Court On Its Own Motion vs State
2002 Latest Caselaw 220 Del

JUDGMENT

Devinder Gupta, J.

1. Three delinquents Lalit, Manoj and Rajesh have been produced by Inspector Rajeshwar Kumar, SHO, P.S. Mukherjee Nagar. Files have also been produced.,

2. After the delinquents were caught by Head Constable Joy Sebestian and he recovered from their possession tool bag containing keys and "pana" and stolen care stereos, which led to registration of FIR No. 438/20101 of P.S. Mukerjee Nagar for offences under Sections 379/411/34 IPC. The delinquents are alleged to have made disclosure statements of having committed thefts of car stereos. Seven FIR Nos. 275/2001, 325/2001, 346/2001, 351/2001, 375/2001, 427/2001 and 437/2001 were found to have been registered at P.S. Mukherjee Nagar for theft of car stereos. On their disclosure statement seven more stereos were recovered, at their instance, from one Shakeel Kabari. Thereafter the delinquents were also arrested Along with Shakeel Kabari in these seven cases. Test identification parade of the case property was got conducted before the Link Metropolitan Magistrate. Complaints of the said FIRs did not identify the seven stereos.

3. In view of the above the Investigating Officers moved separate applications before the Metropolitan Magistrate seeing discharge of Shakeel Kabari in seven cases. Shri Sanjeev Aggarwal, learned Metropolitan Magistrate accepted the prayer and discharged Shakeel in all seven cases. In the status report filed today under the signature of Shri Rajeshwar Kumar, SHO, P.S. Mukherjee Nagar it has been stated that Kalandras under Section 103 Delhi Police Act have been prepared against Shakeel Kabari in seven aforementioned FIRs and the same will be filed before the concerned Metropolitan Magistrate.

4. Applications were also filed before the Juvenile Court in seven cases by the Investigating Officers for discharge of the delinquents stating that there is no case made out for sending up the delinquents for trial. When applications came up before the Juvenile Court an order was passed in FIR No. 351/2001 discharging the delinquents. In the remaining six cases the applications for discharge were kept pending and on 11.10.2001 the Juvenile Court asked the Investigating Officers to file charge sheets against the delinquents. Pursuant to such directions charge sheets were filed.

5. We have perused the records. The records reveal that on 3.11.2001 the delinquents were produced before the Juvenile Court. On that date the discharge applications, which had earlier been filed by the Investigation Officer also came up for consideration. Discharge of the delinquents were sought on the ground of non identification of the case property in the test identification parade got conducted by the Investigating Officers. The Juvenile Court had also summoned the complainants for the same date but were not present. The following order was passed by the Juvenile Court in each case:-

"Pr. APP for State

All the 3 delinquents produced

from OHB-II.

This order shall take up the discharge applications of the IO in all the above mentioned cases, their discharge is requested on the ground of non-identification of the case property in TIP. The complainant was summoned for today in the court but he is not present and this is the last date for placing the chargesheet if application for discharge is not disposed off. Thus the court has observed that the complainant is required for the purpose of deciding the discharge application in all the cases and the present circumstances, considering the period of custody, IO is directed to place all the files after compliance of all the formalities pertaining to report of Section 173 Cr.P.C. against all the delinquents and placed it before the court. The case of discharge of all the delinquents on the grounds taken, shall be considered after evidence of the complainant as court witness even on filing of chargesheet. Complainant be summoned afresh. All the cases are considered as chargesheet. Though, IO is directed to place it in the form of formal chargesheet against all the three delinquents of this case. The case be checked and registered.

Complainant be summoned for 17.11.2001. The discharge application shall also be taken up on that day. IO is directed to complete all the formalities for putting the case as it is before court. The case file may be taken by the IO for this purpose and may be produced before the court on 5.11.2001 at 10 A.M."

6. The aforementioned order suggest that as the complainants had been summoned for 3.11.2001 but were not present, considering the fact of the period of custody of delinquents, 3.11.2001 being the last date for filing charge sheet, and as the application for discharge had not disposed of, Investigating Officers were directed to file necessary report under Section 173 of the Code of Criminal Procedure (hereinafter referred to as the Code) after complying the necessary formalities. It was observed that all the cases are considered as charge sheets though Investigating Officers have been directed to place it in the form of formal charge sheet against all the delinquents. Complainants were again summoned for 17.11.2001. The Investigating Officer was directed to comply with the formalities by putting formal charge sheet before the Court on 5.11.2001. It was directed that the applications for discharge will be considered after the report is filed by the Investigating Officers. The cases were adjourned to 17.11.2001. On 17.11.2001 the following order was passed:-

17.11.2002

Pr: Ld. APP for State

All the delinquent produced form OHB-II. I.O. has not complied with the direction of the court regarding to completion of the formalities with regard to the filing of formal charge sheet which was fixed for 5.11.01 and even today I.O. is not present. I.O. be summoned for 01/12/01.

sd/-

Presiding Judge

Juvenile Court.

7. The cases were adjourned to 1.12.2001. Radiologist was directed to be summoned for 7.12.2001. On the adjourned date the Court examined Radiologist to ascertain about the ages of the delinquents. They were thus declared to be juveniles on 7.12.2001. Court thereafter procured the presence of the complainants for 14.1.2002, on which date they were examined as C.W.1. The complainants did not identify the case property. At that stage also instead of passing appropriate orders discharging the delinquents, the cases were adjourned to 28.1.2002. On the adjourned date also cases were adjourned for today for consideration of charge.

8. Narration of above mentioned facts highlights to the incorrect and unwarranted procedure being followed by the Juvenile Court and the Investigating Agency. We are informed that this practice is being followed by some of the Metropolitan Magistrates requiring the Investigating Officers to file an application seeking discharge of the accused or the delinquent, instead of filing a report as envisaged under Section 173 of the Code. There appears to be some misconception on the part of the Magistrates and the Investigating Agency about the correct procedure to be followed and about the limits of the powers, duties and jurisdictions of the Investigating Agency and the Magistrates. We may now deal with the same.

9. In order, properly to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XII of the Code. That chapter deals with 'Information to the Police and their Powers to Investigate' and it contains group of sections beginning from Section 154, and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly deals with an information in respect of non-cognizable offences. Sub-section (2), of this section prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. In the matter of investigation into a cognizable offence it will be seen that large powers are conferred on the police. Sub-section (3), of Section 156, provides for any Magistrate, empowered under Section 190, to order an investigation. In case where a cognizable offence is suspected to have been committed, the officer in-charge of a police station, after sending a report to the Magistrate, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b), of the proviso to Section 157(1), gives a discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted by the police in the matter of a report to be sent to a Magistrate under Section 157. Section 159 gives power to a Magistrate, on receiving a report under Section 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 and 161 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements.

10. The power of police officers, in the matter of conducting searches during an investigation and the circumstances under which such searches are to be conducted are mentioned in Sections 165 and 166. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer, in-charge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer. Section 169 authorises a police officer to release a person from custody, in case he has been in custody, on his executing a bond, to appear, if and when so required before a Magistrate, in cases when, on investigation it appears to the officer, in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer, in charge of a police station, after investigation and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the part of police officer, making an investigation, to maintain a diary recording various particulars therein. Section 173 provides for an investigation, to be completed, without unnecessary delay and also makes it obligatory, on the officer in-charge of police station to sent a report to the Magistrate concerned in the manner provided for therein, containing the necessary particulars.

11. From the foregoing sections, occurring in Chapter XII, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. The entire scheme of Chapter XII makes it abundantly clear that the manner and method of conducting the investigation, are left entirely to the police. The Magistrate has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 enjoins upon the officer to release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly, if on the other hand, it appears to the officer in-charge of a police station, or to the officer making the investigation that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate; or if the offence is bailable to take security from him for his appearance before such investigation. Whether a case comes under Section 169 or under Section 170 of the Code, an obligation is cast under Section 173 on the police officer to submit a report to the Magistrate, in the manner indicated therein containing various details.

12. Sub-section (2)(ii) of Section 173 states that the official shall submit report in such manner as may be prescribed by the State Government stating the action taken by him, to the person, if any, by whom the information relating to the Commission of the offence was first given. As soon as the investigation is completed, the officer-in-charge of the police station, as required under Sub-section 2(i) of Section 173, is to forward to the Magistrate, empowered to take cognizance of the offence at a police station, a report in the form prescribed by the State Government setting out various particulars. The question as to whether the Magistrate has got power to direct the police to file a charge sheet on receipt of a report under Section 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.

13. The position when the Magistrate is dealing with a report submitted by the police that no case is made out for sending up of an accused for trial, which report is commonly called a "final report" is very clear from the various provisions mentioned above. If the Magistrate agrees with the said report he may accept the final report and close the proceedings in accordance with law. There may, however, be instances where Magistrate may take the view, on consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation. In that eventuality the Magistrate has ample jurisdiction to give appropriate directions to the police under Sub-section (iii) of Section 173 to make further investigation. In other words if the Magistrate feels, after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation, it is open to the Magistrate to decline to accept the final report and direct the police to make further investigation under Sub-section (iii) of Section 173 of the Code. The police after such further investigation may submit a charge sheet, or, again may submit a "final report" depending upon the further investigation made by it. If ultimately, the Magistrate forms the opinion that the fats set out in the "final report" constitute an offence he can take cognizance himself notwithstanding the contrary opinion of the police expressed in the "final report".

14. In the instant case after Test identification Parade was got conducted during the course of investigation, finding that there was no sufficient evidence or reasonable ground of suspicion to justify forwarding of the delinquent to the Magistrate, the Investigating Officer, instead of proceeding in accordance with the procedure laid down in Section 169, read with Section 173 of the Code filed an application before the Court seeking discharge of the delinquent. The Code of Civil Procedure requires submitting a report, as envisaged in Section 173 of the Code. The Investigating Agency is neither required nor obliged to move a separate application seeking discharge before submitting trial report. Once an information relating to commissioner of a cognizable offence has been reduced into writing i.e. a FIR has been registered, in so far as the Investigating Agency is concerned, its function is to complete the investigation in accordance with law and submit appropriate report before the concerned Magistrate. The report may be either a "final report", as envisaged in Section 169 of the Code or a "charge sheet" as envisaged in Section 170. The report so filed will have to be dealt with by the concerned Magistrate in accordance with the aforementioned procedure.

15. The first irregularity, which was committed was by the Investigating Agency was in having applied to the Court seeking discharge of the delinquent instead of sending a final report. In case the contents of the application seeking discharge are taken to be a report as envisaged under Section 169 of the Code or a final report, in that case the Juvenile Court committed grave irregularity in not dealing with it in accordance with law. Only in the event of the Magistrate not agreeing with the opinion expressed in the report, the Magistrate would yet jurisdiction to give appropriate directions to the police as envisaged under Sub-section (iii) of Section 173 to make further investigation. The Magistrate could not have directed the police to file a charge sheet. But as it was not a final report which was submitted but only an application seeking discharge of the Juvenile Court was not required to deal with such an application. In any case the Presiding Judge of the Juvenile Court proceeded to entertain the application but did not pass any order thereon rather the order passed was to direct the Investigating Officer to file charge sheet. Such a direction by the Presiding Officer of the Juvenile Court is unwarranted and uncalled for. Under no circumstance such a direction could have been issued to the police, as has precisely been so held by the Supreme Court in Abhinandan Jha and Ors. v. Dinesh Mishra . The Supreme Court held that there is no power expressly or impliedly conferred under the Code on a Magistrate to call upon the police to submit a charge sheet. The investigation under the Code takes in several aspects and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material collected, a case is made out, to place the accused before the Magistrate for trial. Submission of either a charge sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, is the final step in the investigation. The final step is required by the Code to be taken only by the police and by no other authority. On submission of such a report by the police, the Magistrate is not bound to accept the report, when he considers the matter judicially. Magistrate may accept or disagree with the opinion of the police and if he disagree he is entitled to take cognizance of the offence and issue appropriate direction for further investigation, as provided in law and as indicated above.

16. In the instant case a stage had not yet arrived when the Juvenile Court could have directed further investigation to be carried out. The Juvenile Court of its own directed the Investigating Officer to file charge sheet. Such an order was not only unwarranted but has been held to be without jurisdiction by the Supreme Court in Abhinandan Jha's case (supra) in which the Apex Court clearly pointed out that the functions of the Magistrate and the police are entirely different. It is the function of the police to form its opinion which is the final step in the investigation of submitting either a charge sheet or a final report, which function cannot be usurped by the Court. The Magistrate is entitled to accept or not to accept the report and may take suitable action according to law. He cannot infringe upon the jurisdiction of the police by compelling them to charge their opinion, so as to accord with his view.

17. In a subsequent decision in Bhagwant Singh v.

Commissioner of Police and Anr. the aforementioned position was reiterated. In the said case the question before the Court was that whether in a case where FIR is lodged and after completion of investigation police submits a report that no offence appears to have been committed can the Magistrate accept the report and drop proceedings without issuing to the first informant or to the injured. The question was answered holding that the Magistrate must give notice and hear the first informant.

18. Applying the ratio of the two decisions of the Apex Court, the act of the Investigating Officer in submitted an application for discharge was unnecessary and uncalled foreign contrary to the procedure established by law. The next step of the Presiding Officer of the Juvenile Court directed the Investigating Officer to file charge sheet was also wholly without jurisdiction. Pursuant to such unwarranted direction the Investigating Officer in a mechanical manner proceeded to file charge sheet as envisaged under Section 173 of the Code. Instead of dealing with the report in accordance with the procedure, as noticed aforementioned, the Juvenile Court again committed procedural irregularity straightaway in calling upon the complainants to appear. The complainants did appear. Their statements were recorded as C.W.1. From the statement of the complainants as recorded by the Juvenile Court, the delinquents were not found to be connected with the case property. Irrespective of all irregularities committed, at least after statement of the complainants had been recorded it was a fit case in which the delinquents ought to have been discharged forthwith and on the date when the complainants were examined. They ought not to have been continued to be again kept in custody in connection with the cases, since there was no offence alleged against them. Therefore, the orders passed on 14.1.2002 and on subsequent dates in not releasing the accused are contrary to law and are liable to be set aside. Ordered accordingly. All delinquents in six FIRs., namely, 275/2001, 325/2001, 346/2001, 375/2001, 427/201 and 437/2001 are ordered to be hereby discharged and consequently six cases stand disposed of finally.

19. We have perused the file of case State v. Rajesh etc. FIR No. 438/2001 of P.S. Mukherjee Nagar for offences under Sections 379/411/34 IPC. The delinquents in the said case are accused for having committed the offence punishable under Section 379/34 IPC. They are in custody and are being tried and the next date for prosecution evidence is 22.2.2002. As the delinquents are being tried in accordance with law no order is required to be passed at this stage in the said case. They will be produced before the Court on the date already fixed by the Juvenile Court for further proceedings in law.

20. Copy of this order will be placed on the record of each case and thereafter the files will be sent to the concerned court. A copy of the order will also be placed on the personal file of the Presiding Officers of the Juvenile Court.

21. The petition stands disposed of.