IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.996 of 2007 LALU SINGH, Son of Sheoji Singh, Resident of village-Nethua, P.S. Marhaura, District-Saran at Chapra. Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: Mr. S.B.K. Manglam, Advocate For the State: Mrs. Nilu Agawal(G.A-10) Mr. Krishna Murari Prasad A.C. to G.A.-10 6. 23.03.2009 Marhaura P.S. Case No.148 of 2004 under Section 302/34 of the Indian Penal Code and 27 of the Arms Act was instituted by the informant Shail Kumari Devi against the petitioner and four others named on 10.8.2004. The fardbeyan of the F.I.R. was recorded by S.I., C. N. Jha, the officer-in- charge of the P.S. who also himself took up investigation of the case. Subsequently, by an order of the Director General of Police, Bihar, the investigation was handed over to the C.I.D., Bihar. Accordingly, the investigation into the offence was conducted by C.I.D. and on conclusion of investigation, charge sheet for the offences under Section 302/34 of the Indian Penal Code and 27 of the Arms Act was submitted by Inspector, C.I.D., Bihar against the petitioner and three others. The charge sheet along with the case diary containing the evidences collected during investigation was placed before the Chief Judicial Magistrate, Saran at Chapra who, on consideration of the materials took cognizance of offence against the petitioner and others directing for their trial for the offence. The question raised by the petitioner is a point of law. - 2 - It is submitted that under Section 173(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as to the code) only an officer-in-charge of the a police station has authority to file a charge sheet and that the Inspector of C.I.D. not being the officer-in charge of a police station has no authority to file a charge sheet and that, therefore, the charge sheet submitted by the Inspector, C.I.D. should be quashed as unwarranted. In support of his submission, the petitioner cited the case of M.C. Mehta versus Union of India reported in (2007)1 Supreme Court cases 110 wherein the Apex Court has held that under Code of Criminal Procedure, investigation consists proceeding to the spot, ascertainment of facts and circumstances of the case, discovery and arrest of suspected offender, collection of evidence and formation of opinion as to whether on the materials collected there is a case to place the accused before a Magistrate for trial, and if so, taking the necessary steps for the same by filing a charge sheet under Section173(2) of the Code of Criminal Procedure. The scheme of Code of Criminal Procedure shows that while it is permissible for an officer-in-charge of the police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for each one of the above steps is that of the officer-in-charge of the police station. The final step in the investigation, namely, the formation of the opinion as to whether or not there is a case to place the accused on trial is to be of officer- in- charge of the police station and this function - 3 - cannot be delegated and can be performed by no other authority. The formation of the opinion of the police on the materials collected during investigation as to whether judicial scrutiny is warranted or not is entirely left to the officer-in- charge of the police station. There is no provision for delegation of above function regarding formation of opinion but only a provision entitling superior officers to supervise or participate under Section 36 of the Code of Criminal Procedure. Referring to as has been held above by the Apex Court it was argued by the leaned counsel for the petitioner that under Section 173(2) of the Code of Criminal Procedure, the final report of any investigation can only be submitted or filed by an officer-in-charge of the concerned police station. It was also submitted that the concerned Inspector of C.I.D. was not an officer-in-charge of the concerned police station, hence, he had no authority to file a report under Section 173(2) of the Code of Criminal Procedure. It was also submitted that under Section 36 of the Code of Criminal Procedure, the higher police officials have got the same powers as that of the officer-in-charge within their jurisdiction but with respect to supervising the case and participating into the investigation but not to the extent of filing or making a final opinion over the matter which according to the petitioner could be done only by the officer-in-charge of the concerned police station. The learned counsel for the respondents replied that so far the view as taken by the Apex Court that the power of - 4 - investigation and making a final opinion over the investigation by the officer-in-charge of the concerned police station cannot be delegated is limited to the extent only when the officer-in- charge is conducting the investigation himself. But, it was further submitted that in the instant case the officer-in-charge of the concerned police station, where F.I.R. was instituted was not conducting the investigation, inasmuch as by the orders of the Director General of Police, Bihar, the investigation had been taken away from officer-in-charge of that police station and it had been handed over to C.I.D. and in such view of the matters, it was submitted that the officials of the C.I.D. being of the rank of the Inspector of Police had equal powers under Section 36 of the Code and being in charge of investigation they had every authority to file a charge sheet or final form in the case. In support of the submission Rule-431(b) of the Bihar Police manual was referred to. This Rule prescribes that under Section 36 of the Code of Criminal Procedure the Inspector and superior police officers of the C.I.D. are superior in rank to an officer-in-charge of 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. . Further the case of R.P. Kapoor and others vrs. Sardar Pratap Singh Kairo reported in A.I.R. 1961 S.C. 117 was cited. In that case the investigation into the complaint against Chief Minister was first made by Dy. Superintendent of Police, C.I.D. in view of the status of the accused and the Apex Court - 5 - held the view that the procedure was not illegal. On the basis of these facts it was argued on behalf of the respondents that the investigation carried on by the C.I.D. is not illegal, hence, submission of charge sheet is also quite justified and it cannot be challenged. But on perusal of Rule-431(b) of the Bihar Police Manual and the ratio in the case of R. P. Kapoor (supra) as cited by the respondents, it appears that these relate to the stages of investigation. There is no controversy over the matter that investigation cant be participated by anybody else than the officer-in-charge of the concerned police station. The real dispute which is raised by the petitioner is not that the investigation cannot be participated by others but it is that the final report, may be the charge sheet or the final form has to be submitted by officer-in-charge of the concerned police station only and that provision under section 173 of the Code of Criminal Procedure does not authorize anybody else than officer-in-charge to file a charge sheet into any of the case relating to that police station. In view of what has been held by the apex court in the case of M.C. Mehta, 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 - 6 - 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. But while goring through the judgment of the Hon’ble Supreme Court in the case of M.C. Mehta (supra) it appears that the Hon’ble Supreme Court has also taken the view that the officer-in-charge of a police station has the power to collect evidence during investigation and he has to take a view over the matter for the purpose of filing a charge sheet or final form. The Apex Court also held that the view taken by the officer-in- charge is not legal evidence into the case. It is a simple view or opinion of the officer-in-charge and that the final view which has to be taken and which will hold for all purposes is the view of the concerned Magistrate or Judge who will examine the materials collected by the investigating officer for the purpose of deciding whether a prima facie case is made out or the accused has to be put on trial or nor. In this case the charge sheet filed by the Inspector, C.I.D. along with the materials collected during investigation was placed before the Chief Judicial Magistrate who has considered the materials and being of a view that a prima facie case is made out against the petitioner and others has taken cognizance of the offence and has ordered for the trial of the petitioner and three others. The learned counsel for the petitioner has argued the matter taking only technicalities and the legal juggleries and has - 7 - impressed upon this Court that the charge sheet filed by the Inspector, C.I.D. should be quashed due to reason that the Inspector had no authority to file such charge sheet. But in the facts and circumstances, I feel that this case cannot be allowed to be thwarted only due to such technicalities. A pragmatic view with a view to approaching the matter for findings substantial justice has to be taken. The learned counsel for the petitioner has suggested that after quashing of the charge sheet as submitted by the Inspector, C.I.D. the matter be sent back afresh with a direction for consideration by the concerned officer-in-charge for the purpose of obtaining his opinion whether a charge sheet should be filed or not. But in order to take a pragmatic view of the matter, I feel that the suggestions as made by the petitioner’s counsel for remanding the matter back for consideration by the officer-in-charge is not acceptable, inasmuch as whatever view the officer-in-charge will take that will never to be a legal evidence into the case and it will be a simple opinion of that person. Further the opinion of the officer- in-charge has necessarily to be placed before the concerned Chief Judicial Magistrate who will take his independent view on consideration of the materials collected during investigation for the purpose of deciding whether a prima facie case against the petitioner is made out or not and whether the petitioner has to be put on trial or not. That exercise as is necessarily required to be done by the Chief Judicial Magistrate has already been done and he has taken a final view. In such view of the matters, I feel - 8 - that no practical purpose would be served in sending the matter back to the officer-in-charge as requested by the petitioner. Therefore, I find no substance in the prayer as made by the petitioner. The criminal writ petition is accordingly dismissed. (C.M. Prasad, J.) Ravi/-