Questions & Answers By Justice V. Ramkumar- Investigation By Police-PART XII
A1. INVESTIGATION BY THE POLICE – Part XI
Q.56 Supposing the Investigating Officer files a closure report to the effect that no case is made out for prosecuting the accused. Has the Magistrate the authority to disagree with the Police and take cognizance of an offence made out by the prosecution records ?
Ans. Yes. (Vide para 17 of M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 = 2003 KHC 871 - N. Santhosh Hegde, B. P. Singh – JJ.)
Q.57 Is the Magistrate bound to give notice and opportunity of hearing to the informant before accepting a closure report (refer report or refer charge) ?
Ans. Yes. (Vide –
Para 4 of Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537 = AIR 1985 SC 1285 – 3 Judges – P. N. Bhagwati, Amarendra Nath Sen, B. P. Madon - JJ;
Paras 10 and 11 of Union Public Service Commission v. Papaiah (1997) 7 SCC 614 = AIR 1997 SC 3876 – Dr. A. S. Anand, K. Venkataswami - JJ;
Para 12 of Minu Kumari v. State of Bihar (2006) 4 SCC 359 = AIR 2006 SC 1937 – Arijit Pasayat, S. H. Kapadia - JJ;
Paras 7 and 9 of Gangadher Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768 = AIR 2004 SC 4753 – Arijit Pasayat, C. K. Thakker – JJ – The First Informant alone is entitled to notice and not an injured person or a relative of the deceased both of whom are not first informants;
Para 9 of Jakia Nasim Ahesan v. State of Gujarat (2011) 12 SCC 302 = AIR 2012 SC 243 – 3 Judges – D. K. Jain, P. Sathasivam, Aftab Alam – JJ – One of the Incidents which took place after the Godhra Train Burning Incident which took place on 27-02-2002 in Gujarat;
Para 13 of Vasanti Dubei v. State of M.P. (2012) 2 SCC 731 = 2012 Cri.L.J. 1309 SC – A. K. Ganguly, Gyan Sudha Misra - JJ).
Q.58 Are not the Courts entitled to interfere with the investigation of cognizable offence by the Police ?
Ans. Ordinarily no. Investigation is the exclusive prerogative of the Police. As long as the investigation is proceeding on proper lines, this power of investigation of the Police cannot be interfered with by the Courts.
In King emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18 = 71 Indian Appeal 203 - – Goddard, M. Nair, Porter, Simonds – JJ, the Judicial Committee of the Privy Council held "The functions of the judiciary and the Police are complementary and not overlapping" and "the Court's functions begin when a charge is preferred before it and not until then".
Under Sections 154 and 156 Cr.P.C the police has the statutory right to investigate into a cognizable offence without the authority from a Magistrate and this statutory power of the police cannot be interfered with by the exercise of the power under Section 401 Cr.P.C (revisional power) or under the inherent power of the High Court.
Under Section 482 Cr.P.C (Vide –
State of W.B v. S. N. Basak AIR 1963 SC 447 – 3 Judges – J. L. Kapur, K. C. Das Gupta, Raghubar Dayal – JJ ;
Para 19 of Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 – M. Hidayatullah, Vaidialingam - JJ;
Nirmaljit Singh Hoon v. State of W. B. AIR 1972 SC 2639 – 3 Judges - J. M. Shelat, I. D. Dua, H. R. Khanna – JJ;
Kurukshetra University v. State of Haryana AIR 1977 SC 2229 – 3 Judges – Y. V. Chandrachud, P. K. Goswami, P. N. Shingal – JJ
Paras 20 and 21 of State of W. B. v. Swapan Kumar Guha AIR 1982 SC 949 – 3 Judges – Y. V. Chandrachud – CJI, A. Varadarajan, Amarendra Nath Sen – JJ – Khwaja Nazir Ahmed AIR 1945 PC 18 distinguished stating that if the investigation conducted is pursuant to an FIR which does not disclose a cognizable offence, then the Court can quash the FIR;
Manohar Lal Sharma v. Principal Secretary (2014) 2 SCC 532 = AIR 2014 SC 666 – 3 Judges - R. M. Lodha, Madan B. Lokur, Kurian Joseph – JJ – R. M. Lodha – Paras 1 to 65 and Madan B. Lokhur – Paras 66 to 107 held that prior approval of the Central Government under Section 6 A of the Delhi Special Police Establishment Act, 1946 ("DSPE Act" for short) is not necessary if the inquiry or investigation is conducted as per directions of the Constitutional Courts or are monitored by such Courts.
Subsequently, in Subramanian Swamy (Dr.) v. Director, CBI 2014 (8) SCC 682 = AIR 2014 SC 2140 – 5 Judges – R. M. Lodha – CJI, A. K. Patnaik, S. J. Mukhopadhaya, Dipak Misra, F. M. Ibrahim Kalifulla – JJ, Section 6 A of the DSPE Act was struck down by the Constitution Bench as violative of Article 14 of the Constitution of India.
Paras 15 and 19 of D. Venkatasubramaniam v. M.K. Mohan Krishnamachari (2009) 10 SCC 488 = 2009 KHC 1072 (SC) – R. V. Raveendran, B. Sudershan Reddy – JJ.
Investigation proceedings by police ends only when the Magistrate takes cognizance of the offence and Courts should not interfere prior to that stage unless there is gross abuse of power. (Vide paras 25 and 26 of State of Bihar v. JAC Saldanha (1980) 1 SCC 554 = AIR 1980 SC 326- 3 Judges – R. S. Sarkaria, D. A. Desai, O. Chinnappa Reddy - JJ).
Q.59 Can a charge – sheet against an absconding accused be filed merely because sufficient evidence against him is available ?
And. Yes. If the Investigating Officer has been able to collect sufficient evidence even against an absconding accused, the filing of the charge-sheet against him need not await his arrest. (Vide paras 15 and 16 of Dinesh Dalmia v. CBI (2007) 8 SCC 770 = AIR 2008 SC 78 – S. B. Sinha, Harjit Singh Bedi - JJ).
Q.60 Which are the documents to be supplied to the accused in a case instituted on a Police report ?
Ans. Section 207 Cr.P.C. gives details of those documents. The accused is entitled to have the entire set of documents which accompanied the final report. However, the case diary can be used only by the Court subject to the restrictions under Section 172 (2) and (3) or Cr.P.C. and the accused can have no claim to it. (Vide para 2 of CBI v. Mohinder Singh (2004) 13 SCC 578 – K. G. Balakrishnan, P. Venkatarama Reddy – JJ).
The restriction imposed by Section 172 (3) Cr.P.C. that the accused shall not be entitled to call for the case diary, is confined only to the case under inquiry or trial before the Court. It does not prohibit the accused from summoning the case diary of another case which can include the counter-case when the main case is on trial. (Vide State of Kerala v. Babu (1999) 4 SCC 621 = AIR 1999 SC 2161 – G. B. Pattanaik, N. Santhosh Hegde - JJ).