Crl.M.C.2246-2002 Page 1 of 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. No. 2246/2002 % Date of reserve : 22.07.2009 Date of decision: 06.08.2009 STATE …Petitioner Through:Ms. Mukta Gupta, Sr. Standing Counsel. Versus MUKESH ...Respondent Through: None for the respondent. CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MOOL CHAND GARG, J. 1. By this petition the Government of NCT of Delhi has assailed the order passed by the Metropolitan Magistrate Delhi dated 29.6.2002, whereby following observations were made and directions were given to the Commissioner of Police, Delhi as well as the Director of Prosecution to review their procedure for checking and scrutiny of the charge-sheet before a report under Section 173 Cr.P.C is filed in the Court after completing the investigation: - A. In the scheme of law as provided under Cr.P.C. at no stage the prosecution is authorized or required to scrutinize the material before the same is put before the Court. B. The formation of the final opinion is within the sphere of incharge of Police Station and the same has been abdicated to another agency, i.e., prosecution Department which is not within the scheme of code. C. The present scheme is in violation of the law laid down in the case of Rishbud and R. Sarla. D. It is not in the scheme of the code for supporting or sponsoring any joint operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court. Crl.M.C.2246-2002 Page 2 of 23 E. That there is no dispute that the Investigating Officer can of his own initiative seek legal advice from any source including the prosecution department. However, the same should be before formation of opinion by the incharge of the police station and not thereafter. F. Lastly the entire procedure of checking and scrutiny which has been so institutionalized by way of departmental arrangement between the Delhi Government, Delhi Police and the Director of Prosecution requires to be reviewed as the entire procedure of checking the police files through the prosecution agency at a stage where opinion has already been formed by the Incharge of the police station is only an attempt to evolve a method which is not in consonance with the scheme of law laid down by the Code of Crl. Procedure and by the Hon‟ble Supreme Court. Accordingly directions were given to the concerned authorities to review the procedure within one month. 2. It has been submitted that the aforessaid observations made by the Magistrate and directions contained in the order passed are not in accordance with the provisions contained in Code of Criminal Procedure or any other law dealing with the powers of the Magistrate in this regard and thus, the said order is illegal. It is also submitted that the order is also not in accordance with the legal prnouncements of the Apex Court and this Court from time to time holding that there is no such power vested in the Metropolitan Magistrate/ACMM or the CMM to pass any such order or to issue such directions as no such procedure is contemplated in the Code. 3. The occasion to pass the impugned order came during the pendency of investigation of FIR bearing No. 619/2000 registered at Police Station Lajpat Nagar under Section 379/482/411/34 against the respondent/Mukesh. He was arrested in that case and was remanded to judicial custody. He was not granted bail within the period of sixty days. Since the respondent could not have been detained in the Judicial Custody beyond that period without filing of Charge Sheet withn the time prescribed under Section 167 of the Code of Criminal Crl.M.C.2246-2002 Page 3 of 23 Procedure (hereinafter referred to as „Code‟), the respondent who had been approaching the Metropolitan Magistrate for his release on bail was released on Bail on the 60th day due to failure of the prosecution to file the Charge Sheet by that time. However on account of the stand of the Investigating officer that he could not file the report despite the completion of investigation within the prescribed period due the directions of the Superior Officer who wanted consultation with the legal advisor of the prosecution the magistrate passed the impugned order by taking suo motto cognizance of the delay in submitting the charge-sheet which occurred on account of directions given to the Investigating Officer by the senior officers to obtain the advice of the public prosecutor as if the Court was performing functions of a Writ Court. It has been held by the Court that such directions could not have been given and therefore, observed that the procedure adopted by the prosecution regarding obtaining advice from the Director of Prosecution was illegal and passed the impugned order dated 28.6.2002. 4. Assailing the impugned order it has been submitted by the petitioner/State that the impugned order is contrary to law and is not in accordance with the provisions of the Code besides being contrary to the Judgments delievered by the Apex Court on the issue from time to time. Reference has been made to a judgment delivered by the Apex Court in the case of R. Sarala Vs. T.S. Vellu & Ors. reported in 2000(2) Crimes 187 (SC), wherein in Para 6, it was observed:- “It is always open to any officer, including any investigating officer, to get the best legal opinion on any legal aspect concerning the preparation of any report. But the real question is, should the High court direct the investigating officer to take opinion of the Public Prosecutor for filing the charge sheet. The question here is not simply whether an investigating officer, on his own volition or on his own initative, can discuss with the Public Prosecutor or any legal talent, for the purpose of Crl.M.C.2246-2002 Page 4 of 23 forming his opinion as to the report to be laid in the Court.” 5. The learned standing counsel for the petitioner submitted that in view of the aforesaid it was within the competence of any investigating officer to obtain legal advice from the Public Prosecutor during the course of investigation of the case and before filing the charge sheet. It is stated that it is not within the purview of the Metropolitan Magistrate to interfere into the process of investigation or to give directions of the nature which have been given to the petitioner by the Metropolitan Magistrate as the said order amounts to interference into the statutory rights of investigation by the Police. It has been submitted that while passing the impugned order the Metropolitan Magistrate has also misread the judgment of the Apex Court in the case of R.Sarla (supra). It is also submitted that no powers are available to the Magistrate under the Code which may entitle the Magistrate to give directions of the nature which has been given by the Magistrate till such time the challan is filed under Section 173 Cr.P.C. where also the powers are to be exercised in accordance with the provisions contained in the said Section and the law laid down in this regard by the higher courts while interpreting those provisions. 6. It is also contended that a bare perusal of the judgment of Apex Court in the case of R.Sarla (supra) shows that the issue before the Apex Court was as to whether the High Court could have compelled the Police to seek the opinion from the Public Prosecutor as in the said case the High court had directed the Police to withdraw the charge sheet and submit the same only after getting it checked from the Public Prosecutor. In the facts of that case the Apex Court categorically held that it was permissible for the police officer to seek legal guidance from anybody, including the Public Prosecutor. The Crl.M.C.2246-2002 Page 5 of 23 obiter of the judgment is that since it is not the legal requirement that the opinion of the Public Prosecutor should be taken, the Court could not have directed the Police to seek the opinion, however, taking such an opinion suo motto is not an illegality and thus it was held that the police can always seek the advice of the Prosecutor suo motto before filing the charge sheet in the court. 7. It is further submitted that Chapter 29 clause 4(G) of the Delhi High Court Rules in relation to the duty of the Public Prosecutor provides that it is the duty of the Public Prosecutor to furnish opinion in all criminal cases when required by the District Magistrate and by the Sub Divisional officer through the District Magistrate. As per the Delhi Police Act, the Commissioner of Police is the District Magistrate of Delhi. 8. The petitioner also relied upon 14th Law Commission Report in this regard, where it has been suggested: “The Public Prosecutor in India is almost wholly occupied with the conduct of prosecutions in the sessions Court and in appearing for the State in criminal Appeals or Revisions and like matters. Apart from such advisory functions as he may discharge when requested to do so by the District Magistrate or the District Supdt. Of Police, he has no control over the cases before they come to the court. Even in the exercise of the power to withdraw from a prosecution, he is controlled to a large extent by the District Magistrate or the District Supdt. Of Police. On account of the practice that has prevailed for a long time, the Public Prosecutor has come to occupy a subordinate position. Even when he is aware of the defects in the prosecution evidence, he is not in a position to influence the future course of the prosecution. He is rarely consulted at the crucial states of the investigation and has no opportunity of guiding the investigating agency in the matter of gathering relevant evidence. A large number of complaints never come to court for the reason that the police after investigation report them to be not worth proceeding upon grounds of insufficient evidence or legal difficulties. It is true that in such cases, the complainant can himself directly file a complaint. The propriety of dropping the prosecution in such cases is a matter that is at present examined only by the departmental officials. The public prosecutor is unable to interfere in any of these matters, being recorded more or less as subordinate officials under the control of the District Magistrate and the District Supdt. Of Police.” Crl.M.C.2246-2002 Page 6 of 23 14. It has been suggested, and we see great usefulness in the suggestion, that the prosecution agency should be separated from and made independent of its administrative counter-part, that is the police department, and that it should not only be responsible for the conduct of the prosecution in the court but it should also have the liberty of scrutinizing the evidence particularly in serious and important cases before the case is actually filed in court. Such a measure would ensure that the evidence in support of a case is carefully examined by a properly qualified authority before a case is instituted so as to justify the expenditure of public time and money on it. It would also ensure that the investigation is conducted on proper lines, that all the evidence needed for the establishment of the quilt of the accused has been obtained. The actual conduct of the prosecution by such an independent agency will result in a fairer and more impartial approach by the prosecutor to the case.” 15. We therefore suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the police department. In every district a separate prosecution department may be constituted and placed in charge of an official, who may be called a “Director of Public Prosecutions”. The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as part of the police department, he should be an independent official, directly responsible to the State Govt. The departments of the machinery of the criminal justice, namely, the investigation department and the prosecuting department should thus be completely separated from each other.” 16. The principal functions of the Director of Public prosecutions should be as follows:- 4. “Every police charge sheet before it is laid in the court, should be scrutinized in his department so that, in case any difficulty or lacuna exists in the prosecution case, it should be possible to remedy it by further investigation of the lines indicated by his department.” 5. “He should advise the Police Department, or other government Departments at the District level, on the legal aspects of a case, at any stage of criminal proceedings, including the stage of investigation. His advice will be particularly helpful in difficult and important cases, like cases involving charges of conspiracy, fraud and forgery, cases based on circumstantial evidence and evidence gathered from account books, especially of firms or corporations.” 7. “Cases in which the police department decides not to initiate prosecutions should similarly be scrutinized by his department.” 23. A recommendation regarding the prosecuting agency may be summarized as follows”- 4. “His duties and functions should be as set out in paragraph 16 (which is reproduced above).” That vide 41st report of Law Commission of India it concluded that “With the abolition of committal proceedings, it will be the responsibility of the Public Prosecutor to scrutinize the police report (or charge sheet as they are commonly called) before it is submitted to the Magistrate and to see that a case Crl.M.C.2246-2002 Page 7 of 23 which, according to the police is exclusively triable by a court of Session is really so and that there is sufficient evidence to support it. This is said to be the practice even now, at least in important sessions case, and there should accordingly be no difficulty in enforcing it in all sessions case. At this stage the Public Prosecutor should have the authority to send the case back for further investigation and to modify the proposed charge whenever he finds it necessary to do so. 9. It has been contended that taking into consideration the aforesaid suggestions Standing Order No. 259 dt. 6.10.78 was issued by the Commissioner of Police which is annexed to the reply at page 72 of the paper book. The same is neither violative of Code of Criminal Procedure nor the decisions of the Apex Court (supra) and is within the competence of the Investigating Agency. . 10. The petitioners have also submitted :- (i) That the Apex Court in the case of Vineet Narain and Ors. Vs. U.O.I. reported as AIR 1998 SC 889 directed strengthening of the in-house legal advice mechanism. By issuing directions it was held that a panel of competent lawyer of experience and impeccable reputation be instituted and their services should be utilized as prosecutors and counsel in cases of significance and even during the course of investigation of an offence. (ii) That the Metropolitan Magistrate in its judgment has not disputed the competency of the police to seek legal opinion, however, the Metropolitan Magistrate has stated that the same can be before the formation of opinion and not thereafter. The said distinction sought to be drawn by the Ld. Metropolitan Magistrate is nowhere available under the scheme of Code of Criminal Procedure and is in any case violative of the said Code. Crl.M.C.2246-2002 Page 8 of 23 (iii) That directing the State to take a particular kind of policy decision is not permissible to any Court much less to the Ld. Magistrate which is bound by the statutory provisions. Even while exercising plenary powers the Apex Court has held that laying down a particular policy is not in the domain of the Courts. Thus, it was prayed that the impugned order dated 29.6.2002 passed by the Ld. Metropolitan Magistrate be set aside and the present petition be allowed. 11. Nobody come forward to oppose the petition. Though, at one stage, Sh. Aman Hingorani and Sh. Santosh Kumar, Advocates, filed a reply affidavit to the petition on behalf of the accused in this case. In the said affidavit the order passed by the Magistrate was justified by relying upon the Standing Order No.259 issued by the Commissioner of Police which mandates challans to be forwarded to Prosecutors for scrutiny before the same are filed in the Court, reference was also made to the minutes of the meeting held on 17.05.2000 in the chamber of Principal Secretary (Home) where the Principal Secretary (Home) himself opined that in view of the decision of the Apex Court in R. Sarla’s case the “practice of challan scrutiny appears to be done only as a practice without backing of any law and rules.”. It was also submitted that in the present case the role played by the prosecutor was in fact overruling the Additional Public Prosecutor and in that way interfering into the work of the prosecution. It was also submitted that on a random survey of 28 court cases conducted in November- December 2001 by the Faculty Legal Service Programme of the Faculty of Law, University of Delhi under the supervision of its Director, Professor B.B. Pandey assisted by Santosh Kumar, Advocate, it was found that in the guise of scrutiny, the prosecutors had, in fact, issued Crl.M.C.2246-2002 Page 9 of 23 memos in each of the 28 cases containing directions to the Investigating Officer which varied from a) Collecting further specified documentary evidence; b) Citing new witnesses for specific purpose; c) Conducting TIP; d) Recording specific statements from witnesses in form of supplementary statements; e) Requiring witnesses to sign or put thumb impression on documents; f) Addition/alteration of statutory provisions in the challan; g) Addition of accused; h) Addition of suspects in Col 2 of Challan (who are not charge-sheeted due to insufficiency of evidence); i) Arrest of accused persons or suspects; j) Collection and placing of reports of experts; k) Obtaining sanction. The challans were forwarded to the Court only after compliance by the investigating officer of the directions issued by the prosecutors. And even more shocking practice is illustrated by the last case (listed as Item No.28), where the Memo issued by the Chief Prosecutor ran in 7 pages and contained 24 directions for compliance by the IO including the production of fresh documents, the citation of more witnesses, further investigation into the role of certain persons, the arrest of certain persons and a direction to make certain persons accused and to designate others as suspects under Col.2 of the challan. In this case, the Chief Prosecutor had issued the Memo to the IO on 20.10.01 but as the 90 day period was to expire, he permitted the modified charge sheet submitted on 22.10.01 to be forwarded to the Court but Crl.M.C.2246-2002 Page 10 of 23 only after undertaking from the IO that he will arrest the persons and file the supplementary challan against them as directed by the Chief Prosecutor. 12. On that basis it was submitted that the procedure which was followed on the part of the prosecution in delaying filing of the challan at the behest of the public prosecutor in the garb of obtaining their advice was uncalled for and totally illegal and therefore, the order passed by the Magistrate was fully justified. 13. Since this case raises a very important issue, I have scrutinized the written submissions made by the petitioner and have carefully gone through the reply filed by the respondent. I have also gone through the Code so as to examine the powers of the Magistrate during the period of investigation carried out by the Police of any offence, whether cognizable or non-cognizable offence. 14. At this stage, it would be relevant to take note of some of the provisions contained under the Code of Criminal Procedure relevant to the controversy raised in this case. 15. Section 5 of the Code shows that all offences “shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code” (except insofar as any special enactment may provide otherwise). For the purposes of investigation offences are divided into two categories “cognizable” and “non-cognizable”. Once information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground). But where the information relates to a non-cognizable offence, he is not authorised to investigate it without the order of a competent Magistrate. Crl.M.C.2246-2002 Page 11 of 23 16. Thus it may be seen that according to the scheme of the Code, investigation is a preliminary requirement for putting an accused for trial except when the Magistrate takes cognizance otherwise than on a police report in which case he also has the power under Section 156(3) of the Code to order investigation by the Police, if he thinks fit. 17. In order to ascertain the scope of and the reason for requiring such investigation to be conducted by an officer of high rank (except when otherwise permitted by a Magistrate), it is useful to consider what “investigation” under the Code comprises of. Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has 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. Thus investigation primarily consists of the ascertainment of the facts and circumstances of the case. By definition, it includes “all the proceedings under the Code for the collection of evidence conducted by a police officer”. For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162. Crl.M.C.2246-2002 Page 12 of 23 18. Under Section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under Section 54 of the Code. A police officer making an investigation is also entitled to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. It is important to notice that where the investigation is conducted not by the officer in charge of the police station but by a subordinate officer (by virtue of one or other of the provisions enabling him to depute such subordinate officer for any