India: Calcutta High Court Holds That Police Officer Not Empowered To Call Accused By Notice In Investigations Under Section 202

In a petition filed by Ramesh Sobti (@Ramesh Sobyi) (hereinafter referred to as the Petitioner), challenging the notice issued to him to appear before the officer-in-charge in the matter of pending investigation in a criminal complaint filed by Respondent No. 2 (hereinafter referred to as the Complainant), the Calcutta High Court vide order dated June 23rd, 2017, held that police officer is not empowered to issue notice under Section 41A for investigation under Section 202 of the CrPC.

Brief Facts:

The Learned Magistrate after taking cognizance of offences in a complaint filed by the Complainant, alleging commission of offences punishable under Ss. 386, 406, 409, 420 and 120B of the IPC, vide order dated June 16, 2016 directed an investigation under Section 202 by the Officer-in-charge of Police Station, Park Street. Subsequently, the investigation was transferred to Shakespeare Sarani Police Station on the point of jurisdiction. During such investigation, the Police Officer-in-charge at the Shakespeare Sarani P.S., issued a notice dated January 30, 2017 under Section 41A of Cr.P.C to the Petitioner calling him to appear before him for the purpose of investigation.

Contentions by the Petitioner:

  • Distinguishing between investigations under Sections 156(3) and 202, it was argued that since the latter section does not provide power to arrest, and that power to issue notice under section 41A was surrogate to the power to arrest, the same could not be exercised by the Investigating Officer in this case.
  • That enquiry under Section 202 is conducted by Magistrate in absence of the accused, therefore the Police officer being a delegatee of the Magistrate, cannot compel the accused to appear for such investigation.
  • That such notice prior to issuance of process by the Court against the accused under Section 204 amounts to interference with the personal liberty and dignity of the Petitioner.

Submissions by the Respondents:

  • That incorrect reference of a provision of law does not preclude the officer from requesting the Petitioner to co-operate with the investigation under Section 202 and that the issuance of notice was to the advantage of the accused and he could not have been prejudiced by exercise of such power.
  • That the word 'investigation' defined under Section 2(h) was inclusive and meant in its ambit all incidental and ancillary powers which would aid the collection of evidence in the course.
  • That the notice issued to an accused in the course of investigation/enquiry by a Police Officer under Section 202, CrPC is to be considered as "investigation" under Section 2(h), CrPC and should not be quashed merely due to an incorrect reference to Section 41A of the Code.

Issue before the Court:

Whether a notice to a proposed accused in the course of investigation/enquiry by a police officer under Section 202 CrPC is valid or not?

Observations by the Court:

  • The Hon'ble Court observed that Section 41A was incorporated in the CrPC as an enabling power to interrogate an accused in respect of offences punishable with up to seven years of imprisonment, in the event that the Police Officer is of the opinion that arrest of the accused is not necessary in the facts of the case. Therefore, the power to issue notice under Section 41A of CrPC is subject to the pre-condition that the Police Officer had the power to arrest the accused under Section 41, but instead resorted to issuing notice of appearance under Section 41A. The Court relied on the judgment of the Apex Court in Ramdev Food Products Pvt. Ltd. vs. State of Gujarat [ (2015) 6 SCC 439] wherein it was held that the Police Officer investigating under Section 202 is a delegatee of the Magistrate and does not have power to arrest the accused.
  • Referring to the judgment of the Hon'ble Supreme Court of India in Chandra Deo Singh vs. Prokash Chandra Bose @ Chabi Bose & Anr. [ AIR 1963 SC 1430 ] and National Bank of Oman vs. Barakara Abdul Aziz & anr. [ (2013) 2 SCC 488 ], it was held that the enquiry under Section 202 is not similar to a full-fledged investigation under Chapter XII of the Code and is limited only to prima facie verify the truthfulness of the allegations in the complaint. Such enquiry is to be made in absentia of the accused, without any requirement to delve into the defence of the accused to determine whether sufficient grounds exist to proceed against him/her. Only after ascertaining that such grounds exist, can the Magistrate issue process for appearance of the accused in such an enquiry, or pose any question to the accused or his/her witness.
  • The Hon'ble Court observed that the Magistrate cannot permit the accused to participate and canvass his defence in the course of the pre-summoning enquiry and convert it to a 'mini trial' even before the commencement of the trial itself.
  • The Hon'ble Court stated that, a Police Officer conducting investigation under Section 202 is a delegatee of the Magistrate ordering so, and is therefore, circumscribed to the same limitations as imposed on the Magistrate. Since the Magistrate himself cannot call upon the accused pending the enquiry under Section 202, his delegatee cannot do so either. The Court further clarified that the Police although can proceed with other aspects of investigation and enquiry viz. examining the spot, interrogating the complainant and witnesses, carry on search and seizures to obtain evidence to determine the truth of the allegations, but cannot call upon the accused and interrogate him to elicit his version on the allegations.

The said judgment passed by the Hon'ble Calcutta High Court provides a clarity as to what exactly are the powers of Police Officer, with regards to Section 202, CrPC. This judgment shall ensure that no Police Officer is able to transgress the boundaries that have been created by the Criminal Procedure Code, and shall promote awareness amongst all citizens of the Country with regard to investigation under Section 202 of CrPC..

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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