ORDER
L. Narasimha Reddy, J.
1. The 3rd respondent submitted a complaint on 21-12-2002 to the Chapadu PS, Kadapa District, alleging that on the previous day, his uncle by name M.Laxmi Reddy went to his field for watering the crop at about 10-00 p.m., and that the writ petitioner and his two sons along with 4 others named in the complaint went to the same field and removed the bund. It was alleged that when Laxmi Reddy objected to the same, the writ petitioner and other accused attacked him resulting in bleeding injuries. Laxmi Reddy died on 22-12-2002. Cr.No. 75 of 2002 was registered on the basis of the complaint. The petitioner was shown as Al and his sons as A2 and A4.
2. The petitioner submitted representation on 24-12-2002 to the Superintendent of Police, Cuddapah, the 1st respondent herein. It was his case that he was a chronic TB patient and he was advised not to go out during night times. According to him, he did not go out even on the date of incident and he was very much in the house at the time of the incident. He pleaded alibi. Acting on the representation, the 1st respondent issued Memo dated 6-1-2003 to the effect that plea of alibi is proved and instructed the 2nd respondent, the Circle Inspector of Police, to take necessary action to delete the name of the petitioner.
3. The 1st respondent issued another Memo dated 28-2-2003 to the effect that a further enquiry into the Alibi Petition submitted by the petitioner i.e., A2 and his son A4 in Cr.No. 75 of 2003 under various sections revealed that their contention is not true. Consequently, he directed the Sub-Divisional Police Officer, Proddatur to arrest A1 and A4, under Section 302 IPC. The petitioner challenges the same. According to him, once the 1st respondent has taken a view that the plea of alibi by the petitioner was found proved, it was not open to him to take a different view. It is also his case that the impugned order discloses non-application of mind inasmuch as A4 had already surrendered before this Court and was released on bail in Cr.M.P.No. 43 of 2003 and the question of arrest of A4 does not arise.
4. The 1st respondent filed counter-affidavit. It is stated that on receipt of representation dated 24-12-2002, he called for a report from the 2nd respondent. A report is said to have been submitted by the 2nd respondent to the effect that no one had spoken against the petitioner during the enquiry Memo dated 6-1-2003 is said to have been issued on the strength of the report. It is also stated that the 3rd respondent filed a representation dated 25-1-2003 in this regard. A further investigation is said to have been caused and based on the same, the impugned Memo is stated to be issued.
5. The 3rd respondent filed a counter-affidavit. He denied the allegations of the petitioner. He has also stated that on coming to know that the 1st respondent issued Memo dated 6-1-2003, he submitted a representation dated 25-1-2003 to him and has filed W.P.No. 4164/2003 in this Court. He pleads that there is no illegality or infirmity with the impugned order.
6. Sri D.Sudershan Reddy, learned Counsel for the petitioner, submits that the petitioner was not involved in the offence at all and he was implicated wholly on account of certain political rivalries. According to him, on a consideration of the application submitted by the petitioner, the 1st respondent verified and examined the matter and issued Memo dated 6-1-2003, directing the 2nd respondent to delete the name of the petitioner from the list of the accused. He submits that the 1st respondent issued this Memo in exercise of power under Section 36 of Cr.P.C., and it was impermissible for the 1st respondent to issue the impugned order.
7. Learned Government Pleader for Home, on the other hand, submits that the investigation into Cr.No. 75 of 2002 continued with the 2nd respondent and the 1st respondent never undertook the investigation by himself and as such the Memo dated 6-1-2003 cannot be traceable to the power under Section 36 of Cr.P.C. It is also his contention that even assuming that the 1st respondent is said to have issued Memo dated 6-1-2003 directing deletion of the name of the petitioner from the list of the accused, no exception can be taken to the impugned order, since it is competent for the investigating authority to examine the matter from various angles. According to him, the tentative opinions during the course of investigation may keep on varying and what ultimately matters is the report that is required to be submitted to the Court after investigation.
8. Sri L.J. Veera Reddy, learned Counsel for the 3rd respondent, in addition to repeating the contentions of the learned Government Pleader, has also submitted that even while the matter was under investigation, the petitioner has approached the 1st respondent with an application by using his clout. According to him, the 1st respondent issued Memo dated 6-1-2003 without properly investigating into the matter. He submits that his client has filed WP.No. 4164 of 2002 challenging the Memo dated 6-1-2003. Having realised that he cannot undertake a parallel investigation, the 1st respondent had issued the impugned order. He submits that the impugned order is nothing but a step to correct the mistake committed while issuing Memo dated 6-1-2003.
9. The petitioner was shown as Accused No. 1 (A1) in Cr.No. 75/02, which related to the offences under Sections 147, 148, 324, 307, and 302 read with 149 IPC. On coming to know the same, the petitioner submitted a representation on 24-12-2002 before the 1st respondent taking the plea of alibi. The 1st respondent issued Memo dated 6-1-2003 to the following effect:
'In view of the proval of Alibi of Elluru Pedda Dastagiri Reddy (A1) in Cr.No. 75/ 2002 under Sections 147, 148, 324, 302 read with 149 IPC of Chdpadu PS, C.I. of Police, Proddatur Rural is instructed to take necessary action to delete the name of the above accused from the list of accused.'
Challenging this Memo, the 3rd respondent herein filed W.P. No. 4164 of 2003. He has also submitted representation dated 25-1-2003. Claiming to have undertaken further enquiry, the 1st respondent issued the impugned order dated 28-2-2003, which reads as under:
'Further enquiry on the alibi petition of Elluru Pedda Dasthagiri Reddy, A1 and Elluru Chandra Obul Reddy, A4, of Annavaram Village of Chapadu (M) in Cr.No. 75/2002 under Sections 147, 148, 324, 307, 302 read with 149 IPC of Chapadu PS revealed that Al Elluru Pedda Dasthagiri Reddy and A4 Elluru Chandra Obul Reddy represented in the alibi petition that they were not involved in the above said case is not true.
Hence; SDPO is directed to arrest the accused A 1 and A4 under Section 302 IPC.'
10. It needs to be observed that the impugned memo dated 28-2-2003, sets at naught, the directions issued by the 1st respondent through his Memo dated 6-1-2003. The petitioner can have genuine grievance if the Memo dated 6-1-2003 invests him with a legally enforceable right. It is only in the event of an affirmative answer emerging from this query that the necessity would arise to further examine as to the legality or otherwise of the impugned Memo.
11. The learned Counsel for the petitioner traces the Memo dated 6-1-2003 to the power of the 1st respondent under Section 36 of Cr.P.C. Admittedly, the 2nd respondent, The Circle Inspector of Police, has taken up the investigation into the crime. Section 36 of Cr.P.C., empowers any Police Officer, who is superior in rank to the one in- charge of the Police Station, to exercise the same power through out the local area to which he is appointed. The Section reads as under:
'Police Officer superior in rank to an officer-in-charge of a police station may exercise the same powers, through out the local area to which they are appointed, as may be exercised by such officer within the limits of his station.'
12. The learned Counsel or the petitioner and the respondents have citied several decisions, such as, Raghunath Sharma v. State, : AIR1963Pat268 , Ram Autar v. State of Bihar, 1986 Crl. LJ 51, R.Sarala v. T.S.Velu, AIR 2000 SC 1731, CBI v. State of Rajasthan, : 2001CriLJ968 , T.T.Antony v. State of Kerala, : 2001CriLJ3329 , and M.C.Abraham v. State of Maharashtra, : [2002]SUPP5SCR677 . On a perusal of these decisions, it is evident that in none of the said cases, the scope and ambit of Section 36 directly fell for consideration. If at all there was any discussion on this aspect, it was rather incidental to the main issue in the respective cases.
13. Section 36, in unequivocal terms, empowers a superior Police Officer to exercise such of the powers as are conferred on a Station House Officer (SHO). It is in consonance with the settled principle of Administrative Law that a superior officer is always competent to exercise such powers as are conferred upon his inferiors. An important aspect, which needs to be noticed in such instances, is that there can be no simultaneous exercise of powers by them.
14. Neither Section 36 nor any other analogous provision empowers simultaneous and parallel exercise of power by the concerned SHO as well as the superior authorities as regards the same subject-matter. The Code of Criminal Procedure delineates the nature and extent of powers conferred upon, method of discharge and exercise of such powers by the SHO in relation to investigation into and prosecution of offences. Once investigation is taken up by the SHO, he has to proceed with the same and conclude it in the manner provided for under the Cr.P.C., subject to the general superintendence by the superior officers. Even while the general power of superintendence continues in the superior officers, the obligation and power to investigate into the matter continues to be with the SHO.
15. Power of superintendence by a superior Police Officer cannot be mistaken for the power to undertake the investigation itself, by such Superior Officer under Section 36 of Cr.P.C., even while the investigation continues to be with the SHO. As and when a Superior Police Officer chooses to exercise the power under Section 36, for all practical purposes he becomes the investigating agency. Once such officer assumes to himself the power or task of investigation into a crime, the SHO becomes denuded of such power and cases to be in-charge of investigation of the crime. The Cr.P.C., does not provide for simultaneous and parallel investigation by the SHO, on one hand, and the superior Police Officer, on the other. In fact such a course of action may prove to be hazardous in several cases. Depending on the gravity of the crime and complexity in the investigation, a Superior Officer may choose to take up the investigation into a particular incident. In a given case, the Government itself may direct the investigation to be undertaken by a superior Police Officer. As observed earlier, in such instances, the whole investigation into the crime comes to be undertaken by such superior Police Officer.
16. There is nothing on record to indicate that the 1st respondent has taken upon on himself the power to investigate into the Crime No. 75/2002 of PS Chapadu. On the other hand, the counter-affidavit filed by the 1st respondent suggests that the 2nd respondent is investigating into the matter. That being the case, there was no legal basis for the 1st respondent to direct the Station House Officer to delete or include any name in the list of accused. Memo dated 6-1-2003 does not disclose the nature of powers exercised and the manner of investigation taken lip by him, or the material on the basis of which he issued the Memo. If at all anything, the said Memo discloses lack of proper comprehension of the scope of the provisions of Cr.P.C., on the part of the Officer who issued it. Therefore, it cannot be said that any valid and legally enforceable right had accrued to the petitioner, on the basis of the said Memo.
17. The impugned order has the effect of nullifying the Memo dated 6-1-2003. It was not as if, by the time the impugned order came to be passed, the name of the petitioner stood deleted from the list of the accused, and on the basis of the impugned order it is sought to be reinducted. Even before any step could be taken in pursuance of the Memo dated 6-1-2003, the impugned order dated 28-2-2003 came to be issued. Once it emerged that the Memo dated 6-1-2003 and not invest the petitioner with any legally enforceable right and that the impugned Memo is nothing but retracing an otherwise unsustainable step, no exception can be taken to the impugned order.
18. The matter can be examined from another angle. Even on the premises that it was permissible in law for the 1st respondent to have directed deletion of the name of the petitioner front the list of accused in exercise of the power of superintendence, it has to be noticed that the result of investigation can be discerned only from the report that may be submitted by the Police before the Court under Section 173 Cr.P.C., on completion of the investigation. During the course of investigation, several developments are bound to take place. Depending on the disclosures or the information that may be gathered in the course of investigation, names of persons who figured in the complaint may be deleted and names of those, which do not find place in the complaint, may be included. The complaint submitted to the Police would only trigger off the investigation. It cannot constitute the sole basis for the investigation nor the contours of investigation be confined to the contents of the complaint.
19. Investigation is a process comprising of several stages and aspects. In H.N. Rishbud v. State of Delhi, : 1955CriLJ526 , the Supreme Court held that investigation, in the normal parlance, comprises of five steps, viz.,
1. Proceeding to the spot;
2. Ascertainment of the facts and circumstances of the case;
3. Discovery and arrest of suspected offender;
4. Collection of evidence relating to commission of the offence, which may comprise of examination of persons and recording their statements and search of places or seizure of things; and
5. Formation of opinion as to whether, on the material collected, the case of the accused be placed for trial before the Magistrate, by filing a charge-sheet under Section 173 of Cr.P.C.
During the course of investigation, the pendulum of suspicion may keep on oscillating through out all these stages. It is only when such pendulum comes to standstill, that the investigation can be said to have been completed. No individual can claim a right on the basis of a tentative opinion that may have emerged during the course of investigation. The investigating agency would submit a report, be it in the form of a charge-sheet or a final report, depending on the outcome of investigation. The truth or otherwise of the allegations against the accused would be decided only by the concerned Court of Trial. The Cr.PC., does not provide for the examination or verification by Courts of every stage of investigation. Viewed form this angle, the opinions contained in Memo dated 6-1-2003 and the impugned Memo dated 28-2-2003 can be said to be only tentative, which ultimately have to yield and give way to the final opinion that may be indicated in the charge-sheet or final report, as the case may be.
20. Hence, this Court does not find any basis to interfere with the impugned Memo. The writ petition is accordingly dismissed. No costs.