Yet another instance of Conflicting Verdict

If a Judge is of opinion that the interpretation of a legal provision by another Judge in a reported verdict, is erroneous, then, in the absence of a binding precedent to the contrary either by a larger Bench or by a Superior Court, judicial discipline demands that he refers it to a Division Bench through the proper channel. Instead of adopting that course, if the second Judge considers himself to be intelligent enough to tread a different path, it is the system which suffers. That is precisely what happened in the case of Rule 26 of the Criminal Rules of Practice, 1982 (Kerala) which reads as follows:-

“26. Complaints against Police Officers not to be referred to the Police:- A complaint against a Police Officer shall not be referred to by a Magistrate under Section 202 of the Code to any person other than a Magistrate subordinate to him”.

2. In the first place, after the integration of the Magistracy in this State with effect from 01-01-1992 whereby the Courts of the Magistrates of the Second Class were abolished and there exist only the Courts of the Judicial Magistrates of First Class, besides the Courts of the Chief Judicial Magistrates. There is no Magistrate Subordinate to the Judicial Magistrate of the First Class in the State of Kerala from 01-01-1992 on words Hence, Rule 26 may have to be amended suitably.
3. That apart, interpreting the very same rule as it stands now, way back in the year 1998, Justice P.V. Narayanan Nambiar held that the principle behind Rule 26 is that Police Officers who conduct an inquiry will be very slow in finding fault with their colleagues or subordinates and the apprehension in the mind of the complainant that he will not get justice will still be there no matter whether the inquiry is conducted by the officer-in-charge of the Police Station or by a superior Police Officer. The views of the other High Courts in this behalf were also noticed by the learned Judge. (Vide Jessy Jacob v. State of Kerala – 1998 (2) KLT 554). No doubt, in that case the complaint was forwarded to the Police under Section 202 Cr.P.C. Taking cue from Jessy Jacob (supra) Justice K. Padmanabhan Nair held in Superintendent of Police, CBI v. State of Kerala – 2005 (3) KLT 823 that although at first blush Rule 26 would seem to apply only in cases where the Magistrate proceeds under Section 202 Cr.P.C., the principle thereunder is also applicable to a complaint forwarded to the Police under Section 156 (3) Cr.P.C. at the pre-cognizance stage. (See paragraphs 17 and 19 of the reported decision).
4. Now another learned Judge of the Kerala High Court in Balachandran v. State of Kerala – 2015 (4) KLT 907 has held that the interdict under Rule 26 is applicable only in the matter of investigation by the Police under Section 202 Cr.P.C. and is inapplicable to an investigation under Section 156 (3) Cr.P.C. The learned Judge has hastened to add that the reasons which weighed with him were not brought to the notice of the learned Judge who decided Superintendent of Police, CBI v. High Court of Kerala (supra). The learned Judge has observed as follows:

“The report filed after completing the investigation under S. 202 of the Code forms part and parcel of the proceedings under S. 202 of the Code. Therefore, the complainant will be having no option to exclude the materials collected during the course of investigation by the police under S. 202 of the Code. Therefore, there will be apprehension in the mind of the complainant that the investigation conducted by the Police will not result in collection of materials against a Police Officer correctly. On the other hand, in the case of an investigation under S. 156 (3) of the Code, the Police is having the power to file final report under S. 173 (2) of the Code. Even if a refer report is filed under S. 173 (2) of the Code, the remedies of the complainant to proceed further will not be exhausted. The complainant can file a protest complaint or to seek the assistance of the Court for further investigation under S. 173 (8) of the Code. In other words, even after filing the final report by the Police, the complainant is having options to get his grievance redressed through the Court of law. However, in the case of investigation under S. 202 of the Code, the remedies of the complainant will be foreclosed, as the materials collected during the course of investigation will form part of the enquiry under S. 202 of the Code. The Court is also not empowered to go back to the pre-cognizance stage, even if a report negating the case of the complainant is submitted by the Police Officer to save his colleague or subordinate, as S. 202 of the Code applies at post-cognizance stage. Therefore, even the powers of the Court will be restricted once a report is received under S. 202 of the Code, as the direction for investigation under Section 202 of the Code is for the purpose of determining “existence of sufficient ground to proceed”. That may be the reason why Rule Committee of the High Court decided to incorporate R. 26 in the Rules that a complaint against a Police officer shall not be referred to by a Magistrate under S. 202 of the Code to any person other than a Magistrate subordinate to him. The Rules Committee of the High Court was well aware of the two provisions empowering the Magistrate to forward the complaint to the Police for Investigation, which are Ss. 156 (3) and 202 (1) of the Code. Even then, the Rules Committee excluded S. 156 (3) of the Code from the purview of R. 26 of the Rules. The said exclusion seems to be not accidental or due to oversight, but was deliberate. Since the provisions of R. 26 exclude S. 156 (3) of the Code from the purview of R. 26, the powers conferred by the Statute on the Magistrate under S. 156 (3) of the Code cannot be taken away under the said Rule. It is true that the heading of R. 26 is a little confusing. However, the provisions of R. 26 are clear and unambiguous that the said provisions are applicable only to the investigation by the Police under S. 202 (1) of the Code. When the provisions are clear and unambiguous, no other interpretation is permissible. Therefore, if any restriction is imposed, in the absence of any provision in the rules, on the powers of the Magistrate under S. 156 (3) of the Code, that will tantamount to curtailing the powers conferred by the Statute without any sanction of law, which is impermissible. The above aspects were not brought to the notice of the learned Judge when Superintendent of Police, CBI v. State of Kerala (supra) was decided and consequently, the learned Judge had no occasion to go through the said aspects”.

( Emphasis supplied by the author )

5. In my humble view, the above reasons are hardly sufficient for taking a different view since there is no verdict either by a larger Bench or by a Superior Court taking a contrary view. The three-Judge Bench of the Apex Court in Ramdev Food Products Pvt.Ltd. v. State of Gujrat – AIR 2015 SC 1742, relied on by the learned Judge has not decided this issue regarding the desirability of forwarding to the Police under Section 156 (3) Cr.P.C. a complaint in which a police officer is an accused person. I fail to understand the role of any Rule Committee of the High Court deciding to incorporate Rule 26 in the Criminal Rules of Practice. The Rule Committee constituted under Section 122 Cr.P.C. is to recommend to the High Court to amend the Schedule to CPC. The said Rule Committee has no power to frame or amend the Criminal Rules of Practice. The said Committee is called the Rule Committee and not the “Rules Committee”. It is understood that there is a Rules Committee in the High Court in relation to the High Court Service Rules. But this author is not aware of any Rules Committee for recommending amendments to the Criminal Rules of Practice.
6. It is only a rule of prudence that in cases where a Police Officer is an accused, the matter is not ordinarily forwarded to the Police under Section 156 (3) Cr.P.C. at the pre-cognizance stage or under Section 202 Cr.P.C. at the post cognizance stage in view of the possible clannish or departmental bias. In such cases it would be better if the Magistrate takes cognizance and himself conducts an inquiry under Section 202 Cr.P.C. The Cr.P.C. does not prohibit the forwarding of such complaints to the Police for investigation either under Section 156 (3) Cr.P.C. or under Section 202 Cr. P.C. The interdict against forwarding such complaints to the Police is only in the aforesaid Rule occurring in the Criminal Rules of Practice framed by the High Court. Essentially much depends upon the apprehension of the complainant in case his complaint were to be forwarded to the police either under Section 156 (3) or under Section 202 (1) Cr.P.C. The Magistrate is the best Judge in that behalf. If one of the accused in the complaint is a police constable attached to some remote police station not within the jurisdiction of the Magistrate and the Magistrate considers that the officer-in-charge of the Police Station within whose territorial limits the alleged occurrence took place, will fairly conduct an impartial investigation and the complainant also does not entertain any apprehension in forwarding the complaint to the Police, nothing prevents the Magistrate from forwarding the complaint to the officer - in charge of the police Station. In fact, in Balachandran's Case (supra) the Magistrate had forwarded the complaint to the Station House Officer under Section 156 (3) Cr.P.C. and the latter had charge-sheeted the sole accused who was a police officer. It was the accused Police Officer who approached the High Court challenging the investigation by the SHO by placing reliance upon Rule 26. In my view the learned Judge rightly rejected his contentions. All that was necessary in that case was to say that Rule 26 was a provision for safeguarding the possible apprehension of the complainant and not the accused. But instead, the learned Judge strayed into unnecessary fields to hold that Superintendent of CBI v. State of Kerala did not take into consideration the aspects which were highlighted by the learned Judge. In that process, two conflicting views regarding the applicability of Rule 26 have come into existence resulting in confusion in the world of stare decisis.
7. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with this end in view i.e. to achieve consistency in judicial pronouncements that Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by Courts, then there will be chaos in the administration of justice. (Vide Govt. of A.P. v. A.P. Jaiswal -(2001) 1 SCC 748= AIR 2001 SC 499; Supreme Court Advocates Association v. Union of India – (1993) 4 SCC 441 = AIR 1994 SC 768; Indra Sawhney v. Union of India – 1992 Supp. (3) SCC 217= AIR 1993 SC 477; G.C. Gupta v. N.K.Pandey (1988) 1 SCC 316=AIR 1988 SC 654). No Bench of the High Court can comment on the functioning of a co-ordinate Bench of the same Court, much less, sit in judgment as an appellate Court over its decision. That which could not be done directly could also not be done indirectly. Otherwise, a party aggrieved by an order passed by one Bench of the High Court would be tempted to attempt to get the matter re-opened before another Bench and there would not be any end to such attempts. Besides, it may not be consistent with judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary. (Vikramajit Singh v. State of M.P. - 1992 Supp. (3) SCC 62 = AIR 1992 SC 474).
8. Any attempt to distinguish a previous judgment on the ground that there was no elaborate discussion and, therefore, no reasons are discernible, is clearly violative of judicial discipline. (Vide Special Deputy Collector (LA) v. N. Vasudeva Rao – AIR 2008 SC 944).

The resultant position is that we have one reported decision which says that the embargo under Rule 26 is applicable while forwarding a complaint for investigation both under Section 156 (3) Cr.P.C. as well as under Section 202 Cr.P.C. and another reported decision which says that the interdict under Rule 26 applies only while forwarding the complaint under Section 202 Cr.P.C. and it is not applicable while forwarding the complaint under Section 156 (3) Cr.P.C. Can the option to distinguish between the two interpretations and to adopt the appropriate decision be left to the legal practitioners and the Courts dealing with the matter ?