Orissa High Court Quashes Police Circular Order Conferring ‘Power Of Investigation’ On Graduate Constables & CI Havildars

“…this Court by no stretch of imagination could presume that the legislatures while enacting Sections 156 and 157 of the Cr.P.C. were not aware of the meaning of the word “Officer”. Furthermore, while providing that the cases are to be investigated by the Officer-in-Charge of the Police Station, it has also been provided that in course of investigation the OIC / IIC cannot send a person to the spot for investigation who is below the rank of an Officer as has been prescribed by the State Government in this behalf.”

Factual Background

The petitioners are police constables under different Police Stations in the State of Odisha. The State Government, through a Resolution, directed the respondent authorities to confer the power of investigation on Graduate Constables (GCs) and Crime Intelligence Havildars (CIHs).

It was also stipulated that such GCs and CIHs would be provided institutional training in recognized institutions for 30 days, which will be followed by a practical training in Police Stations for further period of 45 days and thereafter an examination would be conducted on successful completion of the training.

After passing such examination, they were proposed to be conferred with power of investigation on ad hoc basis. The aforesaid Resolution, however, clarified that they shall not be entitled to any additional financial/service benefit on account of such delegation of power of investigation. The above stipulations were further modified by a subsequent PCO which is challenged herein in these writ petitions.

Contentions of Parties

The PCO was assailed by the petitioners on three major grounds. Firstly, the PCO has been issued without concurrence of the State Government. Secondly, the willingness of the candidates which was there earlier has been obliterated under the new PCO. Lastly, although the GCs and CIHs would be required to do investigation work, they will not be given any additional financial/service benefit.

It was further submitted that without designating the petitioners and all the similarly situated GCs and CIHs as ‘subordinate officers’, the Government could not have conferred power of investigation on them that too without any financial and service benefit.

But it was argued on behalf of the State that many of the Constables employed are Graduate Constables who possess computer skills and thus, the Government took a decision to engage them in investigating cases involving petty offences and thereby, to reduce the work burden of the Investigating officers.

Therefore, the Government exercised power under Section 157, CrPC to issue Resolution prescribing that petty offences, which are punishable up to three years may be investigated by GCs and CIHs. Further, in order to have proper control and supervision over the investigation, the OIC, IIC of the concerned Police Stations are authorized to supervise the investigation conducted by such personnel.

Court’s Analysis

The Court made reference to Section 2(o) of the CrPC which defines the words ‘officer-in-charge of a Police Station’ to include, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station- house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.

“A close scrutiny of the aforesaid provision in Cr.P.C. makes it abundantly clear that any officer above the rank of constable can act as an officer-in-charge of a Police Station when the regular officer-in-charge is absent from the station house. Therefore, the post of constable can never be equated with the post of officer of whatsoever designation. In such view of the matter, this Court has no hesitation to come to a conclusion that either the Graduate Constables or Crime Investigation Havildars can never be equated with an officer in the police department,” the Court held.

The Court also clarified that to carry out the duties provided under Sections 156 and 157, CrPC, the Graduate Constables and CI Havildars are first required to be designated as ‘officers’, either by promoting them to the existing post of officers or by creating new posts of junior officer in the cadre.

“Further, it is needless to mention that such promotion to the post of officer or any other designation from the post of G.Cs. and C.I. Havildars would also accompany with it and enhancement in their remuneration either by fixing a higher scale of pay or by providing them some allowance/increment. This is more so, once such employees are upgraded from G.Cs. and C.I. Havildar to the rank of officers, they will be required to perform duties with enhanced responsibility,” the Court added.

Accordingly, the impugned PCO was quashed.

Case Title: Minaketan Nayak & Ors. v. State of Odisha & Ors.

Case No.: W.P.(C) No. 14873 of 2022

Counsel for the Petitioners: Mr. B. Routray, Sr. Adv., S.K. Samal, S.D. Routray, J. Biswal, M. Panda, A.K. Das and M. Padhi, Advocates

Counsel for the Respondents: Mr. P.K. Rout, Addl. Government Advocate

Citation: 2023 LiveLaw (Ori) 36