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Tuesday, March 18, 2014

Sec.24 and 36, 156 - 173 Cr.P.C.- Power of investigation officer - Role of public prosecutor - filing report on the opinion of the public prosecutor as false is not tenable - Their Lordships held that Involving the Public Prosecutor in investigation is not only unjudicious but is also pernicious in law. The role of a Public Prosecutor is inside the court, whereas investigation is outside it. Normally the role of the Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is not only unjudicious but is also pernicious in law. The power of the officer in charge of the police station, under Sections 154 to 173 Cr.P.C, is subject only to the supervision of his superiors as envisaged in Section 36 Cr.P.C. = Bethalam Subbarao.... Petitioner The Superintendent of Police (Urban),Guntur District,And others....Respondents = 2014 (March. Part) judis.nic.in/judis_andhra/filename=10972

Sec.24 and 36, 156 - 173 Cr.P.C.- Power of investigation officer - Role of public prosecutor - filing report on the opinion of the public prosecutor as false is not tenable - Their Lordships held that Involving the Public Prosecutor in investigation is not only unjudicious but is also pernicious in law. The role of a Public Prosecutor is inside the court, whereas investigation is outside it. Normally the role of the Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may
have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is not only unjudicious but is also pernicious in law.   The power of the officer in charge of the police station, under Sections 154 to 173 Cr.P.C, is subject only to the supervision of his superiors as envisaged in Section 36 Cr.P.C. =

declare the action of
the respondents in not expeditiously investigating Crime No.108 of 2013 of
Chebrolu Police Station, pertaining to the hurt, intimidation and abuse of the
petitioner in the name of his caste, even after six months as arbitrary and
illegal.=
 In the counter affidavit, filed by the second respondent, it is stated
that the Investigating Officer had obtained legal opinion from the Additional
Public Prosecutor, Special Sessions Court for SC/ST cases, that the case be
referred as false.=
whether the
provisions of the Cr.P.C, or any other law in force, justified the Investigating
Officer seeking the legal opinion of the Public Prosecutor on facts, more
particularly whether or not the evidence on record warranted a charge sheet
being filed.  
The Learned Public Prosecutor, placing reliance on R. Sarala v.
T.S. Velu1; M. Satyanarayanan v. Govt. of A.P. GAD2 and Ch. Siddaiah v. State of
Andhra Pradesh3, stated that investigation, into a complaint alleging commission
of a cognizable offence, is in the exclusive domain of the Investigating
Officer; and neither were the Investigating Officers justified in seeking legal
opinion, nor were the Public Prosecutors required to give their legal opinion,
in such matters. =
 Under Section 36 Cr.P.C. a Police Officer, superior
in rank to an Officer in charge of a police station, is recognised to have the
powers, of the Officer in charge of the police station, through out the local
area to which they are appointed.  (Ch. Siddaiah3).  
The power of investigation
is vested entirely in the officer in-charge of a police station.  He, or his
superior, must investigate the offence, collect evidence and file the police
report. Investigation includes formation of opinion by him whether the material
collected is sufficient to place the case before the Magistrate against the
accused for trail, or for filing of a deferred report.  
There is no provision in
the Code empowering any officer, other than the officer in-charge of a police
station, to file the police report, except his superiors. 
Whether a prima facie
case is made out against the accused or not, for filing the report, is within
the jurisdiction of the investigating officer and his superior officer subject
to the control of the Magistrate. No one else can interfere with the discretion
of formation of opinion.  (M. Satyanarayana2).=
Involving the Public Prosecutor in investigation is not only unjudicious but is
also pernicious in law.
The role of a Public Prosecutor is inside the court, whereas
investigation is outside it. Normally the role of the Public Prosecutor
commences after the investigating agency presents the case in the court on
culmination of investigation. Its exception is that the Public Prosecutor may
have to deal with bail applications moved by the parties concerned at any stage.
Involving the Public Prosecutor in investigation is not only unjudicious but is
also pernicious in law.   The power of the officer in charge of the police
station, under Sections 154 to 173 Cr.P.C, is subject only to the supervision of
his superiors as envisaged in Section 36 Cr.P.C. There is no stage during which
the investigating officer is legally obliged to take the opinion of a Public
Prosecutor or any other authority. (R. Sarala1).
As the Inspector General of Police, by proceedings dated 26.02.2014, has
accorded permission to the Sub-Divisional Police Officer, Guntur to refer the
case in Crime No.108 of 2013 as false; and, pursuant thereto, a report under
Section 173(2) Cr.P.C was filed before the competent Magistrate; the cause in
the Writ Petition does not necessitate any further adjudication.  The remedy
which the petitioner has, on a failure report now having been filed by the
Investigation Officer, is to approach the competent Magistrate for redressal of
his grievance.

2014 (March. Part) judis.nic.in/judis_andhra/filename=10972
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN            

WRIT PETITION No.39478 of 2013  

05-03-2014

Bethalam Subbarao.... Petitioner

The Superintendent of Police (Urban),Guntur District,And others....Respondents

Counsel for petitioner: Ms.Vasudha Nagaraj

Counsel for the Respondents : Government Pleader for Home
                                The Public Prosecutor

<Gist:

>Head Note:

? CITATIONS:

1.2000 Crl.L.J. 2453 (1)(SC)
2.1997 (3) ALD 784 (DB)
3.1997 (3) ALD 395 (DB)

THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN            

WRIT PETITION No.39478 of 2013  

ORDER:                                        
        The relief sought for in this Writ Petition is to declare the action of
the respondents in not expeditiously investigating Crime No.108 of 2013 of
Chebrolu Police Station, pertaining to the hurt, intimidation and abuse of the
petitioner in the name of his caste, even after six months as arbitrary and
illegal.
        The petitioner belongs to the Scheduled Castes.  He filed the complaint,
in Crime No.108 of 2013 dated 07.06.2013, alleging that he was assaulted and
abused in the name of his caste by the accused on 14.04.2013.  The jurisdiction
of this Court has been invoked by him, by way of the present Writ Petition,
alleging that, despite Rule 7(2) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Rules, 1995 requiring investigation into offences,
under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, the Act), to be completed within thirty days,
investigation in Crime No.108 of 2013 dated 07.06.2013 was not completed even by
31.12.2013.
        In the counter affidavit, filed by the second respondent, it is stated
that the Investigating Officer had obtained legal opinion from the Additional
Public Prosecutor, Special Sessions Court for SC/ST cases, that the case be
referred as false.  A copy of the opinion of the Special Public Prosecutor is
enclosed, along with the counter affidavit, wherein the evidence on record was
analyzed and it was opined that, as per the evidence collected in the case, it
could be referred as false.
        As investigation into offences, both under the Indian Penal Code and the
Act, are in the exclusive domain of the Investigating Officer, this Court called
for a report from the first respondent whether there was any legal sanction for
the police officers to seek a legal opinion, from the public prosecutors, on
whether or not the statements of witnesses, recorded during the course of
investigation, make out a case for filing a charge sheet.  In his report dated
03.02.2014, the first respondent admits that the Public Prosecutors lack the
power to give such opinions; as a matter of routine, and to overcome legal
complications, if any, in most of the complicated cases, Investigating Officers
were seeking legal opinion though there was no necessity for them to do so; a
legal opinion is not binding, and the Investigating Officer should complete
investigation on the basis of the statements of witnesses and the evidence
adduced during the course of investigation, either oral or documentary; and
must, thereafter, file an appropriate report under Section 173(2) Cr.P.C.  The
Superintendent of Police has expresses apology on behalf of his subordinate for
having sought a legal opinion from the special public prosecutor.
        This Court, by its order dated 12.02.2014, sought the assistance of the
learned Public Prosecutor, High Court of Andhra Pradesh on whether the
provisions of the Cr.P.C, or any other law in force, justified the Investigating
Officer seeking the legal opinion of the Public Prosecutor on facts, more
particularly whether or not the evidence on record warranted a charge sheet
being filed.  The Learned Public Prosecutor, placing reliance on R. Sarala v.
T.S. Velu1; M. Satyanarayanan v. Govt. of A.P. GAD2 and Ch. Siddaiah v. State of
Andhra Pradesh3, stated that investigation, into a complaint alleging commission
of a cognizable offence, is in the exclusive domain of the Investigating
Officer; and neither were the Investigating Officers justified in seeking legal
opinion, nor were the Public Prosecutors required to give their legal opinion,
in such matters.
A vital role is assigned by the Code of Criminal Procedure to the Officer in-
charge of a Police Station.  Under Section 36 Cr.P.C. a Police Officer, superior
in rank to an Officer in charge of a police station, is recognised to have the
powers, of the Officer in charge of the police station, through out the local
area to which they are appointed.  (Ch. Siddaiah3).  The power of investigation
is vested entirely in the officer in-charge of a police station.  He, or his
superior, must investigate the offence, collect evidence and file the police
report. Investigation includes formation of opinion by him whether the material
collected is sufficient to place the case before the Magistrate against the
accused for trail, or for filing of a deferred report.  There is no provision in
the Code empowering any officer, other than the officer in-charge of a police
station, to file the police report, except his superiors. Whether a prima facie
case is made out against the accused or not, for filing the report, is within
the jurisdiction of the investigating officer and his superior officer subject
to the control of the Magistrate. No one else can interfere with the discretion
of formation of opinion.  (M. Satyanarayana2).
A Public Prosecutor is appointed, under Section 24 Cr.P.C, for conducting
prosecutions, appeals or other proceedings in the Court. He has also the power
to withdraw any case from prosecution with the consent of the Court. He is an
officer of the court, and is not involved in investigation. The scheme of the
Cr.P.C. neither supports nor sponsors a combined operation between the
investigating officer and the Public Prosecutor for filing the report under
Section 173(2) Cr.P.C. in the Court. (R. Sarala1).
Investigation and prosecution are two different facets in the administration of
criminal justice. The role of a Public Prosecutor is inside the court, whereas
investigation is outside it. Normally the role of the Public Prosecutor
commences after the investigating agency presents the case in the court on
culmination of investigation. Its exception is that the Public Prosecutor may
have to deal with bail applications moved by the parties concerned at any stage.
Involving the Public Prosecutor in investigation is not only unjudicious but is
also pernicious in law.   The power of the officer in charge of the police
station, under Sections 154 to 173 Cr.P.C, is subject only to the supervision of
his superiors as envisaged in Section 36 Cr.P.C. There is no stage during which
the investigating officer is legally obliged to take the opinion of a Public
Prosecutor or any other authority. (R. Sarala1).
As investigation, into complaints alleging commission of cognizable offences, is
in the exclusive domain of the Investigating Officer, he is not justified in
seeking the legal opinion of the Public Prosecutor on whether or not the
evidence, collected during the course of investigation, justifies a charge sheet
being filed.  As several such cases, of legal opinions being sought from and
given by the Public Prosecutors, have come to the notice of this Court and as
the public prosecutors, appointed by the State Government under Sections 24(3)
and (8) Cr.P.C, are subordinate to the Director of Prosecutions in terms of
Section 25-A(6) Cr.P.C, the Director General of Police shall forthwith issue
instructions to the Director of Prosecutions to make the public prosecutors, in
the district and subordinate courts, aware of the law declared by the Supreme
Court and this Court in the aforesaid judgments; and that they should refrain
from giving their legal opinion on whether or not the evidence collected, by the
Investigating Officer, during the course of investigation necessitates a charge
sheet being filed under Section 173(2) Cr.P.C.
As the Inspector General of Police, by proceedings dated 26.02.2014, has
accorded permission to the Sub-Divisional Police Officer, Guntur to refer the
case in Crime No.108 of 2013 as false; and, pursuant thereto, a report under
Section 173(2) Cr.P.C was filed before the competent Magistrate; the cause in
the Writ Petition does not necessitate any further adjudication.  The remedy
which the petitioner has, on a failure report now having been filed by the
Investigation Officer, is to approach the competent Magistrate for redressal of
his grievance.
Leaving it open to the petitioner to do so, the Writ Petition is closed.  The
miscellaneous petitions pending, if any, shall also stand closed.  There shall
be no order as to costs.
_______________________________    
(RAMESH RANGANATHAN, J)      
05.03.2014

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