Minaketan Nayak And Others vs State Of Odisha And Others
2023 Latest Caselaw 1761 Ori

IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) No.14873 of 2022

       An application under Articles 226 and 227 of the
Constitution of India.

      Minaketan Nayak and others          ......   Petitioners

                               -versus-

      State of Odisha and others          .... Opposite Parties

Appeared in this case:-
    For Petitioners                Mr. B. Routray, S.K.
                                   Samal,    S.D. Routray, J.

Biswal, M. Panda, A.K.

Das and M. Padhi.

     For Opp. Parties                         Mr. P.K. Rout,
                                   Learned Addl. Government
                                                   Advocate

W.P.(C) Nos.14873, 13981, 15590, 17335, 15106, 16164, 16022, 15698, 14877, 15081, 15411, 15174, 16869, 17149, 17448, 18035, 18157, 18258, 18311, 18312, 18489, 18642, 18665, 19003, 19251, 19274, 19277, 19294, 19348, 19361, 19782, 19906, 20077, 20186, 20301, 20968, 21325, 21327, 21331, 21333, 21335, 21336, 21733, 21736, 21882, 22284, 22946, 23322, 23965, 23967, 23971, 23973 of 2022

CORAM:

JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 14.12.2022 | Date of Judgment: 24.02.2023 ______________________________________________________ // 2 //

A.K. Mohapatra, J. :

1. The present writ application along with a batch of similar

other writ application involving identical issue are taken up for

hearing and the same are being disposed of by the following

common order.

2. For the sake of brevity as well as convenience he facts

involved in W.P.(C) No.14873 of 2022 ( Manik & others-v.-

State of Odisha and others) is being taken up for analysis of

the facts involved in the batch of writ applications and

accordingly the present writ application is treated as lead matter

in the batch of cases.

3. The present writ application has been filed with a

prayer to quash the impugned Police Circular Order (PCO)

No.393 dated 21.05.2022 under Annexure-4 and the letter/order

dated 10.06.2022 issued by Opposite Party No.4 under

Annexure-7. In addition to the above prayer, the Petitioner has

also made a further prayer for a direction to the Opposite

Parties, more particularly, Opposite Party Nos. 2 & 3 not to act

in terms of the impugned PCO No.393 dated 21.05.2022 under

Annexure-4 and to allow the Petitioner to continue as

Constable as before without insisting on undergoing training or // 3 //

assigning any investigation work as has been directed by the

authorities by the impugned order under Annexure-4.

4. The factual matrix involved in the present writ

application as well as in the batch of other writ application in a

narrow compass is that the Petitioner along with other similarly

situated persons were selected as Constables by following a fair

and transparent selection procedure pursuant to an

advertisement issued by Opposite Party No.1 on different

occasions and keeping in view the eligibility requirements

under the advertisement like the educational qualification, age

etc. After their selection they were appointed as Constables on

different dates at different places in the State of Odisha.

5. When the Petitioners were discharged their duties as

Police Constables under different Police Stations in the State of

Orissa, the Opposite Party No.1 vide its Resolution No.358

dated 03.01.2019 directed the Opposite Party Nos. 2 & 3

regarding conferment of power of investigation on Graduate

Constables and Crime Intelligence Havildar. In the aforesaid

Resolution, it was also stipulated that such Graduate Constables

and Crime Intelligence Havildar would be provided

institutional training in any recognized institutions for 30 days.

On different aspects of investigation which will be followed by // 4 //

a practical training in Police Stations for further period of 45

days and thereafter an examination would be conducted on

successful completion of the training. On successful completion

of training and subject to passing in the examination, such

Graduate Constables and Crime Intelligence Havildars would

be conferred with power of investigation on ad hoc basis. The

aforesaid Resolution has also clarified that the Graduate

Constables and Crime Intelligence Havildar shall not be

entitled for any financial/service benefit on account of such

delegation of power of investigation.

6. Pursuant to the aforesaid Government Resolution

No.358(D) dated 03.01.2019, the Opposite Party No.2 i.e. D.G.

& I.G. of Police, Odisha vide Police Circular Order No.381 of

2019 intimated that willing Graduate Constables & Crime

Intelligence Havildar will undergo a period of basic training

as has been provided in the Government Resolution at different

Training Institutes for development and refining their skill in

the field of investigation. After successful completion of

institutional training and practical training in different Police

Stations and subject to their qualifying in the examination by

securing qualifying marks, the BPSPA would publish the final

result. The Trainees, who would successfully completing the // 5 //

training shall be conferred with power of investigation under

section 157 Cr.P.C. by the Superintendent of Police H.Qrs.

7. Clause-2 of the aforesaid Police Circular Order No.381

of 2019 provides that since it is only for willing Graduate

Constables and Crime Intelligence Havildar, the minimum

qualifying service period has been kept as five years of

completed service and it has also been provided that upon

conferment of power of investigation on selected Graduate

Constables and Crime Intelligence Havildars, they shall not be

entitled for any financial or service benefits merely because

they would be required to attend in the work of investigation.

8. It is relevant to mention here that under Rule 66(a) of

the PMR Rules, it has been provided that the Matriculate

Constables are entitled for promotion to the post of ASI, who

has seven years of service experience subject to their qualifying

in the training for a period of four months. Such training would

include one month institutional basic training at the designated

training institution and three months practical training in Police

Station and further they shall also be required to pass the final

examination to be conducted by the authorities. It may not be

out of place to mention here that in the State of Odisha, the last // 6 //

advertisement for promotion of Havildar to the post of A.S.I.

was held in the year 2019 and the present Petitioner, who is the

Graduate Constable had applied for promotion, but

unfortunately, he could not be selected for promotion to the

post of ASI. The power of investigation as has been provided

under Section 157 Cr.P.C and under Rule 660(c) of PMR Rules

lies with the A.S.I. However, the Opposite Party No.1 vide its

Resolution, for the first time, intended to confer such power of

investigation in the Graduate Constables which is basically a

job of an officer i.e. a promotional post for the Constables.

9. On 18.05.2022 the Opposite Party No.3 issued a letter

to Additional D.G. of Police, Training and Director, BPSPA

requesting them to send the joining instruction and training

calendar and instruction to District Superintendent of Police to

intimate the eligible Constables for training by giving due

weightage to the seniority of BRS candidates. The Opposite

Party No.3, i.e. the D.G. of Police, Odisha without taking any

prior approval from the Home department, Government of

Odisha and other competent authority in supersession of PCO

Order No.381 of 2019 issued the present PCO dated 21.05.2022

and change the eligibility, training and other modalities // 7 //

including the willingness of Graduate Constables to undergo

such training.

10. Additionally, the Home Department, Government of

Odisha vide its Resolution dated 358 dated 03.01.2019 and the

Opposite Party No.2 vide Police Circular Order No.381 of 2019

fixed the minimum qualifying service and syllabus for such

Graduate Constables and Crime Intelligence Havildar for

conferring upon them the power of investigation which

otherwise lies with the Officers designated by the Government

under Section 157 Cr.P.C. Moreover, the Opposite Party No.3

issued the impugned PCO No.393 dated 21.05.2022 in

supersession of earlier PCO issued by the Office of Opposite

Party No.3. Therefore, it has been pleaded in the writ petition

that the later PCO No.393 dated 21.05.2022 issued by Opposite

Party No.3 is in contravention of PCO No.381 of 2019 which

was issued with the concurrence of the State Government. As

such, the same is contrary to the Police Act, 1861 and the PMR

Rule and therefore the same is unsustainable in law.

Challenging such impugned PCO dated 21.05.2022 the present

writ application has been filed.

// 8 //

11. Heard Mr. B. Routrary, learned senior Advocate for the

Petitioner and Mr. P.K. Rout, learned Additional Government

advocate for the State-Opposite Parties. Perused the pleadings

of the Opposite Parties as well as the documents annexed

thereto and relied upon by the learned counsel appearing for the

respective parties.

12. Mr. Routray, learned senior counsel appearing for the

Petitioner at the outset submitted that Graduate Constables and

Crime Intelligence Havildar can also investigate criminal cases

if the Officer-in-Charge of the Police Station deputes them for

such purpose, however, they will not be entitled for any

financial/service benefits as has been decided by the Home

Department, Government of Odisha vide its Office Order

No.345 dated 03.01.2019. After passing of the Office Order

No.345 dated 03.01.2019, the Home department, Government

of Odisha omitted Rule 158 of Odisha Police Rule. Again, on

the very same day i.e. on 03.01.2019 a Resolution No.358 was

issued by the Government enlisting the Act and Offences under

the Indian Penal Code in respect of which the investigation

could be done by the Graduate Constables and Crime

Intelligence Havildar.

// 9 //

13. It is also contended by Mr.Routray, learned senior

counsel that the I.G. of Police wrote a letter to the Additional

D.G. of Police Training and Director of BPSPA enclosing

therewith number of Graduate Constables of various districts

and requested him to conduct the training programme and

further he was also requested to send joining instruction and

training calendar to nominate eligible constables for training by

giving due weightage to their seniority under intimation to the

Office of the I.G. Thereafter on 21.05.2022 the Opposite Party

no.3 issued Police Circular Order No.393 dated 21.05.2022

laying down the eligibility criteria and the syllabus for training

for Graduate Constable and Crime Intelligence Havildar.

Challenging the said Police Circular Order dated

21.05.2022,the present writ application has been filed.

14. Mr. Routray, learned senior counsel assailed PCO

No.393 dated 21.05.2022 on three major grounds. Firstly, the

PCO has been issued without concurrence of the State

Government and the Home Department, secondly, the

willingness of the candidates which was their earlier has been

obliterated under the new PCO and thirdly although the GC and

CIH would be required to do the investigation work by

conferring upon them the power of investigation. They have not // 10 //

been given any additional financial/service benefit.

Accordingly, learned senior Counsel appearing for the

Petitioner contends that the PCO dated 21.05.2022 is

unsustainable in law inasmuch as the same is not reasonable,

discriminatory and arbitrary in nature.

15. On perusal of records, this Court observes that on

10.06.2022 the D.G. & I.G. of Police, Odisha issued a letter to

all the Superintendent of Police in the State wherein it was

directed to impart in-service training course with GC and CIH

on investigation skill for a duration of 30 working days with 45

days of practical training which would start from 30.06.2022.

This Court by virtue of an interim order has stayed the

operation of letter dated 10.06.2022 and such interim order is

still in force.

16. In course of argument, the attention of this Court was

drawn to Section 157 Cr.P.C. and Police Act 1861 and the

P.M.R. Rules. In the context of power of investigation has not

been conferred on Graduate Constables and Crime Intelligence

Havildar. It is submitted by the learned counsel for the

Petitioners in the batch of writ application that in view of

Section 157 Cr.P.C. the power of investigation has been // 11 //

conferred upon the A.S.I. of Police and further it was submitted

that the post of A.S.I. of Police is a promotional post of

Constable.

17. Next, it is contended by the learned counsel appearing

for the Petitioners in the batch of matters led by Mr.Routray,

learned senior counsel that although the Home department,

Government of Odisha, Opposite Party No.1 issued the

Resolution and conferred with power of investigation on the

Constables subject to their qualifying in the examination to be

conducted by the Police department, such a Resolution is in

conflict with Section 157 Cr.P.C. and as such the same is

unsustainable in law. It is further contended that without

designating the Petitioner and similarly situated other GC and

CIH as subordinate officers, the Government could not have

conferred power of investigation on them that too without any

financial and service benefit. It was also argued that the

conduct of the Opposite Parties in the present case by

conferring additional burden without any financial and service

benefit tantamount to exploitation of Police force.

18. The attention of this Court was also drawn to Rule 8(a)

of PMR Rules whereunder the duty of the Inspector General // 12 //

has been clearly delineated and for better understanding the

same has been quoted herein below.

"8(a) The Inspector General-the Administration of Police through the General Police district of Orissa is invested in the Inspector General, who is responsible to Government. Besides the power given to him by Section 12 of the Act V of 1861, he is authorized without reference to Government, to issue circular orders on matters of routine or in order to simply and explain previous orders, provided that on circular dealing with a point of law shall be issued until proved by the Legal Remembrance"

By referring to the aforesaid Rule, learned counsel

appearing for the Petitioner submitted that apart from the Police

Administration and the routine nature of work, any other issue

including Rules on the point of law cannot be framed by the

Inspector General without reference to the Government and

further any other issue involving any point of law as has been

referred to in Rule 8(a) of PMR Rule has to be proved by the

Government as provided under section 12 of the Police Act,

1861. In this context learned counsel for the Petitioner also

refers to Section 12 of the Police Act which has been quoted

herein below.

12. Power of Inspector General to make Rule-

The Inspector general of Police may, from time to time to the approval of the State Government frame such orders and Rules as it shall deem expedient relating to the organization, classification and distribution of Police Force, the // 13 //

placed members of the force shall reside and particular services to be performed by the approval from the State Government." counsel for the Petitioner.

19. Referring to the provisions contained in the aforesaid

Section 12 of the Police Act 1861 learned counsel appearing for

the Petitioner submitted that the impugned order i.e. PCO

dated 21.05.2022 has been issued by the Director General of

Police, Opposite Party No.3 without taking any prior approval

from the Government. Therefore, the same is hit by Section 12

of the Police Act and as such unsustainable in law. It is further

contended that the D.G. of Police is devoid of any power to

issue a PCO in supersession of the earlier PCO issued by the

D.G & I.G. of Police (Opposite Party No.2) without taking

prior approval from the Government.

20. In the context of willingness of the candidates to

undergo the training as has been proposed by the Government

and the PCO, it is submitted by the learned counsel for the

Petitioners that the Superintendent of Police of some districts

like Nawarangpur, Cuttack and Keonjhar and many other

districts have suggested names of willing GC & CIH to

undergo such training after obtaining their consent. Referring to

some of the letters issued by the Superintendent of Police of // 14 //

different districts, learned counsel for the Petitioner submitted

that such letter revels that willingness of the GC & CIH was

first sought for to undergo such training for the purpose of

conferring upon them the power of investigation. Therefore, it

is submitted that it is only willingness of GC&CIH who were

sent for training as has been prescribed in the PCO dated

21.05.2022. It was also argued that different districts are

adopting different standards in the State of Odisha i.e. while

some districts are seeking for willingness to undergo such

training. At the same time, some of the districts are compelling

the GC & CIH to undergo such training against their will and

consent. Therefore, it is argued that such conduct of the

Opposite Parties amounts to creation of a class within the same

class which is hit by the underlining principle of Article 14 of

the Constitution of India.

21. Learned counsel for the Petitioner further informs this

Court that the proposed training of Graduate Constable and

Crime Intelligence Havildar for a duration of 30 working days

with 45 days practical training for the first batch which are

supposed to start from 20.06.2022. It was decided by the

Opposite Parties that a total number of 261 Constables were

deputed for training for the first batch. Learned counsel for the // 15 //

Petitioners expresses that since some of the Petitioners were

appointed in 1990, considering their seniority, it is most likely

that the Petitioners would be compelled to undergo such

training against their will and consent. It is also argued that the

same is not the case in respect of Keonjhar and Nawarangpur

district where the willingness of the GC & CIH have

specifically obtained before finalizing the names of candidates

who would undergo training. Thus, it is argued that such

conduct of asking for consent in some cases and compelling the

candidates in other district is highly discriminatory and as such

violates Articles 14 and 16 of the Constitution of India. It was

also brought to the notice of this Court that a large number of

post of ASI of Police are still lying vacant in the State of

Odisha. However, due to inaction of the Opposite Parties such

posts are not being filled up, thereby depriving some of the

Petitioners the opportunity to get promotion to the rank of ASI.

It was also argued that without giving promotion to the post of

ASI (which is a subordinate officer post), the Petitioners are

being burdened with additional responsibility of investigation

without providing the financial and service benefits which is

attached to the post of ASI.

// 16 //

22. (23)A counter affidavit has been filed on behalf of the

Opposite Party Nos.1 to 3. In the said counter affidavit, at the

outset, it has been stated that the writ petition is not maintainable

on facts as well as law. Further, it has been stated in the counter

affidavit that pursuant to Section 157 of the Cr.P.C., the

Government of Odisha, Home Department vide Order

No.345/D&A dated 03.01.2019 has prescribed that qualified

Graduate Constables and Criminal Intelligence Havildars as the

case may be deputed by the Officer-in-Charge of a Police Station

to proceed to the spot to investigate the facts and circumstances of

the case in petty offences and if necessary, to take measure to

recovery and arrest of the offender. It has also been stated that

power of investigation of cognizable offences are being

conducted by the Officers in the rank of Inspectors, Sub-

Inspectors and Assistant Sub-Inspectors whereas DSP having

supervisory power conducts investigation of cases under the S.C.

& S.T.(PoA) Act, UPA Act and other important cases. Since a

number of cognizable cases are increasing in the State of Odisha

and such cases are being registered at different Police Stations of

the State, as a result of which, the work burden on the

Investigating Officers has increased drastically and further the

same also requires proper assistance by the competent police // 17 //

personnel. Such officers besides performing multiple duties like

law and order, intelligence collection, traffic duty, VIP duties etc.

are also required to take up the investigation work.

23. In the counter affidavit, it has also been stated that for

proper investigation, adequate number of officers are required and

accordingly sanctioned strength of officers has to be enhanced by

following the due recruitment process. However, to tackle the

situation, it was decided by the Government that the power of

investigation in certain categories of cognizable cases could be

conferred and Criminal Intelligence Havildars (in short 'the C.I.

Havildars') as is being followed in the State of Andhra Pradesh,

Telengana, Tamil Nadu, Kerala, Maharashtra, Pubjab, Madhya

Pradesh and Delhi. It has also been avoided in States like Delhi

and Kerala, job has been entrusted to constables. The decision to

confer of power of investigation on Constables and the C.I.

Havildars would define supplement Investigating Officers to a

large extent thereby facilitating a much more and efficient

investigation with all promptitude. Entrustment of investigation of

petty offences like under Sections 294, 323, 341, 337, 338, 447

and 506, I.P.C. would reduce the burden of work of the // 18 //

Investigating Officer and hence, they can divert more quality time

in investigation of involving major offences.

24. To justify the decision taken by the Government in the

counter affidavit a statistical picture of Odisha Police has already

been broader. It has been stated that strength of Odisha Police is

about 72,145 which includes around 55,000 Constables. Out of

which, 8,000 Constables have been deployed in all 612 Police

Stations across the State. Said Constables are mainly used for

station watch duty, escorting duty, handing of daks/files, assisting

senior officers during investigation. Since many of the Constables

employed are Graduates Constables having expert in computer

skill, Government of Odisha took a decision to engage such

Graduate Constables, who are otherwise qualified to take up the

job of investigation, in investigating cases involving in petty

offences thereby reduce the work burden of the Investigating

officers. This is more so as Odisha Police is running with shortage

of Investigating officers. Therefore, taking into consideration the

proposal submitted by the State Police Headquarters and after a

careful examination of the proposal, the State Government has

taken decision to reform the Odisha Police by exercising power

conferred under Section 157 of the Cr.P.C. and accordingly, the // 19 //

Resolution No.358/D&A dated 03.01.2019 has been issued

empowering the Graduate Constables and C.I. Havildars to take

up investigation, in cases involving petty offences, which have

been specifically mentioned in the resolution. Further, it has been

made clear that offences involving punishment more than three

years, IIC/OIC shall take over the investigation either himself or

shall transfer investigation to any other officer empowered for

investigating such offences.

25. In view of the aforesaid logic, the Government of Odisha

by invoking power under Section 157 of the Cr.P.C. has issued

Resolution dated 03.01.2019 and thereby it has been prescribed

that petty offences, which are punishable up to three years may be

investigated by Graduate Constables or C.I. Havildars. Further in

order to have proper control and supervision over the

investigation, the OIC, IIC of the concerned Police Stations have

been authorized to supervise the investigation conducted by the

Graduate Constables and C.I. Havildars. Before undertaking

investigation under the resolution dated 03.01.2019, the Graduate

Constables and C.I. Havildars would be provided institutional

training in the Police Training Institute for 30 days and different

aspects of investigation followed by practical training in Police // 20 //

Stations for a further period of 45 days. Thereafter, an

examination shall be conducted on completion of the training and

upon successful passing out the examination, Graduate

Constables and C.I. Havildars shall be conferred with power of

investigation. At present 33 sections, the investigations are being

conducted by the (Assistant Sub-Inspector 'ASIs'). Henceforth,

the Investigation in such cases shall be handed over to the trained

Graduate Constables and C.I. Havildars and accordingly, the

services of ASIs can be better utilized in investigating into other

important cases.

26. In the counter affidavit, it has also been pleaded that the

aforesaid decision of the Government would help in prompt and

quality investigation of cases with clearance of massive backlog

at police station level and this process would also help infringing

the rate of conviction for effective implementation of the order,

modalities have been drawn to select the capable Constables and

Havildars for the investigation work and they will also be trained

in all aspects of investigation starting from registration of F.I.R. to

submission of Final Form. It has also been stated that upon

completion of successful training and after successful passing out

the examination, the Graduate Constables and C.I. Havildars will // 21 //

be conferred with power to investigate under Section 157 of the

Cr.P.C. The earlier circular dated25.07.2019 has also been

partially modified by Police Circular Order No.393 dated

21.05.2022.

27. Accordingly vide Police Circular Order No.393 of 2022,

Biju Pattnaik State Police Academy (BPSPA), Odisha was

requested to conduct the training programme as per the approved

syllabus vide letter dated 18.05.2022 and all Police Districts were

requested to short-list and depute eligible Graduate Constables

strictly giving due weightage to their seniority and other criteria

as per PCO No.393 dated 21.05.2022. The training of first batch

of Constables has already been commenced w.e.f. 20.06.2022. An

examination is likely to be conducted very soon after successful

completion of training programme.

28. To facilitate the confirmation of power of investigation of

Graduate Constables and C.I. Havildars, Rule 58 of the Odisha

Police Rules, has been suitably amended / omitted in exercise of

power under Section 46 of the Police Act and the Resolution

No.358/D&A dated 03.01.2019 has been notified laying down

certain guidelines for conferring the power of investigation upon

Graduate Constables and C.I. Havildars to conduct the // 22 //

investigation. Further the Order No.345 / D&A dated 03.01.2019

has been issued by Government of Odisha in exercise of powers

conferred by Section 157 of the Cr.P.C. pursuant to Resolution

No.358 / D&A dated 03.01.2019, Police Circular Order

No.381/2019 by the Director General of Police and Inspector

General of Police, Odisha, Cuttack dated 25.07.2019. Further, the

Inspector General of Police(Personnel), Odisha issued a letter

dated 18.05.2022 to the Additional Director General of Police,

Training and Director of BPSPA Odisha requesting him to

conduct the training programme as per the approved syllabus. The

Director General of Police, Odisha, Cuttack in supervision of

Police circular Order No.381/2019 issued Police Circular Order

No.393 dated 21.05.2022 thereunder prescribing eligibility,

training and other modalities to be followed. Therefore, it is

submitted by learned counsel for the State that the same is neither

illegal nor arbitrary and in violation of Articles 14 and 26 of the

Constitution of India.

29. With regard to willingness sought for by the

Superintendent of Nabarangpur, it has been stated in the counter

affidavit that such willingness might have been sought for

pursuant to Police Circular Order No.381 of 2019, however, the // 23 //

same has been superseded by Police Circular Order No.393 dated

21.05.2022. As such, the requirement of sending willingness is no

more in force. As such, no certain willingness by some of the

Superintendents of Police in respect of some other districts does

not in any manner amount to discrimination as the same has not

been acted upon or given effect to.

30. It is submitted by learned counsel for the State that by

referring to Rule-660(a) of Odisha Police Rules, which speaks

about the appointment of Assistant Sub-Inspectors and as per the

said rules constable may be allowed to officiate A.S.I. after seven

years of service as per the procedure laid down with due regard to

the vacancy of position, seniority, suitability after being

successful in the written examination whereas as per eligibility

criteria as mentioned in the Police Circular Order No.393 dated

21.05.2022, Graduate Constables and Crime Intelligence

Havildars, who have completed qualifying service of minimum 4

years as on 1st January of the year are eligible for training and

other modalities to undertake investigation after the training.

31. It was also submitted by learned counsel for the State that

at present the Inspector, Sub-Inspector and Assistant Sub-

Inspectors of Odisha Police are performing the multifarious duties // 24 //

besides conducting investigation in all types of cognizable

offences. Therefore, such officers are burden with work leading to

huge backlog of cases under investigation at different Police

Stations of the State. Such, pendency of cases persuaded the

Government of Odisha to take a decision and notify Resolution

No.358 / D&A dated 03.01.2019 and as such, it was decided to

confer the power of investigation of certain selected Graduate

Constables and C.I. Havildars subject to their eligibility,

suitability and seniority.

32. So far under Section 157 of the Cr.P.C. is concerned, the

learned Additional Government Advocate would argue that in

view of such provisions in Cr.P.C., the Government can prescribe

any police personnel for investigation and accordingly, no fault

can be found with the Government in taking a decision to confer

the power of investigation to Graduate Constables and C.I.

Havildars by passing Resolution No.358 dated 03.01.2019

thereby permitting to investigate them in petty offences where the

period of punishment is up to three years. Further, referring to

Rule-660(a) of the Orissa Police Rules, it was also submitted that

the next promotional posts of the Graduate Constables and C.I.

Havildars i.e. after completion of seven years of qualifying // 25 //

service they will be eligible for promotion to the next higher rank

i.e. A.S.I. Therefore, it was argued that since the Government is

providing training to the Graduate Constables and C.I. Havildars

and in the process, preparing them for the next promotional posts,

no financial benefits or service benefits has been allowed for such

institutional training.

33. With regard to willingness for training, it was submitted

by learned Additional Government Advocate that seeking

willingness from the said Graduate Constables and C.I. Havildars

is no more requirement of law in view of the police circular order

no.381 of 2019 dated 25.07.2019 as the same has been superseded

by the police circular order No.393 dated 21.05.2022.

Accordingly, it was further submitted that the question of seeking

willingness of some Graduate Constables and C.I. Havildars in

respect of some districts having not given their specific

willingness is no more available for consideration in view of the

latest Police Circular dated 21.05.2022. He would also argue with

empowered Graduate Constables and C.I. Havildars with the

power of investigation is a step in the right direction to facilitate

prompt and quality investigation of petty offences having

prescribed punishment up to three years.

// 26 //

34. Having heard rival contentions raised by learned counsels

appearing for the respective parties, and upon a careful

conspectus of the factual background, this Court is of the prima

facie view that management supervision and deployment of police

force comes within the sole domain of the Home Department,

Government of Odisha as well as State Police Administration. In

such view of the matter, the intervention of this Court is not

desirable so far training and deployment of police personnel are

concerned, more so, when an attempt is being made, although a

bit made, to reduce the huge pendency of cases under

investigation at different Police Station level. Therefore, this

Court would never consider the matter had it been a case of

simple police force management, deployment/re-deployment of

forces or re-casting the duties of police personnel, they are

required to do in course of their service. However, keeping in

view the complex nature of problem and the additional duty that

is being delegated to the Graduate Constables and C.I. Havildars,

which they are not performing earlier, this Court deems it proper

to analyze the factual scenario as well as legal position and the

financial issue.

// 27 //

35. So far the legal issue involved in the present case is

concerned, this Court is required to deal with Section 156 of the

Cr.P.C. which provides the procedure for investigation and

Section 156 of the Cr.P.C. both provisions have been extracted

herein below:-

"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."

36. Upon a careful reading of Section 156 of the Cr.P.C., it

appears that the same specifically provides for Police Offices

power to investigate cognizable cases. 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

enquire into or try under the provisions of Chapter XIII.

Therefore, such a provision clearly reveals that cognizable cases // 28 //

can only be investigated by police officer and when the order of a

Magistrate Sub-section (3) of Section 156 provides that a

Magistrate is also competent and is empowered under Section 190

may also order such an investigation as provided under Sub-

section(1) of Section 156 of the Cr.P.C. Therefore, Police Officer

authorized for the purpose can only investigate into cognizable

cases and none- else.

37. In a case of Rasiklal Dalpatram Thakur vrs. State of

Gujarat : reported in AIR 2010 SC 715, Hon'ble Supreme Court

held that it is not within the jurisdiction of the Investigating

Agency to refrain itself to hold proper and complete investigation

merely upon arriving at a conclusion that the offences had been

committed beyond its territorial jurisdiction and that the power

vested in the Investigating Agency under this Section does not

restrict the jurisdiction of the agency to investigate into a

complete even if we do not have any territorial jurisdiction to do

so. In the case of Naresh Kavarchand Khatri vrs. State of

Gujarat: reported in (2008) 8 SCC 300, Hon'ble Supreme Court

has also observed that Cr.P.C. conferred power on the statutory

authorities to direct transfer of investigation from one Police

Station to another, in the event it is found that did not have any // 29 //

jurisdiction in the matter and that the Court should be interfered in

the matter at an initial stage in regard thereto. Further, it was held

that if it is found that the investigation has been conducted by an

Investigating Officer, who do not have territorial jurisdiction in

the matter, the same should be transferred by him to the Police

Station having requisite jurisdiction.

"157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that-

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-

// 30 //

section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

On a careful reading of Section 157 (1) Cr.P.C., this

Court observes that the Officer-in-Charge of a Police Station

has been conferred with power to investigate pursuant to a

complaint lodged under section 156 Cr.P.C. and such Officer

shall forthwith send a report to a magistrate empowered to take

cognizance of such offence upon a Police report and the

Officer-in-Charge shall proceed in person, or shall depute one

of his subordinate officers not below such rank as the State

Government may, by general or special order, prescribed in this

behalf, to proceed to the spot to investigate the facts and

circumstances of the case and if necessary shall also take

measure for discovery and arrest of the offender. Therefore, the

power of investigation under section 157 Cr.P.C. has been

clearly conferred upon the Officer-in-Charge of the Police

Station who may depute one of his subordinate officers ( not

Havildar or Constable) for the purpose of such investigation.

However, in the present case even if it is accepted that GC and

CIH are given training as has been prescribed in the

Government Resolution as well as PCO dated 21.05.2022, they // 31 //

cannot be termed as Officers as has been prescribed under

section 157 Cr.P.C. Therefore, it is argued by the learned

counsel appearing for the Petitioner that unless, the trained GCs

and CIH are designated as Officers by the State Government

they cannot conduct the investigation directly as has been

intended in the Government Resolution as well as the PCO

dated 21.05.2022. Furthermore, in the event the GCs and CIHs

are to be used in the investigation of cases, they are to be

designated as subordinate officers and to be notified as such by

the State Government by a general or special order. In such

view of the matter, learned counsel appearing for the Petitioner

took a common stand that if the GC and CIH are to be

conferred with power of investigation then they are to be

promoted to the rank of subordinate officer i.e. A.S.I., which is

the promotional post in the present case or any other post of

officer by amending the Rules suitably.

38. The provisions contained in Section 157, Cr.P.C. provides

for the procedure for investigation. It also provides that where an

Officer in-Charge of a Police Station has reason to suspect the

commission of an offence which he is empowered under Section

156 of the Cr.P.C. to investigate, he shall forthwith send a report

for the same to a Magistrate empowered to take cognizance of // 32 //

such offences upon a police report and shall proceed in person or

shall depute one of his Sub-ordinate Officer not below such rank

as a State Government may, by general or special order prescribed

in this behalf, to proceed, to the spot, to investigate the facts and

the circumstances of the case and if necessary, to take measures

for the discovery and arrest of the offender. Further proviso (a) of

Section 157 (1) also provides when information as to commission

of an offence is given any person by name and the case is not of a

serious nature, the Officer in-Charge of a Police Station may not

proceed in person or depute a Sub-ordinate Officer to make an

investigation on the spot. Therefore the language employed in

Section 157 of the Cr.P.C. is very clear and the intention of the

legislature in framing Section 157 of the Cr.P.C. would very well

be gathered from the language employed in Section 157 of the

Cr.P.C. Section 157(1) of the Cr.P.C. clearly provides that the

Officer-in-Charge of a Police Station shall forthwith send a report

of the same to a Magistrate empowered to take cognizance of

such offence upon a police report and shall proceed in person or

shall depute one of his Sub-ordinate Officer not below such rank

as the State Government may by general or special order

prescribed in this behalf. Therefore, on a plain reading of Section

157(a), it is very clear that the Officer-in-Charge of the Police // 33 //

Station is to investigate into the case himself and submit police

report or he shall depute a Sub-ordinate Officer not being below

such rank as the State Government may prescribe. This means

either Officer-in-Charge or any one of the Officer available at the

Police Station not below the rank of any officer prescribed by the

State Government can investigate and submit a report to the

Magistrate.

39. Proviso(a) to Section 157(1) also makes it abundantly

clear that where the case is not a case of serious nature, the

Officer-in-Charge of the Police Station need not proceed in

person or depute Sub-ordinate Officer to make an investigation on

the spot. Thus, in a case involving allegation of not serious nature,

the Officer-in-Charge of the Police Station need not make

investigation on the spot or need not even depute a Subordinate

Officer to investigate at the spot. As such, investigation involving

cases of non-serious nature need not be investigate by any Officer

by going to the spot. Thus, a plain reading of Section 157(a) of

the Cr.P.C., makes it amply clear that a duty is caste upon the

Investigating Officer, who is a designated Police Officer, to

forthwith send the report of the cognizable offences to the

concerned Magistrate.

// 34 //

40. In such view of the matter, this Court by no stretch of

imagination could presume that the legislatures while enacting

Sections 156 and 157 of the Cr.P.C. were not aware of the

meaning of the word "Officer". Furthermore, while providing

that the cases are to be investigated by the Officer-in-Charge of

the Police Station, it has also been provided that in course of

investigation the OIC / IIC cannot send a person to the spot for

investigation who is below the rank of an Officer as has been

prescribed by the State Government in this behalf. In view of the

language employed in the aforesaid two Sections, this Court has

no hesitation in holding that the cases are to be investigated and

the police report is required to be submitted to the Magistrate by

the Police Officer, their designation may vary depending upon the

notification.

41. At this juncture, it would be pertinent to refer to

definitions as provided under Section 2 of the Code of Criminal

Procedure, 1973. Although the word 'officer' has not been

defined in the Cr.P.C., the words "officer-in-charge of a Police

Station" has been defined in Section 2(o) of Cr.P.C. which has

been extracted herein below:-

"(o) " officer in charge of a police station" includes, when the officer in charge of the police // 35 //

station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station- house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;"

A close scrutiny of the aforesaid provision in Cr.P.C.

makes it abundantly clear that any officer above the rank of

constable can act as an officer-in-charge of a Police Station when

the regular officer-in-charge is absent from the station house.

Therefore, the post of constable can never be equated with the

post of officer of whatsoever designation. In such view of the

matter, this Court has no hesitation to come to a conclusion that

either the Graduate Constables or Crime Investigation Havildars

can never be equated with an officer in the police department.

Moreover, to carry out the duties which have been assigned to

them by virtue of impugned circular and as has been provided

under Sections 156 and 157, Cr.P.C., the Graduate Constables as

well as Crime Investigation Havildars are to be first designated as

officer for the purpose of Sections 156 and 157, Cr.P.C. by either

promoting them to the existing post of officers by creating new

posts of junior officer in the cadre. Further, it is needless to

mention that such promotion to the post of officer or any other

designation from the post of G.Cs. and C.I. Havildars would also // 36 //

accompany with it and enhancement in their remuneration either

by fixing a higher scale of pay or by providing them some

allowance/increment. This is more so, once such employees are

upgraded from G.Cs. and C.I. Havildar to the rank of officers,

they will be required to perform duties with enhanced

responsibility.

42. In view of the aforesaid analysis of law as well as factual

background of the present case, this Court has no hesitation in

coming to the conclusion that the Police circular Order No.393

dated 21.05.2022 conferring power of investigation on constables

and C.I. Havildars is unsustainable in law. Therefore, the same is

hereby quashed. Further, letter dated 10.06.2022 under Annexure-

7 written by the IG of Police Training, BPSPA, Odisha to All

District Superintendent of Police requesting them to send

Graduate Constables and C.I. Havildars for in-service training

pursuant to PCO No.393 dated 21.05.2022 is also unsustainable in

law in view of the fact that PCO No.393 dated 21.05.2022 has

been quashed by this Court. Accordingly, the said letter dated

10.06.2022 under Annexure-7 is also hereby quashed.

Before parting this Court would like to observe that

keeping in view the rise in number of cases, awaiting // 37 //

investigation and further taking into consideration the public

interest involved, this Court is of the view that the Home

Department, Government of Odisha shall do well to consider the

whole issue afresh and after due deliberation bring a fresh police

circular order in consonance with Sections 156 and 157, Cr.P.C.

as well as the Police Act and Manual and till such time, the earlier

Police Circular Order shall remain operative.

43. In the result, the writ petitions stand allowed. However, in

the facts and circumstances, there shall no order as to cost.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 24 th of January, 2023/ RKS&Jagabandhu.