State of West Bengal vs S. N. Basak

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 30 of 1961

Decision Date: 12 April 1962

Coram: J. L. Kapur, K. C. Das Gupta, Raghubar Dayal

In this case the Supreme Court recorded that the petition was filed by the State of West Bengal against S. N. Basak and that the judgment was delivered on 12 April 1962. The bench consisted of Justice J. L. Kapur, Justice K. C. Das Gupta and Justice Raghubar Dayal. The citation of the decision was reported as 1963 AIR 447 and 1963 SCR (2) 52, with subsequent references in later reports. The headnote explained that a Sub‑Inspector of the Police Enforcement Branch had lodged a written report before the officer‑in‑charge of a police station, alleging that the respondent together with three other persons had committed offences punishable under sections 420 and 120B of the Indian Penal Code. Following the report a First Information Report was entered and a criminal investigation was commenced. The respondent subsequently surrendered before a judicial magistrate, was released on bail and later filed an application in the High Court invoking sections 439 and 561A of the Code of Criminal Procedure seeking to have the case pending before the magistrate, which arose out of the police case, quashed. The High Court granted the application. Dissatisfied with that order, the State of West Bengal obtained a certificate under Article 134(1)(c) of the Constitution and appealed to the Supreme Court. The Court held that the statutory powers conferred on the police by sections 154 and 156 of the Code of Criminal Procedure to investigate a cognizable offence without a magistrate’s prior authority could not be overridden by the exercise of powers under section 439 of the Code of Criminal Procedure or by the inherent powers under section 561A. Consequently, the Supreme Court concluded that the High Court had erred in allowing the respondent’s application. The Court referred to the precedent set in King Emperor v. Khwaja Nazir Ahmad (1944) L.R. 71 I.A. 203. The judgment was delivered by Justice Kapur. The appeal arose from the judgment and order dated 6 September 1960 of the Calcutta High Court in Criminal Revision No. 647 of 1960. Counsel for the appellant were B. Sen, P. K. Chatterjee and P. K. Bose, while counsel for the respondent were D. C. Roy and P. K. Mukherjee. The appeal challenged the High Court’s order quashing the investigation into offences under section 420 of the Indian Penal Code and section 120B read with section 420 of the Indian Penal Code. The factual background noted that on 26 March 1960 Sub‑Inspector B. L. Gbose of the Enforcement Branch had filed a report, which led to the initiation of the investigation.

In the present matter, the Police Enforcement Branch submitted a written report to the Officer‑in‑charge of Chakdah Police Station, alleging that the respondent, together with three other individuals, had conspired to defraud the Government of West Bengal of an amount of Rs 20,000. At that time the respondent occupied the post of Assistant‑cum‑Executive Engineer in the Kancbrapara Development Area of the Kalyani Division. Relying upon the contents of that report, the police drew up a First Information Report and consequently commenced an investigation into the alleged offence. On 4 April 1960 the respondent appeared before the Judicial Magistrate at Ranaghat, formally surrendered, and was released on bail upon the payment of Rs 1,000. Subsequently, on 9 May 1960 the respondent filed a petition under sections 439 and 561A of the Criminal Procedure Code, seeking an order directing the District Magistrate of Nadia to show cause why the criminal case that was pending before the Senior Magistrate at Ranaghat, arising out of Chakdah Police Station Case No. 33 dated 26 March 1960, should not be set aside. The Calcutta High Court, after considering the petition, held that “in our view, the statutory power of investigation given to the police under Chapter XIV is not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act 1949, and that being so, the investigation concerned is without jurisdiction. In so saying, we are conscious of the observations of their Lord‑ships of the Privy Council in Nazir Ahmad’s case, 71 Indian Appeals 203.” Accordingly, the High Court quashed the police investigation on the ground that it lacked jurisdiction. The State of West Bengal appealed against that judgment and order, obtaining a certificate of appeal under Article 134(1)(c). At the time the respondent lodged the petition in the High Court, the only antecedent action by the police had been the written report made by the Sub‑Inspector of the Police Enforcement Branch, upon which the Officer‑in‑charge recorded the First Information Report and initiated investigative proceedings. No other criminal case was pending, except that the respondent had appeared before the court, surrendered, and been admitted to bail. The Court noted that the statutory authority to investigate cognizable offences is contained in Chapter XIV of the Code of Criminal Procedure. Section 154 of that chapter deals with the recording of information concerning cognizable offences, while section 156 authorises police investigation into such offences. Under these provisions, the police possess a statutory right to investigate the circumstances of any alleged cognizable offence without requiring any order from a magistrate, and this statutory investigative power cannot be displaced by the exercise of the power conferred by section 439 or by the inherent power of the court under section 561A of the Code. Regarding the relationship between the judiciary and the police in the context of the statutory right of police investigation, the Court quoted the Privy Council in King Emperor v. Kh·waja Nazir Ahmad, observing that “the functions of the judiciary and the police are complementary, not overlapping.”

It was observed that the balance between individual liberty and the proper maintenance of law and order could be achieved only by allowing each branch of government to perform its own function, while preserving the right of the court to intervene in a suitable case when a petition was filed under section 491 of the Criminal Procedure Code seeking directions of the habeas corpus type. In the present matter, the court’s role was held to commence only after a formal charge had been presented before it, and not before that stage. Some authorities had argued that the introduction of section 561A had created new powers for the court that were unavailable prior to its enactment. The court rejected that view, noting that the provision did not confer any fresh authority; rather, it merely confirmed that the powers already inherent in the court would continue to exist. The judgment cited the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad (1)(1944) L.R. 71, A. 203, 212, which explained that the insertion of section 561A was intended to assure that the court’s inherent powers were not taken to be limited only to those expressly granted by the Criminal Procedure Code, and included the observation that “lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act.” Applying this interpretation to the statutory duties and powers of both the police and the court, the court was in accord with the earlier analysis. Consequently, the court held that the High Court had erred in interfering with the police’s authority to investigate the offence alleged in the information served on the officer‑in‑charge of the police station. The appellate court therefore allowed the appeal, set aside the order of the High Court, and directed that the investigation proceed in accordance with law. The appeal was allowed.