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IN THE HIGH COURT OF BOMBAY
Ashok Agarwal R.M.S Khandeparkar, JJ.
Shri Shravan Baburao Dinkar and another.... Petitioners.
Versus
Shri N.B. Hirve and others.... Respondents.
Criminal Writ Petition Nos. 301 and 302 of 1996, decided on 25-9-1996.
Advocates appeared :
S. R. Chitnis, Senior Advocate with S. V. Kotwal for the petitioner.
B. P. Apte, Addl. Advocate General with Rajiv L. Patil, P.P., for respondent Nos. 1, 2 and 4.
Kum. Kiran V. Gupta, for respondent No. 3.
Section 173-See Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 1989. Section 3(1)(x).
Sections 380 and 425-See Schedule Castes and the Scheduled Tribes [Prevention of Atrocities) Act. 1989. Section 3(1)(x).
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
2004 -Section 3(1)(x)-Indian Penal Code, 1860, Sections 380 and 425-Bombay Police Act, 1951, Section 96(1)(III)-Code of Criminal Procedure, 1973, Section 173-summaries filed by Police Commissioner-Enquiry by Dy. Commissioner of Police and filing summaries-In matter of atrocities-Challenge-Submission of Enquiry report ends the police power under Section 173. Cr PC Held. police commissioner not empowered to take any action under Section 96 taking cognizance by Police Commissioner illegal-Liable to be quashed.-Section 96 of the Bombay Police Act. 1951, provides that notwithstanding any thing contained in Sections 129, 130. sub-section (2) of Section 167 and Section 173 of the Code of Criminal Procedure, 1973 the officer in charge of the Police Station shall forward his report under Section 173 of the Code to the Commissioner or such other officer as the Commissioner may direct in this behalf. The provision, it is apparent provides for forwarding of a report under Section 173 of the Code. Such a report is required to be forwarded to the Commissioner or such other officer as the Commissioner may direct in that behalf. The aforesaid provision does not provide as to what the Commissioner is supposed to do with such a report submitted to him. The provision is meant merely in order to keep the Commissioner informed about the various reports which are required to be submitted under Section 173 to the magistrates. The reason is apparent far to see the Commissionerate areas are known to be infested with large number of crimes. The Commissioner being in charge of maintaining law and order in the Commissionerate area is, therefore required to take effective steps to ensure the maintenance of law and order by providing adequate police personnel at different centres having regard to the nature of offences which are seen to have been committed in different areas and having regards to the expertise of the police personnel at his command. Section 96 does not and cannot, confer any further power on the Commissioner on the basis of the copy of the report submitted to him. As far as the Magistrates are concerned. Section 190 Cr PC empowers them to take cognizance of the offences on the basis of the report submitted under Sections 173(2) and (8) of the Act Taking cognizance of offences is left exclusively within the province of Magistrate. The same has not and could not have been, left within the province of the Police Commissioner.
2.As far as the petitioner in Criminal Writ Petition No. 302 of 1996 is concerned, he filed a complaint at the Mahatma Phule Chowk Police Station, Kalyan alleging commission of an offence against employees of the Kalyan Municipal Corporation under sections 380, 425 and 488 of the Indian Penal Code. By an order passed by the Deputy Commissioner of Police, Kalyan. 'C' Summary is issued. The said order is impugned in Criminal Writ Petition No. 302 of 1996.
3.Both the petitions have challenged the vires of section 96 (1) (iii) of the Bombay Police Act, 1951 under which the aforesaid orders are sought to be justified. We , however, find that it is not necessary, in the facts and circumstances of the present case, to examine the challenge to the vires as, in our view, the petitions are liable to succeed on merits without going into the question of vires. Even if the provisions of section 96 of the Bombay Police Act are taken into account, the same, in our view, do not clothe the Commissioner of Police with the power to grant summaries as has been sought to be done in respect of the complaints filed by the present petitioners.
4.Since the orders impugned are sought to be justified with reference to section 96 of the Bombay Police Act, it may be useful, at this stage, to reproduce the relevant provision in so far as the same is necessary for resolving the controversy.
"96. (1) Notwithstanding anything contained in sections 129, 130, sub-section (2) of section 167, and section 173 of the Code of Criminal Procedure, 1898:
(i) ... ...
(ii) ... ...
(iii) the officer in charge of the Police Station shall forward his report under section 173 of the Code to the Commissioner or such other officer as the Commissioner may direct in that behalf."
5.It is contended on behalf of the petitioners that the aforesaid provision does not even remotely confer a power on the Police Commissioner or an officer designated by the Commissioner to pass orders granting summaries in respect of complaints filed at the Police Station. It is, however, contended on behalf of the State that the report, which is submitted by an officer in charge of a Police Station, is a report under section 173 of the Code of Criminal Procedure. Hence, the Police Commissioner or an officer designated by the Commissioner has the power to grant summaries as has been done in the present case.
6.A reference to the relevant provisions of the Criminal Procedure Code may now be made. The present Code has been enacted in 1973 and has replaced the Code of Criminal Procedure, 1898. The same has come into force with effect from 1st of April, 1974. Section 2(o) defines "officer in charge of a Police Station" to include when the officer in charge of the Police Station is absent from the station house or unable from illness or other cause to perform his duties, the Police Officer present at the station house, who is next in rank to such officer and is above the rank of constable or when the State Government so directs any other Police Officer so present. The aforesaid definition makes it clear that as far as the Commissioner of Police is concerned, he is not included within a definition of "officer in charge of Police Station" as defined
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