Nature of jurisdiction u/s 482 of the Cr.P.C for registration of a crime and investigation

20. The well-defined and demarcated functions in the field of crime detection by the police and its subsequent adjudication by the courts is so welt known and had been recognised way back in AIR 1945 18 (Privy Council) The Privy Council observed that just as it is essential that everyone accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. It is held: (AIR p. 22)

… In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and the order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervent in an appropriate case when moved u/s 491 Code of Criminal Procedure, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court’s functions begin when a charge is preferred before it and not until then. It has sometimes been though that Section 561-A has given increased powers to the Court which it did not posses before that section was enacted. But this is not so. The section gives to new powers, it only provides that those which the Court already inherently possess shall be preserved and in inserted, as Their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code of Criminal Procedure, and that no inherent power had survived the passing or that Act.

(Emphasis supplied)

21: In S.N. Sharma Vs. Bipen Kumar Tiwari and Others, this Court took the view that there is no mention of any power to stop an investigation by the police. The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, can the Magistrate intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquiry into the case. “The power of the police to investigate has been made independent of any control by the Magistrate.” It is further held: (SCC 657-58, para 11)

11…though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issues a writ of mandamus restraining the police officer, from misusing his legal powers.

22. This position has been further made clear by this Court in its authoritative pronouncement in State of Bihar and Another Vs. J.A.C. Saldanha and Others, hus: (SCC pp. 572-72, paras 25-26)

25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the Police Department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence u/s 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in Emperor v. Khwaja Nazir Ahmad….

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

(Emphasis supplied)

23. The observations of this Court in M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, in this regard deserve to be noticed. In the said case it was held; (SCC pp. 659-60, para 17)

17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.

24. In State of West Bengal Vs. S.N. Basak, this Court reiterated the principle that the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and that power of the police to investigate cannot be interfered with by the exercise of power under the inherent power of the High Court. In Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., his Court while explaining the nature and purport of the inherent jurisdiction of the High Court observed that in exercising jurisdiction u/s 561-A of the Code of Criminal Procedure, 1898, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquiry as to whether the evidence is “reliable or not”. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Code of Criminal Procedure the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Code of Criminal Procedure.

25. In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, his Court held that: (SCC p. 767, para 35)

35….the police authorities have under Sections 154 and 156 of the Code a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority, and even the High Court has no inherent power u/s 561-A of the Code to interfere with the exercise of that statutory power.

26. In State of West Bengal and Others Vs. Sujit Kumar Rana, this Court while dealing with the nature of inherent powers of the High Court held that the inherent power of the High Court is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amounts to abuse of the process of court. The power u/s 482 of the Code can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under the Code of Criminal Procedure.

27. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court u/s 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse’ of the process of court, and (iii) to otherwise secure the ends of justice.

28. Chandrachud, J. (as His Lordship then was), in Kurukshetra University and Another Vs. State of Haryana and Another, while considering the nature of jurisdiction conferred upon the High Court u/s 482 of the Code observed; (SCC p. 451, para 2).

2….It ought to be realised that inherent powers do not confer an arbitrary jurisdictional the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.


SOURCE :

SUPREME COURT OF INDIA

DIVINE RETREAT CENTRE   Vs.   STATE OF KERALA AND OTHERS [Decided on : 11-03-2008]