Crl. Misc. No. M- 4846 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 4846 of 2008 DATE OF DECISION: December 8, 2011 Gurwinder Singh .....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. TPS Tung, Advocate, for the petitioner. Mr. Gaurav Garg Dhuriwala, DAG, Punjab, for the State. Mr. Gulzar Mohd., Advocate, for respondent Nos.6 and 7. **** RANJIT SINGH, J. The petitioner has prayed for quashing of FIR No.98, dated 14.5.2004, registered against him under Sections 364/307/336/323/148/149 IPC and 25/27/54/59 of the Arms Act, at Police Station Sadar Khanna, District Khanna. Further, the petitioner also prays for quashing the report submitted under Section 173 Cr.P.C dated 19.9.2004 (Annexure P-2) and for quashing the supplementary report submitted under Section 173(8) Cr.P.C. dated 16.4.2007 (Annexure P-4). The grievance is that the report dated 16.4.2007 (Annexure P-4) is based on letter Annexure P-3 dated Crl. Misc. No. M- 4846 of 2008 -2- 9.2.2007, written by the Punjab State Commission for Scheduled Castes, Chandigarh (for short 'the Commission). At the time of arguments, counsel for the petitioner has only pressed his prayer for quashing the supplementary challan (Annexure P-4) and has given up his remaining prayers for quashing the FIR or the challan dated 19.9.2004 (Annexure P-2). Counsel has made rather a strong grievance against the action of the respondent- Police to file this supplementary challan (Annexure P-4), which according to him is done not as independent action but done to binding direction issued by the Commission. This as per the counsel for the petitioner would be beyond the scope of the jurisdiction of such a Commission. This FIR was registered against the petitioner on the statement of Parminder Singh, Singh, S/o Baldev Singh. After conducting investigation, the Police presented a challan for offences under Section 447/324/323/148/149 IPC. While the case was pending before the Court, one Harjinder Singh-respondent No.7 had sent a complaint to the commission. Thereafter, the Commission had issued direction to respondent No.4-Senior Superintendent of Police, Khanna to present a supplementary challan by adding offence under Section 3 (1) (V) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocity) Act, 1989 (hereinafter referred to as 'the Act'). Copy of this communication has been placed on record as Annexure P-3. Counsel for the petitioner has read before me the operative part of the directions as contained in this letter, whereby the investigating agency was directed to file a supplementary challan in the matter. The said part of the letter reads Crl. Misc. No. M- 4846 of 2008 -3- as under:- “However, the above Section 3 (1) (v) of 'The Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989' has not been involved in the FIR No.98, dated 15.5.2004, commission has desired that S.S.P., Police District Khanna be asked to add/invoke the Section 3 (1) (v) of 'The Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989', in the F.I.R. No. 98, dated 15.5.2004 and file the supplementary challan in the matter, if the charges have not been framed by Hon'ble Court. It is, therefore, requested that action may kindly be taken accordingly and send the Action taken report with fortnight so that Hon'ble Commission may be appeared accordingly, please.” The counsel would contend that the desire as expressed by the Commission would be a direction and has been taken as such by the police. This, says the counsel, would be beyond the competence of the Commission. Investigation of an offence is required to be done by the investigating agency and for this no outside agency or forum has any power, role or discretion to issue any advisory or direction for filing a challan or report or additional report. This duty is of the investigating agencies alone. So much so that even the courts of Magistrates where such challans are to be presented, are not empowered to issue any such direction for presentation of a challan or to issue any such like direction to the investigating machinery. Counsel for the private respondents, however, says that the communication addressed by the Commission cannot be treated Crl. Misc. No. M- 4846 of 2008 -4- as a binding direction as it was only a desire, expressed by the Commission and as such the action of the police to submit a supplementary challan under Section 173 (8) Cr.P.C was not due to any binding influence but was an independent one. As per the counsel for the respondents, this is only outcome of the further investigation carried out by the investigating agency. A reading of the communication addressed by the Commission apparently shows that it is not couched in a polite or appropriate language. The obvious impression that the wording of this letter would convey to the investigating agency, is to submit a supplementary challan. Though the commission has conveyed it as a 'desire' but this desire is for SSP to add offence under Section 3 of the Act by stating that he be asked to add this offence. Copy of the communication is also forwarded to DGP, Punjab. The communication may have been made in a subtle manner but it was to convey a clear message to add offence under the Act and to file a supplementary challan in this case. The result is there to see. As per the counsel for the petitioner, no further investigation was conducted by the investigating agency, but simply further report under Section 173 (8) Cr.P.C. was submitted adding offence under Section 3 (1) (v) of the Act. To seek support for his submission that such a direction can not be issued, the counsel for the petitioner has relied on M.C. Abraham and another Vs. State of Maharashtra and others, 2003 (1) RCR (Criminal) 452. In this case, the Hon'ble Supreme Court has observed that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. The relevant observations in this regard in this case are:- Crl. Misc. No. M- 4846 of 2008 -5- “17. The principle, therefore, is well settled and 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 dis-agree 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.” In fact, the Hon'ble Supreme Court did not approve the action of the High Court where it had observed for the State to expeditiously conclude the investigation in the case and to file chargesheet. The Court described this as an anxiety and termed such a direction to be unsustainable in view of the settled principle of law on the subject. The Hon'ble Supreme Court referred to the case of Abhinandan Jha and others Vs. Dinesh Mishra, AIR 1968 SC 117 and the observation made therein to the following effect:- “Then the question is, that what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for Crl. Misc. No. M- 4846 of 2008 -6- trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156 (3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156 (3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190 (1) (b), notwithstanding the contrary opinion of the police, expressed in the final report..... The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.” In S.M. Sharma Vs. Bipen Kumar Tiwari, (1970) 3 SCR Crl. Misc. No. M- 4846 of 2008 -7- 946, the Hon'ble Supreme Court has noticed the unfettered power of the police to investigate all cases in the following manner:- “It appears to us that, 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 issue a writ of mandamus restraining the police officer from misusing his legal power”. In State of Bihar & another Vs. JAC Saldanha & others (1980) 1 SCC 554, the Hon'ble Supreme Court has noticed the clear cut and well demarcated sphere of activity in the field of crime detection and crime punishments. “Investigation of an offence is the filed exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and find 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 under Section 190 of the Code of Criminal Procedure, 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), then commences the adjudicatory function of the judiciary to Crl. Misc. No. M- 4846 of 2008 -8- determine whether an offence has been committed and if so, whether by the person or persons charged with crime.” In view of the above settled position of law, it would clearly emerge that the police has unfettered power to investigate and in this regard for submitting report or challan etc. cannot be issued by even the High Court or the Magistrate before whom the police has to submit final report. The Commission certainly went beyond its jurisdiction to ask the SSP to submit challan for an offence under Section 3 of the SC & ST Act. This certainly was an unjustified interference with the investigation of the case. Even such like judicial interference has been termed as unjustified and quashed. In M.C. Abraham's case (supra), the directions issued by the High Court were quashed as it had exceeded its jurisdiction in making such direction. The proposition of law as canvassed by the counsel for the petitioner thus can not be in any serious dispute. The submission on behalf of the counsel for the respondents also is only on the basis of factual matrix. Whereas the counsel for the petitioner would maintain that no further investigation was conducted by the police, but acting on the direction it submitted a supplementary challan. Counsel for the respondents, however, would say that it was the police, which has submitted a supplementary challan for which it has adequate powers under Section 173 (8) Cr.P.C. Nothing is apparent from the record, which will indicate that further report or further challan was submitted after holding further investigation. It is reasonable to infer that this further challan Crl. Misc. No. M- 4846 of 2008 -9- was presented only on the basis of communication addressed by the Commission. This would certainly be unjustified and uncalled for interference in investigation. Since it is the duty and responsibility of the investigating agency to carry out further investigation and thereafter, take action in accordance with law, the action on the part of the Commission to issue such direction be it as a desire was not appropriate. To remove the apprehension that may remain in the mind of any one it would be appropriate to clear that this letter issued by the Commission, being in violation of law, cannot be sustained and deserve to be quashed. Consequent result of this letter i.e. submission of further report under Section 173 (8) Cr.P.C can also be not sustained. The same also deserve to be quashed and it is so ordered. The right of the Police to conduct further investigation, if it so desires, is available. The Police would be at liberty to carry out further investigation in accordance with Section 173 (8) Cr.P.C and if it is of the view that any other offence including under Section 3(1) (v) of the Act is made out, it would be at liberty to submit further report. The petition is, accordingly, disposed of. December 08, 2011 ( RANJIT SINGH ) monika JUDGE Crl. Misc. No. M- 4846 of 2008 -10- PRESENT: Mr. TPS Tung, Advocate, for the petitioner. Mr. Gaurav Garg Dhuriwala, DAG, Punjab, for the State. Mr. Gulzar Mohd., Advocate, for respondent Nos.6 and 7. **** Reply filed by respondent Nos.6 & 7 is taken on record. Application disposed of. December 08, 2011 ( RANJIT SINGH ) monika JUDGE