SHARIFF AHMED & ORS.versusSTATE (NCT OF DELHI)

                        [2009] 8 S.C.R. 75


                    SHARIFF AHMED & ORS.                          A
                                v.
                     STATE (NCT OF DELHI)
                (Criminal Appeal No. 865 of 2009)

                         APRIL 24, 2009
                                                                  B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        INVEST/GA TION - Interference with by Court- Direction
    by Metropolitan Magistrate to add s.307 /PC in the case and   C
    then to investigate the matter - Upheld by High Court -
    HELD: Order of Metropolitan Magistrate and judgment of
    High Court are unsustainable and are set aside.

        The instant appeal was filed challenging the              D
    judgment of the High Court wherein it held that the
    course adopted by Judicial Magistrate directing the
    investigating officer to add s.307 IPC in the case and
    investigate the matter was permissible in law.

        Allowing the appeal, the Court                            E

        · HELD: The order of High Court is clearly
    unsustainable and is set aside. It is made clear that no
    opinion on merits of the case has been expressed.
    Though the charge-sheet for offence punishable u/s 307,       F
    IPC has already been filed, but that was in compliance
    with court's order. It is open to the Investigating Officer
    to file the charge-sheet afresh on the basis ofthe material
    collected during investigation. [Para 8] [80·8-D]

        M. C. Aabraham and Anr. vs. State of Maharashtra and G
    Ors. JT 2002(10) SC 482, relied on.
1
       · S.M. Sharma vs. Bipen Kumar Tiwari (1970) 3 SCR 946;
    State of Bihar and Anr. vs. J.A.C. Saldanha and Ors. (1980)
                                  75                              H
    76       SUPREME COURT REPORTS                  [2009) 8 S.C.R.


A   1 SCC 554 and Abhinandan Jha and Ors. vs. Dinesh Mishra               }..

    AIR 1968 SC 117, referred to.

         King Empror vs. Khwaja Nazar Ahmad 1944 LRIA 203,
    referred to.

B                         Case Law Reference :

         (1980) 1 sec 554           referred to           Para 3

         1970) 3 SCR 946            referred to           Para 3        ;.


c        AIR 1968 SC 117            referred to           Para 3

         1944 LRIA 203              referred to           Para 3

         JT 2002(10) SC 482         relied on             Para 3

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
D
    No. 865 of 2009.

        From the Judgment & Order dated 08.02.2008 of the High
    Court of Delhi at in New Delhi in Criminal M.C. No. 428 of 2008.

E        Aman Mehta and Anurag Pandey for the Appellant.

         B.B. Singh, Sadhna Sandhu, Vikas Malhotra and Anil
    Katiyar for the Respondents.

         The Judgment of the Court was delivered by
F
         DR. ARIJIT PASAYAT, J. 1. Leave granted.

       2. A very short point of law 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
G investigation accordingly. In the instant case by order dated
  9.7.2007 the learned Metropolitan Magistrate, Patiala House           \.-

  directed the Investigating Officer to add Section 307 in the                  {
  present case and investigate the matter properly. The said

H
  order was challenged before the High Court in Criminal M.C.
                                                                                '
     SHARIFF AHMED & ORS. v. STATE (NCT OF DELHI) 77
                [DR. ARIJIT PASAYAT, J.]

-4   No. 428/2008. The High Court held that the course adopted by A
     the learned Metropolitan Magistrate was permissible in law.

          3. 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
                                                                       B
     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
                                                                      c
         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
                                                                      D
 •       King Emperor vs. Khwaja Nazir Ahmad 1944 LR IA 203
         Para 11;

         and One of the latest cases being MC.Abraham and Anr.
         vs. State of                                                 E
         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 F
         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 G
         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.
                                                                      H
    78       SUPREME COURT REPORTS                  (2009] 8 S.C.R.


A        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 ·
B
         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
c        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
D        Criminal Procedure Code to give directions in the nature
         of habeas corpus. In such a case as the present, however,
         the Court's functions begin when a charge is preferred
          before it, and not until then".

E             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
F        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
G        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".

H                 This Court held in the case of J.A.C. Sa/danha
            SHARIFF AHMED & ORS. v. STATE (NCT OF DELHI)                  79
...i
                       [DR. ARIJIT PASAYAT, J.]
               (supra) that there is a clear-cut and well demarcated           A
               sphere of activity in the field of crime detection an'd crime
               punishment. It has been held as follows:

                      "Investigation of an offence is the field exclusively
               reserved by the executive through the police department,
                                                                              B
               the superintendence over which vests in the State
               Government. It is the bounden duty of the executive to
               investigate, if an offence is alleged, 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          c
               and the investigating officer submits report to the Court
               requesting the Court to take congnizance of the offence
               under section 190 of the Code of Criminal Procedure, its
                                              a
               duty comes to an end. On cognizance of the offence
               being taken by the Court, the police function of investigation D
               comes to an end subject to the provision contained in
               Section 173(8), then commences the adjudicatory function
               of the judiciary to determine whether an offence has been
               committed and if so, whether by the person or persons
               charged with the crime. In the circumstances, the judgment E
               and order of the High Court was set aside by this Court.

       ,        In the instant case the investigation is in progress. It is not
               necessary for us to comment on the tentative view of the
               investigating agency. It is the statutory duty of the F
               investigating agency to fully investigate the m;:itter and then
               submit a report to the concerned Magistrate. The
               Magistrate will thereafter proceed to pass appropriate
               order in accordance with law. It was not appropriate for the
               High Court in these circumstances to issue a direction that
       -1
                                                                                G
               the case should not only be investigated, but a charge
               sheet must be submitted. In our view the High Court
               exceeded its jurisdiction in making this direction which
               deserves to be set aside. While it is open to the High
               Court, in appropriate cases, to give directions for prompt
                                                                                H
    80        SUPREME COURT REPORTS                   (2009] 8 S.C.R.


A          investigation etc., the High Court cannot direct the
           investigating agency to submit a report that is in accord
           with its views as that would amount to unwarranted
           interference with the investigation of the case by inhibiting
           the exercise of statutory power by the investigating
B          agency."

           4. In view of what is stated in MC. Abraham's case (supra)
  the order of High court is clearly unsustainable and is set aside.
  We make it clear that we have not expressed any opinion on
  the merits of the case. It is brought to our notice by learned
C counsel for the State-respondent that the charge sheet has
  already been filed under Section 307, IPC. But that was in
  compliance with this court's order. It is open to the Investigating
  Officer to file the charge sheet afresh on the basis of the
  material collected during investigation.
D
       5. The appeal is allowed to the aforesaid extent.

    R.P.                                              Appeal allowed.