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2000(2) Crimes 187 (SC)
Supreme Court of India
(From Madras High Court)
K.T. Thomas & D.P. Mohapatra, JJ.
R. Sarala — Appellant
versus
T.S. Velu & Ors. —Respondents
Criminal Appeal Nos. 366-368 of 2000
(Arising out of SLP (Crl.) Nos. 2711-13 of 1999)
Decided on 13-4-2000
Counsel for the Parties :
For the Appellant : S. Sivasubramaniam, Sr. Advocate, T. Raja, Advocate.
For the Respondents : V. Balachandran, V.G. Pragasam, Advocates.
Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the court on culmination of investigation. Its exception is that Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek opinion of a Public Prosecutor under the orders of court. Here is a case wherein the investigation officer concerned is directed by the High Court to take back the case from the court whereat it was laid by him after completing the investigation and he is further directed to consult the Public Prosecutor and submit a fresh charge-sheet in tune with the opinion of the Public Prosecutor. Is such a course permissible in law? (Para 2)
It is always open to any officer, including any investigating officer, to get the best legal opinion on any legal aspect concerning the preparation of any report. But the real question is, should the High Court direct the investigating officer to take opinion of the Public Prosecutor for filing the charge sheet. The question here is not simply whether an investigating officer, on his own volition or on his own initiative, can discuss with the Public Prosecutor or any legal talent, for the purpose of forming his opinion as to the report to be laid in the Court. (Para 6)
Section 173(1) casts an obligation for completing the investigation without necessary delay and sub-section (2) enjoins on the officer in charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer in charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank. Public Prosecutor is appointed, as indicated in Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. He is the officer of the court. Thus Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the Court. The investigating officer, though is subject to supervision by his superiors in rank is, not to take instructions regarding investigation of any particular case even from the executive government of which he is a subordinate officer. (Paras 8, 10 and 13)
Result : Appeals allowed.
Key Points: - The role of the Public Prosecutor is inside the court after the investigation is presented, and they are not involved in the investigation stage (!) (!) (!) . - The court cannot direct the investigating officer to take back the final report and file a fresh report incorporating the Public Prosecutor’s opinion (!) (!) . - Investigation and prosecution are separate functions; no investigating agency can be compelled to seek the Public Prosecutor’s opinion under court orders (!) (!) (!) .
Judgment
Thomas, J.—Leave granted.
2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the court on culmination of investigation. Its exception is that Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek opinion of a Public Prosecutor under the orders of court. Here is a case wherein the investigation officer concerned is directed by the High Court to take back the case from the court whereat it was laid by him after completing the investigation and he is further directed to consult the Public Prosecutor and submit a fresh charge-sheet in tune with the opinion of the Public Prosecutor. Is such a course permissible in law?
3. A summary of the factual background of this case can be given thus:
A young bride—Selvi committed suicide on 29.12.1997 by hanging herself on a ceiling fan in the bedroom of her nuptial home. Her husband was Arasu Elango. Their marriage was solemnised on 12.5.97. As the interval between their wedding and Selvi’s suicide was so short that an inquiry under Section 174(3) of the Code of Criminal Procedure (for short ‘the Code’) was held. The Sub Divisional Magistrate conducted the inquiry and submitted a report holding that “it is conclusively proved that due to mental restlessness Selvi had committed suicide; no one is responsible and hence it is informed that her death is not due to dowry harassment.”
3.1. However, the police continued with the investigation and submitted a challan against Arasu Elango and his mother for the offences under Section 304-B and 498-A of the IPC. Selvi’s father - the first respondent herein - was not satisfied with the aforesaid challan as Arasu Elango’s sister (the present appellant) and her father were not arraigned as accused. Hence he moved the High Court of Madras under Section 482 of the Code. Learned Single Judge of the High Court who disposed of the above petition by an order dated 8.2.1999 has directed thus :
“Hence, it is ordered that papers shall be placed before the Public Prosecutor, Cuddalore District as it is without any further investigation and he shall render an impartial opinion on the matter and thereafter an amended charge-sheet shall be filed in the concerned court.”
3.2 Appellant’s father (V. Ramalingam) on coming to know of the said order filed a petition before the learned Single Judge for recalling it on the main ground that neither he nor his daughter (appellant) was heard nor were they made parties in the proceedings. But the learned Single Judge dismissed the petition on the main premise that Section 362 of the Code contains a bar against recalling any order passed under the Code. Hence the appellant filed this appeal in challenge of both the orders.
4. No endeavour was made before us to canvass against the correctness of the view adopted by the learned Single Judge that the order dated 8.2.1999 could not be recalled by him due to the bar contained in Section 362 of the Code. But even assuming it be so, that does not bar this court in considering the legality of that order in this appeal.
5. Mr. S. Sivasubramaniam, learned senior counsel, who argued for the appellant, contended that learned Single Judge had seriously erred in directing the investigating officer to submit the amended charge sheet in accordance with the opinion of the Public Prosecutor. Shri V. Balachandran, learned counsel arguing for the first respondent, tried to support the impugned order on the premise that there is nothing objectionable for the investigation officer to consult the Public Prosecutor before laying a report under Sectio
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