IMPORTANT POINT
Court cannot direct investigation in a particular manner.

Judgment :

Dr. Arijit Pasayat, J.

Leave granted.

A very short point of is involved in this petition. The question is whether the court can direct that the Investigating agency has to focus on any particular offence and do the investigation accordingly. In the instant case by order dated 9.7.2007 the learned Metropolitan Magistrate, Patialia House directed the Investigating Officer to add Section 307 in the present case and investigate the matter properly. The said order was challenged before the High Court in Criminal M.C. No. 428/2008. The High Court held that the course adopted by the learned Metropolitan Magistrate was permissible in law.

Learned counsel for the appellant submitted that the view taken by the High Court is contrary to the law as settled by this court in a series of cases. Learned counsel for the State submitted that the law in the point has been settled by a series of decision starting from State of Bihar and Anr. Vs. J.A.C.Saldanha and Ors. 1980 (1) SCC 554 Para 10 S.M.Sharma Vs. Bipen Kumar Tiwari 1970 (3) SCR 946 Para 12 Abhinandan Jha & Ors. Vs. Dinesh Mishra (AIR 1968 SC 117) Para 16 King Emperor Vs. Khwaja Nazir Ahmad 1944 LR IA 203 Para 11; and One of the latest cases being M.C.Abraham and Anr. Vs. State of Maharashtra and Ors. JT 2002 (10) SC 482.

In the said case, the contention before this Court was that the High Court was in error in exercising jurisdiction under Article 226 of the Constitution at the stage when the Additional Chief Judicial Magistrate who had jurisdiction to entertain and try the case, had not passed upon the issues before him, by taking upon itself the appreciation of evidence involving facts about which there was an acrimonious dispute between the parties and giving a clean bill to the suspects against whom the first information report was filed.

In this connection this court relied upon the observations of the Privy Council in King Emperor Vs. Khwaja Nazir Ahmad : 1944 LR 71 IA 203, which reads thus:-

"In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it, and not until then".

Reference was also made to the observations of this Court in S.M. Sharma Vs. Bipen Kumar Tiwari : (1970) 3 SCR 946, wherein this Court observed:

"It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect hat 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".

This Court held in the case of J.A.C. Saldanha (supra) that there is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. It has been held as follows:

"Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintenden