Judgment:
ORDER
M.S.A. Siddiqui, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondent No.5 to arrest his father (respondent No.4) in connection with the case FIR No.93/98 under Sections 380/406 IPC registered at the Police Station Nazafgarh.
2. It is undisputed that the respondent No.4, Mr. L.R. Gupta, Senior Advocate, of this Court is father of the petitioner. Respondent No.2, Sanjay Gupta is the younger brother of the petitioner and respondent No.3 is the wife of respondent No.2. On 7.3.1998, the petitioner lodged a report at the Police Station Nazafgarh charging Mr.L.R. Gupta with having committed theft of his firearms as well as the arms licenses. Consequently, FIR No.93/98 under Section 380/406 IPC was registered at the Police Station Nazafgarh. According to the petitioner, on 19.3.1998 the said firearms as well as licences were recovered from the bedroom of his father (respondent No.4). After recovery of the alleged stolen property Inspector Mahesh Kumar attempted to arrest the respondent No.2 but he was wrongfully prevented from doing so by the Police Commissioner, Delhi. The petitioner, thereforee, seeks direction for arrest of the respondent No.4.
3. By the order dated 3.8.98, show cause notice was issued to the respondent No.5 only. Mr. P.K.Bhardwaj, Deputy Commissioner of Police, South West District New Delhi has filed his counter affidavit stating therein that during investigation the firearms and the licenses were recovered from a portion of the premises No.6, Anand Lok in which the petitioner earlier used to reside and further, according to the statement of the respondent No.4, the firearms and the licenses were kept in the portion of the said house which was in occupation of the petitioner. He further stated that the investigation is in progress and after completion thereof the report will be submitted before the Court concerned embodying the result of the investigation.
4. Learned counsel for the petitioner has strenuously urged that since the petitioner's weapons and their licences were recovered from the possession of the respondent No.4, he is liable to be arrested in respect of the offence of theft committed by him. It is undisputed that the FIR No.93/98 lodged by the petitioner has been registered at the Police Station Nazafgarh under Section 380/406 IPC and the nvestigation is in progress. It is significant to mention that the petitioner contended that his firearms and licences were recovered from the bedroom of the respondent No.4 . On the contrary, Mr. P.K. Bhardwaj stated in his affidavit the said firearms were recovered from the portion of the house occupied by the petitioner. Thus, there is a dispute regarding the place of recovery of the said firearms, which cannot be decided in the present proceedings. The question which arises for consideration is as to whether this Court can direct the Station House Officer of the Police Station concerned to arrest the respondent No.4 in respect of the case registered under Sections 380/406 IPC vide FIR No.93/98. In order to appreciate the contention raised by the learned counsel for the petitioner, it is necessary to refer to the provisions contained in Chapter XII of the Code of Criminal Procedure (for short 'the Code'). That chapter deals with 'information.' to the police and their powers to investigate.' Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155 deals with information in respect of noncognizable offences. Section 156 empowers a police officer, in charge of a police station, to investigate any cognizable offence, without the orders of the magistrate. Sub section (3) of Section 156, authorises a Magistrate empowered under section 190, to order investigation as mentioned in Section 156(1). Section 157 prescribes procedure for investigation in respect of commission of a cognizable offence. In cases where a cognizable offence is suspected to have been committed, the officer in charge of a police station, after sending a report to the Magistrate, is entitled under Section 157 to investigate the offence and also to take steps for discovery and arrest of the offender. Clause (b) of the proviso to section 157(1), authorises an officer-in-charge of Police Station not to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation. thereforee it will be seen that large powers are conferred upon the police in the matter of investigation into a cognizable offence. Section 159 authorises a Magistrate, on receiving a report under Section 157, either to direct investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case in accordance with the procedure laid down in the Court. Sections 160 to 163 deal with the power of the police to require attendance of witnesses and their examination during investigation. Section 165 and 166 deal with the power of police officer in the matter of conducting searches during an investigation. Section 167 provides for the procedure when an investigation cannot be completed in 24 hours. Section 168 prescribes that when a subordinate police officer makes an investigation under Chapter XII, he should submit his report embodying result of the investigation to the officer in charge of the police. Section 169 gives power to a police officer to release a person from custody, on his executing a bond to appear, if and when so required before a Magistrate in case when, on investigation, it is found that there is no sufficient evidence for forwarding the accused to a Magistrate. Section 170 prescribes that if upon investigation it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report. If the offence is bailable, the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Section 172 casts a duty on the investigating officer officer to maintain a diary recording the various particulars indicated in that section. Section 173 makes it obligatory on the officer-in-charge of the police station to send a report to the Magistrate concerned containing the necessary particulars indicated in that section.
5. Thus the scheme of Chapter XII lays down elaborate provisions for securing that an investigation does take place into a reported offence and the investigation is carried out in accordance with law without causing any harassment to the accused and is also completed without unnecessary or undue delay. It needs to be highlighted that the manner and method of conducting investigation are theft entirely to the police, and the Magistrate has no power under any of the aforesaid provisions to interfere with the same. There is no power, expressly or impliedly, conferred under the Code on a Magistrate to direct the police to arrest a person during investigation of a case. Under the Code of Criminal Procedure, the functions of the magistracy and the police are entirely different. In this context, we may refer to the following observations of the Privy Council in King Emperor Vs . Khwaza Nasir Ahmad :
'Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of enquiry. 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 the requiring any authority 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 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 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.....'
6. It is also pertinent to mention that the scheme of Chapter XII clearly shows that the formation of an opinion as to whether or not there is a case to arrest or to place we accused on trial has been left to the officer-incharge of a police station. In this connection, a reference to the following observations made by the Apex Court in H.N. Rishbud Vs . State of Delhi : 1955CriLJ526 has become indispensable:
'Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173. The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station.'
7. Thus the investigation of a case takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to arrest a person and place him on trial. The arrest of a person during investigation under the Code depends upon the opinion formed by the police and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion on the investigation and to arrest a person or to submit a report according to such opinion. That will be really encroaching on the statutory functions of a police and compelling the police to form an opinion so as to accord with the opinion of the Magistrate. That is wholly impermissible in law. In the instant case, the matter is under investigation and the investigating officer has to form an opinion as to whether on the material covered and collected a case is made out to arrest the respondent No.4. In this view of the matter, this Court cannot certainly impinge upon the jurisdiction of the police by compelling them to form an opinion for arresting the respondent No.4.
8. For the foregoing reasons, the writ petition being devoid of merit, is dismissed.