M.P. Thakkar, J.
1. A citizen who was arrested by a police officer has approached this Court by way of the present petition and has made very serious allegations against the concerned police officer. A notice pending admission was issued and the officer concerned was directed to produce the petitioner in person before the Court. The learned Public Prosecutor was asked in what proceeding and under what provision the petitioner had been arrested. The learned Public Prosecutor after taking instructions from respondent No. 1, the P.S.I., who has made the arrest, stated that a private complaint had been lodged against the petitioner in the Court of the Metropolitan Magistrate, 3rd Court and that the Magistrate concerned had directed the police officer to make investigation in respect of the complaint under Sub-section (1) of Section 202 of the Code of Criminal Procedure of 1973 (Code).
2. The question that has surfaced in the back drop of the aforesaid facts and circumstances is: when upon receipt of a complaint of an offence a Magistrate instead of issuing process postpones the issue of process against the accused and direct? a police officer to make an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding, can the police officer in charge of the investigation on his own, place the accused under arrest? Section 202(1) in so far as material reads as under:
202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:xx xx xx xx
The language of Section 202 clearly shows that (1) a Magistrate may direct a police officer to make an investigation when he decides to postpone the issue of the process and (2) the investigation may be directed for the purpose of deciding whether or not there is sufficient ground for proceeding. On a plain reading of the provision it is, therefore, clear that a police officer may be directed to investigate only when a decision to postpone the process is taken by the learned Magistrate. The process would eventually be issued on the receipt of the report of the investigating officer if the learned Magistrate reaches the conclusion that there is sufficient ground for proceeding. In that event the learned Magistrate would have to decide whether or not to issue a process, and if so, whether a summons should be issued or a warrant should be issued. This whole purpose of ordering the investigation is to satisfy himself whether there is sufficient ground for proceeding in the matter. After the receipt of the record if the Magistrate forms the opinion that there are sufficient grounds for proceeding, then only the question of issue of a process and the nature of the process to be issued can arise. Till then such a question cannot arise. The decision to issue a process and the decision to issue either a summons or a warrant is a decision which is in the offing. Section 202 envisions that the question of process will be decided by the learned Magistrate and that the decision will be taken after the receipt of the report of the investigating officer. Till then, therefore, there is no question of arresting an accused person. Such a question cannot arise at all. If the police officer were to place the accused under arrest, he would be forestalling and foreclosing the decision of the learned Magistrate which for obvious reasons he cannot have the legal authority to do. For aught we know, the learned Magistrate on the receipt of the report of the Magistrate may come to the conclusion that there is no sufficient ground for proceeding in the matter and may decide not to issue any process. The police officer cannot, therefore, pre-empt the decision of the learned Magistrate and place the accused under arrest on his own. If the police officer were to place the accused under arrest and upon his report being received the Magistrate were to reach the conclusion that there was no sufficient ground for proceeding, a very incongruous and embarrassing position would arise. By necessary implication in an investigation undertaken at the direction of a Magistrate under Section 202, a police officer would have no power to arrest on his own. The prima facie opinion as to whether or not an offence has been committed and whether or not there are sufficient grounds to proceed against the accused in that connection is to be formed by the Magistrate and not by the police officer. The police officer has merely to gather the material and place it before the learned Magistrate. It is the function of the Magistrate thereafter to apply his mind and to reach the conclusion as to whether there are sufficient grounds and whether or not it is a case for issuance of a process. The powers of the Magistrate can neither be preempted by the police officer, nor can the police officer usurp unto himself the function entrusted by the statute to the learned Magistrate to form an opinion on these questions. It is, therefore, abundantly clear that a police officer directed to make an investigation under Section 202 cannot place an accused person under arrest. In the present case it is an admitted position that the learned Magistrate had postponed the issuance of a process and had directed an investigation at either the material in order to enable the learned Magistrate to satisfy himself whether or not there was sufficient ground for proceeding. The police officer could not have, therefore, lawfully placed the accused under arrest. The learned Public Prosecutor however faintly argued that the power to investigate would include the power to arrest. The expression 'investigation' has been defined by Section 2(h) of the Code as under:
2(h) 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
It is, therefore, clear that for the purposes of Section 202 the power to investigate cannot include anything but the power to collect evidence under the authority of the Magistrate. It cannot include the power to arrest. To read the power to arrest therein would be to introduce an anachronism for then there can be no question of the Magistrate applying his mind to the material gathered by the police officer and to decide whether or not there was sufficient ground for proceeding and whether it was necessary to issue a process, and if so, what type of process. The learned Public Prosecutor also sought support from the provision made in Sub-section (3) of Section 202 which provides that if an investigation is made by a person not being a police officer, he shall have all the powers conferred by the Code on the officer in-charge of the police station except the power to arrest without warrant. This provision has been made out of abundant caution in order to ensure that the powers of arrest are not exercised by a person who is not a police officer. It does not mean that by implication power has been conferred on the police officer to arrest without warrant. Having regard to the definition of 'investigation' and having regard to the scheme of Section 202 it would be introducing a fatal contradiction in the perspective of Section 202 to interpret it in the manner suggested by the learned Public Prosecutor. There is, therefore, no room for doubt that a police officer does not have any power to arrest without warrant any person in the course of an investigation directed by a Magistrate under Section 202 (1) of the Code. It is a shocking thing that the police officer concerned has exercised these powers without giving a thought to the question as to whether under the law he had any such power in this matter. It is also deplorable that the learned Magistrate in whose Court the complaint was filed himself ordered a remand to police custody without applying his mind to the aspect as to whether the arrest itself was authorised or not. He had ordered the investigation and he had not issued any warrant of arrest. It should have immediately struck him that in the course of an investigation ordered by him even before the report was presented to him, the police officer could not have placed the accused under arrest. Whether to issue a process or not was a decision required to be made by the Magistrate and not by the police officer. The learned Magistrate allowed this vital decision to be taken by the police officer and in a way ratified it by directing that the petitioner be handed over to police custody by way of remand. In view of these facts which have emerged at the hearing this is a fit case for directing the respondents to set the petitioner at liberty forthwith inasmuch as he has been placed under arrest and kept in detention without any authority of law. It is in these circumstances that even by way of an interim order at this stage such an order is required to be passed. It is hoped that the police officers as also Magistrates will be careful in such matters involving the liberty of the citizens.
3. The learned Counsel for the petitioner has stressed the aspect that the police officer has conducted himself in this manner in a proceeding initiated by a rich businessman who complains of having been defrauded to the extent of Rs. 42,000/- and that there is something sinister in the mater. On the basis of the material on record it would not be appropriate for this court to make any pronouncement on this aspect at the present juncture. The respondents are directed to set the petitioner at liberty forthwith. He is in Court and the respondents are directed to allow him to go wherever he likes without any restraint.