Supreme Court unlikely to help Rhea Chakraborty – Understanding the Role of Courts during Investigation

The death mystery of Sushant Singh coupled with Supreme Court reserving its order in case of Rhea Charkraborty vs State of Bihar regarding transfer of investigation from Bihar to Maharashtra and competence of CBI to take up investigation has given unfortunate scope to many legal writers to write on different issues touching this case. The major issues related to case are:

Introduction

‘Investigation’ is the process of inquiring, bring about and getting vital information, discovery of facts and circumstances to establish the truth. The key underlying principle of investigation of a crime is a concept that is known as ‘Locard’s Exchange Principle’. This principle can be summed up as ”Every contact leaves a trace”.

For investigation to commence, registration of a FIR is not a sine qua non.[i] Human dignity is a dear value of our Constitution. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is the basic structure of our constitution.[ii]

Investigation beyond Territorial Jurisdiction

The contention that an investigation cannot be conducted by an officer having no territorial jurisdiction had been repealed by the Supreme Court of India time and again.[iii]

The power to investigate beyond territorial jurisdiction is provided by Sect. 156(1) of CrPC[iv], which enables the investigative agency to investigate cognizable offence committed outside its territorial jurisdiction. The section says that it is not within the jurisdiction of investigative agency to refrain itself from conducting proper and complete investigation merely on the basis of reaching the conclusion that offence was committed outside its jurisdiction. Moreover by virtue of case laws and Sect. 154[v] it is the duty of SHO or Officer in charge of Police Station to record FIR whenever they receive information regarding commission of cognizable offence whether the crime was committed within their territorial jurisdiction or not. If they refuse to register on the basis of lack of jurisdiction to investigate then the police officials will be prosecuted for dereliction of duty.

Zero FIR

So there are two possible situations: One where after disclosing the information about commission of cognizable offence police becomes aware that offence was committed outside their territorial jurisdiction and second where after recording information and during the course of investigation police came to know the fact that offence was committed outside their jurisdiction. In both the cases if the information discloses commission of cognizable offence, then it is mandatory for the police to register FIR. This is called Zero FIR and Police will not number it. In such cases police will do the investigation and will prepare police report and then send it along with evidence collected under Section 170 CrPC[vi] to the Magistrate empowered to take cognizance (basically forwarding the case to concerned magistrate).

So once the investigation is over, if the investigating officer thinks at the conclusion that the cause of action has not arisen within his territorial jurisdiction, then he will forward the final report of the case to the magistrate concerned empowered to take cognizance.[vii]

Process of Investigation and Role of Courts

Adjudication is the function of judiciary. On cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision of further investigation and supplementary chargesheet contained in Section 173 (8)[viii]. From there commences the adjudicatory function of judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence, if proved to the satisfaction of the Court. Thus there is well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate.[ix]. The Court should be quite loathe to interfere at the stage of investigation, a field of activity reserved for Police and the executive.[x]

Magistrate is kept in the picture at all stages of the police investigation

In one of the cases it was observed that a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept informed at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted.[xi]

The executive function of the police department

Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive, who is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed, it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code[xii] its duty comes to an end subject to the provision contained in Section 173(8).  

Transfer under Section 406 CrPC

Under Section 406 of CrPC, the Apex Court can transfer “any particular case or appeal” from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.

Though the term “case” has not been defined under CrPC, yet the same has been judicially defined to be a judicial proceeding pending before a court of law for determination of an issue. After completion of investigation, the investigating officer can file a final report which may be a chargesheet or a closure report. Once such a report is filed under Section 173 of CrPC, under which a court of law derives jurisdiction to inter alia take cognizance under Section 190(1)(b).

It is, therefore, evident that taking of cognizance is the starting point of a judicial proceeding or a case. And till such time no cognizance is taken on the chargesheet, no judicial proceeding has said to have been commenced.[xiii]

It is to be noted that a ‘case’ does not include any pending investigation. Thus Section 406 of CrPC cannot be triggered to transfer any pending investigation. The Apex Court in Dr. Ramchandra Singh Sagar & Anr. v. State of TN & Anr[xiv]while adjudicating an application under Section 406 CrPC Justice Krishna Iyer observed that under Section 406 of the Cr.P.C the Supreme Court is not empowered to transfer investigation from one police station to another when no case is pending before any court at that point of time.

Further, in the case of Naresh Kavarchand Khatri v. State of Gujarat & Anr.[xv], the Supreme Court while dealing with a similar power of the High Court to transfer cases under Cr.P.C held that the power of the court to interfere with investigation is limited and that the court should not interfere at an initial stage. On the basis of various previous rulings of the Supreme Court, it was held that only during the investigation will the territorial jurisdiction of a matter become evident and therefore it was stated that at the stage of investigation, it cannot be said that I.O does not have the jurisdiction to investigate the case.

Even though the Supreme Court has wide powers under Article 142 of the Constitution[xvi], it has been held that such wide power shall not be used contrary to settled law and must also be used sparingly.

Conclusion

Based on the statutory power of police to register FIR and investigate if the offence comes out to be cognizable and limited powers of the court during investigation stage (based on separation of power theory) it is unlikely that Supreme Court will interfere in the investigation carried out by Bihar Police (later transferred to CBI by a government order) unless it causes serious prejudice to the accused and witnesses concerned. Section 406 of CrPC for transfer requires the stage of Case, which this matter is yet to reach. There is no problem in investigation carried out by two investigation agencies regarding a single case, what CrPC prohibits is trial of same case by two Magistrates because in such a case there are chances of conflicting verdicts. So in case if these two agencies submit chargesheet or police report to two different magistrates then in that case in the interest of justice the apex court can transfer the matter to any one magistrate.

Note: The views are personal only and will be corrected if required based on the awaited decision of Hon’ble Apex Court.


[i] Emperor Vs. Khwaja Nazir, and Apren Joseph @ Current Kunjukunju and Ors Vs. State of Kerala, 1973 Crl.L.J 85.

[ii] State Of Haryana And Ors vs Ch. Bhajan Lal And Ors 1992 AIR 604).

[iii] Rasiklal Dalpatram Thakkar v. State of Gujarat

[iv] https://indiankanoon.org/doc/1291024/

[v] https://indiankanoon.org/doc/1980578/

[vi] https://indiankanoon.org/doc/1367808/

[vii] Manoj Kumar Sharma v. State of Chhattisgarh.

[viii] https://indiankanoon.org/doc/1412034/

[ix] State Of Bihar And Anr vs J.A.C. Saldanha and Ors, 1980 AIR 326.

[x] King Emperor v. Khwaja Ahmad, [1944] L.R. 71 I.A. 203 at 213.

[xi]  (1992 AIR 604).

[xii] https://indiankanoon.org/doc/686759/

[xiii] Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda & Ors

[xiv] 1978 AIR 475.

[xv] AIR 2008 SC 2180.

[xvi] https://indiankanoon.org/doc/500307/


ABOUT THE AUTHOR

Harshit Sharma

Harshit

Harshit Sharma has done his B.A., LL.B (Criminal Law Hons.), from National Law University, Jodhpur (2019) and he completed his Masters in Criminal Law in July 2020. He secured AIR-15 in CLAT PG (2019) and he has Qualified NTA NET (December 2019). Currently, he is preparing for his Delhi Judicial Services 2019 Interview and simultaneously working for his PhD enrolment. He can be reached at harshitsharmanluj@gmail.com.

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