the
investigation of a case with regard to filing charge sheet or
final form has to be taken by the concerned officer-in-charge
only and he only has the authority to file the charge sheet in
the case”

 
While doing so, however, the High Court has not quashed the report
submitted by the Inspector of the Criminal Investigation Department of the
State Government.

 
It is the aforesaid observation, which is the subject matter of
this special leave petition.

 
Leave granted.

 
Facts lie in a narrow compass:
On the basis of an oral statement made by one Shail Kumari Devi
before the officer-in-charge of Marhaura Police Station, Marhaura, P.S.
Case No. 148 of 2004 was registered under Section 302/34 of the Indian
Penal Code and Section 27 of the Arms Act. The officer-in-charge of the
Police Station took up the investigation, but before he could complete the
same, and submit report in terms of Section 173 of the Code of Criminal
Procedure (hereinafter referred to as the “Code”), the Director General of
Police entrusted the investigation to the Criminal Investigation
Department, (hereinafter referred to as “C.I.D.”) and the task for
conducting the investigation was assigned to an Inspector. The Inspector
of C.I.D. conducted the investigation and submitted the charge-sheet
against the accused persons. On consideration of the charge-sheet and the
materials collected during the course of investigation, the Chief Judicial
Magistrate, Saran took cognizance of the offence and directed for issuance
of process. One of the accused, namely Lalu Singh, aggrieved by the same,
preferred writ petition before the High Court for quashing the prosecution,
inter alia, on the ground that under Section 173(2) of the Code only an
officer in-charge of a Police station has the authority to do that and,
therefore, the charge-sheet submitted by the Inspector, C.I.D. is fit to be
quashed.

 
The High Court considered the aforesaid submission and though it
declined to quash the charge-sheet, it made the observation quoted above
and held that it is the officer-in-charge only who can file the charge-
sheet.

 
We have heard Mr. Manish Kumar, learned Counsel for the appellants
and Mr. Nagendra Rai, learned Senior Counsel for the respondent.

 
Mr. Kumar contends that the Inspector of C.I.D. possesses the power
to submit report under Section 173(2) of the Code and the observation made
by the High Court is erroneous. Mr. Rai, however, submits that in the
facts of the present case, the High court was justified in making the
observations as quoted above.

 
In view of the rival submissions, we deem it expedient to analyse
the scheme of the Code and the provisions of the Bihar Police Manual.
Section 173 of the Code contemplates submission of report on completion of
investigation. Section 173(2) of the Code which is relevant for the
purpose reads as follows:
“173 – Report of police officer on completion of investigation-

 

 

 
(1) xxx xxx xxx

 
(2)(i) As soon as it is completed, the officer in charge of
the police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating –

 
(a) the names of the parties;

 
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted
with the circumstances of the case;

 
(d) whether any offence appears to have been committed
and, if so, by whom;

 
(e) whether the accused has been arrested;

 
(f) whether he has been released on his bond and, if so,
whether with or without sureties;

 
(g) whether he has been forwarded in custody under section
170;

 
(h) whether the report of the medical examination of the
woman has been attached where investigation relates to an
offence under section 376, 376A, 376B, 376C or 376D of the
Indian Penal Code (45 of 1860).

 
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by
him, to the person, if any, by whom the information relating
to the commission of the offence was first given.

 
xxx xxx xxx”

 

 

 
From a plain reading of the aforesaid provision, it is evident that
it is the officer-in-charge of a police station who is authorized to
forward report in the prescribed form to the Magistrate empowered to take
cognizance. Section 36 of the Code deals with the power of superior
officers of police with reference to the officer-in-charge of a police
station, same reads as follows:

 
“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.”

 
Therefore, under the scheme of the Code the power to submit report
in terms of Section 173(2) of the Code is with the officer-in-charge of the
police station. Further, in view of Section 36 of the Code, police officers
superior in rank to an officer-in-charge of the police station throughout
the local area have been conferred with the authority to exercise the same
power as that of officer-in-charge of police station. In the present case,
the investigation has been conducted by Inspector of C.I.D. and he had
submitted the report under Section 173(2) of the Code. Therefore, the
question is as to whether the Inspector of C.I.D. can be treated in law as
the officer-in-charge of the police station for the purpose of submitting
the report contemplated under Section 173(2) of the Code. The State
Government, in exercise of the powers under Sections 7 and 12 of the Police
Act, 1861, has framed the Bihar Police Manual. Chapter 15 thereof deals
with the constitution and functions of the Criminal Investigation
Department. Rule 431, with which we are concerned in the present appeal,
reads as follows:
“431.(a) Sub-Inspectors of the department deputed to
districts have not the powers of an officer in charge of a
police-station nor of the subordinate of such an officer,
unless they are posted to a police-station for the purpose of
exercising such powers. It follows that unless so posted they
have not the powers of investigation conferred by Chapter XII,
Cr.P.C. and their functions are confined to supervising or
advising the local officers concerned. If for any reason it
be deemed advisable that a Sub-Inspector of the department
should conduct an investigation in person, the orders of the
Inspector-General shall be taken to post him to a district
where he shall be appointed by the Superintendent to the
police-station concerned. Such a necessity will not arise in
case of Inspectors of C.I.D. as given in sub-rule (b) below.

 
Sub-Inspectors of the department shall not be employed to
conduct investigations in person unless such orders have been
obtained.

 
(b) Under section 36, Cr.P.C. Inspectors and superior
officers of the C.I.D. are superior in rank to an officer in
charge of a police-station and as such may exercise the same
powers throughout the State as may be exercised by an officer
in charge of a police-station within the limits of his
station.”

 

 

 

 

 
Rule 431(b) makes the Inspectors and superior officers of the
C.I.D. superior in rank to an officer-in-charge of a police station and
they have been conferred with the same powers as may be exercised by an
officer-in-charge of a police station. This Rule, therefore, envisages
that an Inspector of C.I.D. can exercise the power of an officer-in-charge
of a police station. Here, in the present case, as stated earlier, the
investigation was conducted by the Inspector of C.I.D. and it is he who had
submitted the report in terms of Section 173 of the Code. In view of what
we have observed above, the Inspector of C.I.D. can exercise the power of
an officer-in-charge of a police station and once it is held so, its
natural corollary is that the Inspector of C.I.D. is competent to submit
the report as contemplated under Section 173 of the Code. The case in hand
is not one of those cases where the officer-in-charge of the police station
had deputed the Inspector of C.I.D. to conduct some steps necessary during
the course of investigation. Rather, in the present case, the investigation
itself was entrusted to the Inspector of C.I.D. by the order of the
Director General of Police. In such circumstances, in our opinion, it
shall not be necessary for the officer-in-charge of the police station to
submit the report under Section 173(2) of the Code. The formation of an
opinion as to whether or not there is a case to forward the accused for
trial shall always be with the officer-in-charge of the police station or
the officers superior in rank to them, but in a case investigated by the
Inspector of C.I.D., all these powers have to be performed by the Inspector
himself or the officer superior to him. In view of what we have discussed
above, the observations made by the High Court in the impugned judgment is
erroneous and deserve to be set aside.

 
The High Court while coming to the aforesaid conclusion has greatly
been swayed by the observation of this Court in the case of M.C.Mehta (Taj
Corridor Scam) v. Union of India,(2007) 1 SCC 110. In that case the Court
was considering the scope of Section 173(2) of the Code in case of
difference of opinion between the team of investigating officers and the
law officers on one hand and the Director of Prosecution of the same
investigating agency i.e. C.B.I., on the other hand, on the question as to
whether there exist adequate materials for judicial scrutiny against the
accused persons. In this background this Court held that it is the officer-
in-charge of the police station, who is competent to form final opinion.
In this connection, it has been observed as follows:

 

“31. As stated above, the formation of the opinion, whether
or not there is a case to place the accused on trial, should
be that of the officer in charge of the police station and
none else. Under the CBI Manual, the officer in charge of the
police station is the SP. In this connection, we quote
hereinbelow the CBI Manual, which though not binding on this
Court in Supreme Court monitored cases, nonetheless, the said
Manual throws light on the controversy in hand.”

 

 

 
In the case in hand, there is no such controversy. The case was
transferred to the C.I.D. and it was entrusted for investigation by an
Inspector of C.I.D., who possesses a rank superior to an officer-in-charge
of the police station as per Rule 431(b) extracted above and, therefore,
competent to form opinion in terms of Section 173(2) of the Code, subject
of course to the power of superior officer.

 
In the result, we allow this appeal, set aside the impugned
observations, but without any order as to the costs.

 
……………………..………………………………..J.

 
(CHANDRAMAULI KR. PRASAD)

 

 

 

 

 
…….….……….………………………………..J.
(JAGDISH SINGH KHEHAR)

 
NEW DELHI,
OCTOBER 29, 2013
———————–
13

 

 

 

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