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1996 Supreme(Mad) 917
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. K.A. SWAMI AND THE HONOURABLE MR. JUSTICE RAJU
Messrs Mithals International - Appellant
Versus
Assistant Commissioner of Police, Central Crime Branch, Egmore, Madras-8 - Respondents
W.A. No. 814 of 1996
Decided On : 05 September 1996
The police have unfettered power to investigate all cases where they suspect that a cognizable offence has been committed and the Magistrate has no power to stop an investigation by the police.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3), 159 - INVESTIGATION - MANDAMUS - COURT CANNOT DIRECT POLICE TO INVESTIGATE A COMPLAINT - REMEDY LIES IN FILING A PRIVATE COMPLAINT BEFORE THE JURISDICTIONAL MAGISTRATE.
Fact of the Case:
The petitioner sought a writ of mandamus directing the respondent to investigate and launch prosecution on the basis of a complaint alleging criminal embezzlement and misappropriation of funds.
Finding of the Court:
The court held that the police have unfettered power to investigate all cases where they suspect that a cognizable offence has been committed and that the Magistrate has no power to stop an investigation by the police.
Issues: Whether the court can direct the police to investigate a complaint.
Ratio Decidendi: The court held that the petitioner has a substantial remedy of filing a private complaint before the jurisdictional Magistrate and that the Magistrate is bound to take up the case immediately and deal with it according to law.
Final Decision: The court dismissed the writ appeal and held that it will not exercise jurisdiction under Article 226 of the Constitution to direct the police to investigate a complaint.
K. A. SWAMI, C.J.
This appeal is preferred against the order D/- 16-8-1996 passed by the learned single Judge, rejecting W.P. No. 11429 of 1996, in which the petitioner has sought for issue of a writ in the nature of mandamus directing the respondent to undertake full investigation and launch prosecution on the basis of the complaint given by it on 20th May, 1996 and to pass such other orders as are deemed necessary
2. According to the case of the petitioner, there has been a criminal embezzlement committed by one Arjunan, who acted dishonestly and committed Criminal breach of trust and misappropriated to the tune of Rs. 2, 05, 350/-. The respondent has informed the petitioner as follows :-
"As there is no penal offence, further action was dropped on your complaint. This is for your information." *
3. It is contained very strenuously that as the complaint filed before the respondent disclosed the Criminal offence of misappropriation and fraud, it was the bounden duty of the respondent to investigate and file a charge-sheet
4. It may be pointed out here that if the respondent has failed to perform his duties, nothing prevents the petitioners to approach the Magistrate and file a complaint requesting him to take congnisance of the offence and direct the Police to investigate into it and file a charge-sheet. It is not necessary that this Court should exercise in each and every such case jurisdiction under Article 226 of the Constitution and to issue a direction to the investigating agency
5. In the decision in S. N. Sharma v. Rupen Kumar Tiwari reported in1970 CAR 199, 1970 (76) CRLJ 764, 1970 (1) SCC 653, 1970 SCC(Cr) 258, 1970 (3) SCR 946, 1970 (2) MLJ 81, 1970 ALJ 1348, 1970 SCC(Cri) 258, 1980 All(LJ) 1348, 1970 AIR(SC) 786 there was a complaint before the Police Station Cantonment, Gorakhpur, alleging that certain goondas attacked the respondent, in pursuance of which the Police started the investigation. The appellant moved an application before the Judicial Magistrate for invoking the provisions of Section 159 of the Code of Criminal Procedure and for conducting the inquiry. The Magistrate directed the Police to stop the investigation and decided to hold the inquiry himself. An application was filed in the High Court under Section 561-A of the Code of Criminal Procedure for quashing the order. The High Court allowed the application and quashed the order of the Magistrate holding that the Police was at liberty to investigate and submit a report. The Supreme Court reversed the order of the High Court and held as follows :-(i) In sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190 is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate
(ii) Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence
(iii) Though the Code of Criminal Procedure given to the police unfertered power to investigate all cases where they suspect that 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
