AI Structured Summary
Not yet generated for this judgment
Judgment
Anand Byrareddy, J.—Heard the counsel for the parties.
The facts of the case are as follows:
The petitioner is an employee of Karnataka Power Transmission Corporation Limited (hereinafter referred to as the ''KPTCL'' for brevity) and is
said to be the Executive Director of the KPTCL Employees Co-operative Society. Certain members of the Society are said to have filed a
complaint before the Registrar of Co-operative Societies alleging acts of omission and commission by the petitioner, relating to the affairs of the
society - in the formation of residential layouts in and around the city of Bangalore. The Registrar, in turn, had ordered an enquiry as on
28.10.2006 u/s 64 of the Karnataka Co-operative Societies Act, 1959 (Hereinafter called the ''KCS Act'', for brevity), a Deputy Registrar was
appointed as the enquiry officer. After a detailed enquiry a report was submitted absolving the petitioner and other office-bearers of any
irregularity.
Complaints were also said to have been filed before the High Grounds Police Station. The Police had, after an investigation concluded that the
allegations did not constitute any offence under criminal law and directed the parties to approach a civil court - by endorsements dated 8.6.2007.
It transpires that the very same complainants have lodged similar complaints before the same Police Station as on 2.7.2007 and 13.10.2007.
Inspite of the earlier endorsements issued, the Police have registered criminal cases for alleged offences u/s 406 and 420 of the Indian Penal Code
in Crime No. 208/2007 and Crime No. 209/2007. Further the State Government through the Secretary, Home Department has by a Notification
dated 1.2.2008 transferred the cases for investigation and further action to the Corps of Detectives (Hereinafter referred to as the ''COD'' for
brevity). Pursuant to the same, notices having been issued to the petitioner by the COD, calling upon the petitioner to appear and produce certain
documents - the present petition is filed.
It is contended on behalf of the petitioner that:
a) An officer in-charge of a Police Station is required to register a case on the basis of a complaint which discloses the commission of a cognizable
offence and take up investigation while exercising power conferred upon him under Chapter XII of the Code of Criminal Procedure, 1973
(hereinafter referred to as ""the Cr.P.Code"" for brevity). Section 154 of the Cr.P.C. Code mandates the registration of a criminal case while
Section 156 clothes the Inspector with the power to investigate the case. u/s 161, the Inspector in the course of investigation can secure the
presence of anyone who is acquainted with the facts and record their statement. The investigator would be required to submit the diary of the
proceedings, to the jurisdictional court, in terms of Section 172.
On completion of the investigation, the investigator would be required to submit the report of the investigation to the jurisdictional magistrate.
It is contended that in the instant case, the government notification, under which the cases in Crime Nos.208 and 209 of 2007 came to be
transferred to the COD for purposes of investigation has directed that the final report be submitted to it, which is contrary to Section 173 of the
Cr.P.Code.
The investigator cannot submit the report of investigation to anyone other than to the Court of the Magistrate before whom the First Information
Report is filed.
Further in the communication addressed to the petitioner by the Inspectors attached to the COD the petitioner is required to produce 86 witnesses
and produce documents detailed therein. He is threatened with the cancellation of bail granted to him by the District Court of Sessions at
Bangalore. It is contended that the petitioner is neither under a legal duty nor an obligation to comply with the notice, when he is labelled as an
accused in the case.
It is contended as the allegations against the petitioner have been addressed at an enquiry u/s 64 of the KCS Act wherein he has been absolved, as
well as by the Police who had already opined the allegations, at best gave rise to a civil dispute and that there was no criminal case - the present
criminal proceedings clearly smacks of arbitrary and highhanded action obviously motivated by extraneous considerations. The actions of the State
Government and the investigating authority are clearly contrary to law and are liable to be set at naught.
Shri Ashok Haranahalli, the learned Advocate General appearing for the State would on the other hand contend that the petitioner''s bona-fides
are clearly found wanting as is evident from the particulars found in the statement of objections, and supporting documents produced in respect of
those particulars. The notification issued by the Government of Karnataka is apparently on account of the gravity of the enormity of the illegalities
and offences alleged against the petitioner which have been prima facie demonstrated. The Government has exercised power u/s 173 of the
Cr.P.Code in transferring the matters to the COD for investigation.
It is submitted that the contention that there was an enquiry u/s 64 of the KCS Act and therefore the criminal cases could not have been instituted,
is not tenable. The scope of an enquiry u/s 64 is limited by the provisions of the KCS Act. The subject matter of the criminal cases cannot be said
to be on the same set of facts.
It is further contended that the endorsements issued by the High Grounds Police Station at an earlier point of time as to the allegations giving rise
only to a civil dispute - did not preclude the Police from registering a case on forming a different opinion. Insofar as the notices issued by the
Inspectors of the COD are concerned - it is contended that the petitioner in a voluntary statement, had declared as an office bearer of the Society
and custodian of all documents which are relevant for the investigation, that he would extend full cooperation to the conduct of the investigation by
the COD and it is in the wake of this assurance the notices have been issued. The statement of the petitioner is produced at Annexure R-36.
The Advocate General has made available the records of the Home Department in connection with the decision to transfer the cases to the COD.
In the above circumstances, the petitioner seeks to challenge Annexures - ''KYL''(Series) and ''M''(Series). Annexure-K is a government order
dated 1.2.2008 passed pursuant to a request from the Co-operation Department to institute an enquiry by the Corps of Detectives and in respect
of irregularities pertaining to the residential layouts formed by the KPTCL Employees Co-operative Society Limited and illegal sale transactions
made by it etc.
In respect of the above cases were registered in Crime No. 208/2007 and Crime No. 209/2007 by the High Grounds Police Station, Bangalore.
The Government has directed that the COD investigate the case and submit a report to it, at the earliest.
The propriety of the State Government directing the investigation by the COD and calling for a report when a First Information Report has been
lodged in the above criminal cases before the jurisdictional magistrate is sought to be questioned.
The questions that arise for consideration are:
(a) Whether the State Government has the power and jurisdiction to direct such an investigation in respect of pending criminal cases and call for a
report to itself from the investigation agency..?
a) Whether the State Government has acted arbitrarily at the instance of the complainants in the criminal cases as alleged by the petitioner?
Insofar as the State Government directing the COD to conduct an investigation is concerned, it is seen from material made available that the
Corps of Detectives was established during the year 1974 by the Government of Karnataka by an Order No. 229/PEG/73 dated 15.4.1974. This
was established in the Criminal Investigation Department to investigate major crimes requiring special knowledge of law and investigation. Its
personnel were under the control of the Deputy Inspector General of Police, CID - subject to the general control of the Inspector General of
Police. The structure and hierarchy of its personnel in the COD is elaborated under a standing Order No. 630 dated 21.4.1974.
The Corps of Detectives has its headquarters at Bangalore and has jurisdiction through out the State of Karnataka. It has the following squads:
Homicide Squad
Burglary Squad
Fraud Squad
Counterfeit Squad
Army and Explosives Squad
Vice Squad
Anti-Smuggling Squad
Special Enquiry Squad
Anti-dowry Squad
10.Three Anti-dacoity Squads
The COD assists the District Police in the prevention and detection of crimes by either:
a) taking up the entire investigation of a case
or
b) placing an officer at the disposal of the Superintendant of Police of the District
or
c) disseminating information regarding crimes and criminals by co-ordinating the work of the District Police where Inter District criminals are
concerned.
The Police Manual has specified the classes of crime to be investigated by the COD at Order 1770 under Clauses (a) to (o), thereof.
Clause (o) reads thus:
Cases of such a complicated and sensational nature as in the opinion of the Government or the Director General and Inspector General of Police
call for investigation by the COD. (Emphasis supplied)
The record was examined to ascertain as to how the State Government had formed its opinion as to the need for investigation into the cases on
hand by the COD.
It transpires that independent of the criminal cases registered by the High Grounds Police Station there was a request made by the Secretary Co-
operation Department seeking an investigation by the CBI into the affairs of the Society.
It was opined that proposals requiring investigation by CBI were to be submitted to the Minister for Home of the Government of Karnataka for
approval. At the relevant point of time as president''s rule had been imposed in the State of Karnataka, the file had been submitted for the
Governor''s approval through his Advisor. The Advisor to the Governor had queried as to why the matter ought not to be referred to the COD, as
per noting in the file dated 3.1.2008. It was also wondered whether there was a first information report filed. It is thereafter brought to the attention
of the concerned that Crime No. 208 and 209 having been registered pursuant to complaints dated 2.7.2007 and 13.10.2007, respectively. And it
is thereafter that approval has been granted to refer the matter to the COD for investigation.
It is not in dispute that the Police had not completed the investigation into the allegations in the aforesaid criminal cases, at this stage whether the
State Government would have the power to direct another specialized investigation agency to take over the investigation and submit a report to it is
the question.
Insofar as the first part of the question as to whether the State Government would have any such power in a circumstance such as above is
answered by a judgment of the Supreme Court in the case of State of Bihar and Another Vs. J.A.C. Saldanha and Others, The facts of that case
were as follows:
Tata Iron and Steel Company had a railway siding at Adityapura. Iron ore and manganese ore were brought by rail and supplied to its Ferro
manganese plants through the railway siding. It was alleged that some of the empty railway wagons were loaded with pearl coke, on their return
journey without being booked according to the railway rules and without issuance of railway receipts, with the connivance of railway personnel. On
the above and other allegations a first information report was lodged consequent upon which an offence was registered at the Tatanagar Police
Station against nine persons. Investigation was commenced. It appears the D.I.G, Railway Police wrote to the D.I.G., C.I.D. to entrust the
investigation to the CBI, this request is said to have been rejected.
In the meanwhile, an officer of TISCO is said to have written to the Chief Secretary of the State of Bihar complaining of harassment by the
Railway Police and to take appropriate steps to stop the same.
The Chief Secretary with the approval of the Chief Minister had directed that the entire case papers be sent to his office which was complied with
by the Railway Police.
The CBI declined to take up the investigation. Thereafter the IG Vigilance was entrusted with the case. In the meanwhile, the officer who had sent
the entire case papers to the Chief Secretary directed his sub-ordinate to file a final report to the jurisdictional Court. The Chief Secretary took
exception to this conduct and further directed that a final report may not be submitted. But by then a final report was submitted. Steps were then
taken to move the court not to accept the report and await a report after further investigation which was directed by the Government.
The Chief Judicial Magistrate passed an order to await the report after further investigation. This order was questioned before the High Court. A
Full Bench of the High Court held mat the direction by the Chief Secretary, with the concurrence of the Chief Minister handing over the
investigation to IG Vigilance, as illegal - as the case was registered with the Railway Police and a report had been submitted. It was held that the
Magistrate was in error in accepting that a final report was yet to be filed.
In the above background the Supreme Court considered the following questions:
1 (a) Whether the State Government was competent to direct further investigation in a criminal case in which a report was submitted by the
investigation agency u/s 173(2) of the Code of Criminal Procedure, 1973?
(b) Whether the Magistrate having jurisdiction to try the case committed an illegality in postponing consideration of the report submitted to him
upon a request made by the Prosecutor till completion of further investigation directed by the State Government; and
Whether when the investigation was in progress the High Court was justified in interfering with the investigation, in exercise of power under
Article 226 of the Constitution
The apex court held thus:
Investigation'' is defined in Section 2(h) of the Code to include all the proceedings under the Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. ''Police report'' is defined in Section 2(r)
to mean a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173, Chapter Xll deals with investigation of a
cognizable case. Section 156(1) and (2) are relevant and may be extracted:
156(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate, any cognizable case which a Court having
jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.
Section 36 confers power of an officer in charge of a police station on all police officers superior in tank to an officer in charge of a police
station. It reads as under:
Police officers superior in rank to an officer in charge of a police station may exercise the same powers, through the local area to which they
are appointed, as maybe exercised by such officer within the limits of his station.
Section 173 provides for submission of a report by an officer in charge of a police station on completion of the investigation to the Magistrate
empowered to take cognizance of the offence. Sub-Section (8) of Section 173 is material. It reads as under:
173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) or
reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to
such report or reports as they apply in relation to a report forwarded under Sub-section (2).
The first question is whether the State Government was precluded from directing further investigation in the case in which one investigating
officer had submitted a report u/s 173(2) of the Code but on which the Court had not passed any order?
Section 156 enables the officer in charge of a police station to investigate without the order of a Magistrate into a cognizable case committed
within the area of the police station.
The officer directed by the State Government to carry on the investigation is Inspector General, Vigilance. He is undoubtedly an officer
superior in rank, if not in department wise administrative hierarchy, to an officer in charge of a police station. Inter se departmental division such as
Inspector General of Police or Inspector General, Vigilance, or Additional Inspector General, C.I.D., may be merely a division of work for
administrative efficiency, of the Inspector General of Police could not by any stretch of imagination be said not to be an officer superior in rank to
an officer in charge of a police station.
xx xx xx
If he is thus an officer superior in rank to an officer in charge of a police station he could in view of Section 36 exercise the powers of an officer in
charge of a police station throughout the local area to which he was appointed meaning thereby the whole of Bihar State as might be exercised by
an officer in charge of a police station within the limits of his police station. It was to him that the investigation of the case was ordered to be
handed over by the State Government.
xx xx xx xx
What is the scope, content and ambit of the power of general superintendence conferred on the State Government over the police throughout the
general police district meaning thereby the whole State?
The general power of superintendence as conferred by Section 3 would comprehend the power to exercise effective control over the actions,
performance and discharge of duties by the members of the police force throughout the general district. The word ''superintendence'' would imply
administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and
functions in the manner indicated in the order. It is only when a subordinate authority subject to superintendence is discharging duties and functions
of a quasi-judicial character under a statute that the inhibition of abdication of such power can be invoked. But where the subordinate subject to
such power of superintendence of the of the superior is discharging administrative and executive functions, obligations and duties, the power of
superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one or the
other duty, to direct some one else to perform the duty and the inhibition or limitation can be read in this power unless the section conferring such
power prescribes one. Such is the scope and ambit of power conferred by Section 3 on the State Government of superintendence over the entire
police force of the State.
xx xx xx xx
The High Court construed the expression ''superintendence'' in Section 3 of the Act to mean ''general supervision of the management of the
police department and does not vest the State Government with authority to decide what the police alone is authorised to decide.'' There is nothing
in the Act to indicate such a narrow construction of the word ''superintendence''. Nothing was pointed out to us to put a narrow construction on
this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum
of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investigation if
the circumstances so warrant and there is nothing in the Code providing to the contrary so as to limit or fetter this power. Sub-section (8) of
Section 173 was pressed into service to show that the power of further investigation after the submission of a report u/s 173(2) would be with the
officer in charge of a police station. Sub-section (8) of Section 173 is not the source of power of the State Government to direct further
investigation. Section 173(8) enables an officer in charge of a police station to carry on further investigation even after a report u/s 173(2) is
submitted to court. But if State Government has otherwise power to direct further investigation it is neither curtailed, limited nor denied by Section
173(8), more so, when the State Government directs an officer superior in rank to an officer in charge of police station thereby enjoying all powers
of an officer in charge of a police station to further investigate the case. Such a situation would be covered by the combined reading of Section
173(8) with Section 36 of the Code. Such power is claimed as flowing from the power of superintendence over police to direct a police officer to
do not to do a certain thing because at the stage of investigation the power is enjoyed as executive power untrammelled by the judiciary. It was
incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in
that manner alone and the Court would not expect its being done in some other manner (See: State of Gujarat v. Shantilal Mangal Das).
Expounding the submission it was stated that Sub-section (8) of Section 173 clearly indicates the power of further investigation after submission of
a report and that power is conferred on the officer in charge of a police station only and, therefore, the State Government was incompetent to
direct further investigation. It was further contended that in view of the provision contained in Section 173(8) it would not be open to the Court to
so interpret the word ''superintendence'' in Section 3 of the Police Act as to empower the State Government to direct investigation being done by
some one other than the statutory authority envisaged by Section 173(8) because such an interpretation would derogate from the principle that
where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way. In
Ex parte Stephen, the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative
words, be done in any other way. Subba Rao, J in Patna Improvement Trust v. Smt. Lakshmi Devi, spelt out the combined effect of the
aforementioned principles thus:
A general Act must yield to a special Act dealing with a specific subject-matter and that if an Act directs a thing to be done in a particular way, it
shall be deemed to have prohibited the doing of that thing in any other way.
There is no warrant for invoking this principle because Section 5 of the Code provides that nothing in the Code shall, in the absence of specific
provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special
form of procedure prescribed, law for the time being in force. Section 3 of the Act does not prescribe any special procedure for investigation
contrary to one prescribed in the Code. It merely provides for conferment of certain power, which, when exercised, would project into the
provisions of the Code which confers power on the officer in charge of a police station to carry on further investigation u/s 173(8) after submission
of a report and that too without any permission of the Magistrate. There is no conflict between the two provisions. Power to direct investigation or
further investigation is entirely different from the method and procedure of investigation and the competence of the person to investigate. Section 3
of the Act as interpreted by us deals with the powers of the State Government to direct further investigation into the case. Undoubtedly, such
direction will be given to a person competent to investigate the offence and as has been pointed out, the police officer in rank superior to the police
officer in charge of the police station, to wit, Inspector General, Vigilance, has been directed to carry on further investigation. An officer superior in
rank to an officer in charge of a police station could as well exercise the power of further investigation u/s 173(8) in view of the provision
embodied in Section 36 of the Code. If that he so, such superior officer could as well undertake further investigation on his own and it is immaterial
and irrelevant that he does it at the instance or on the direction of the State Government. Such a direction in no way corrodes his power to further
investigate on his own.
The power of the Magistrate u/s 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the
power of the State Government as spelt out hereinabove. The power conferred upon the Magistrate u/s 156(3) can be exercised by the Magistrate
even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion
of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further
investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the
State Government in exercise of the power of superintendence u/s 3 of the Act lacked the power to direct further investigation into the case. In
reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of
a police station, which expression includes police officer superior in rank to such officer, cannot he questioned on the ground that such investigating
officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf
of respondent.
The above judgment rendered on an interpretation of Section 3 of the Indian Police Act, 1861 as there was no Police Act enacted by Bihar State -
The said judgment would apply on all fours to the present case on hand as Section 4 of the Karnataka Police Act, 1963 is in pari materia with
Section 3 of the Indian Police Act, 1861.
Insofar as the second part of the question is concerned, namely, whether the State Government could direct the COD to submit a report to the
Government, is concerned, in the instant case, the Government having directed the COD to take over the investigation of the pending cases which
pertained to allegations akin to the incidents enumerated by the Cooperation Department -the Code of Criminal Procedure does not envisage any
role to the State Government to deal with the investigation report which can only be submitted to the jurisdictional court and not the Government.
The direction to the COD by the Government to submit the investigation report to it, is therefore without sanction of law and without jurisdiction.
Incidentally, the standing order No. 630 dated 21.4.1974 - at one place contemplates, insofar as cases handled by the Special Enquiries Squad
are concerned, as follows:
All confidential enquiries entrusted to the CID by the Inspector General of Police and the Government, regarding complaints and allegations made
against persons and institutions.
The tenor of the above indicates a possible secretive probe into a ""complaint"" received other than by way of information given to an officer in
charge of a Police Station. And a ""confidential enquiry"" being conducted either at the behest of the Inspector General of Police or the Government.
The COD is not a statutory body, it is constituted by a government order as a Special Force to assist the District Police in the Prevention and
Detection of crime and cannot claim any power or privilege larger than provided under the Code of Criminal Procedure vis-a-vis its functions. The
duties cast on the police under the Cr.P.Code would equally apply in respect of any such request by the Government and any investigation or
confidential enquiry"", (sic) is concerned.
Similarly at Paragraph 1769 of the Police Manual it is provided thus:
As the COD is an exclusive investigating agency only cases entrusted by the Government of Karnataka and the Director General and Inspector
General of Police of Karnataka shall be taken up for investigation. Further as per the government order cases of the following nature are being
automatically taken up for investigation by the COD:
Custodian death
Dowry death
Gun-running and Counterfeit armory.
This does not invest the COD with any power other than is available to an officer in charge of a Police Station to investigate into a cognizable
offence nor does it absolve the COD of reporting the result of the investigation to the jurisdictional court. No such investigation report can be
submitted to the State Government. Such action is outside the scope of the Code of Criminal Procedure, 1973. The COD is not in a position to
act beyond the scope of the Code of Criminal Procedure, 1973.
The next question is as to the legality of the notices at Annexures 1 and M Series whereby the petitioner is called upon to produce witnesses and
documents by the Inspectors attached to the COD. In the light of the petitioner being named as an accused in Crime No. 208 and 209 of 2007 -
and having regard to the test laid down by the Supreme Court in the case of Nandini Satpathy Vs. P.L. Dani and Another, - the same is clearly in
violation of Article 20(3) of the Constitution of India and are liable to be struck down.
In the result, the following order:
The notification issued by the State Government at Annexure-K to the petition directing the COD to conduct further investigation is valid. The
investigation report after completion of investigation can only be submitted to the jurisdictional court which is seized of the matters in Crime No.
208/2007 and Crime No. 209/2007. The same cannot be submitted to the Government. That portion of the order directing the COD to this effect
is quashed.
The petitioner being the accused named in the first information report in the above cases - the notices at Annexures - 1 Series and M Series cannot
be sustained and are hereby quashed. There is however no impediment to further investigation and further proceedings in accordance with law.