MUMBAI, May 14: The legal and constitutional status of the police in a democratic society governed by the rule of law is a somewhat perplexing question.

Criminals with political clout and governments depending on them for support and survival would want investigating agencies to be subordinate to them and subject to their interference and direction. The honest citizen, irked by political corruption, would want the police to be both independent and honest.

The courts too face this serious dilemma. The Supreme Court has been at pains to free the principal investigating agency in India from political control and to ensure its autonomy. At the same time it has to tread warily and with circumspection in controlling police investigations.

A distinguished British Judge, McCardie J, in the Oldham Corporation case of 1930 provided an interesting illustration which 25 years later was fully approved by the Privy Council in a case from Australia.

``Suppose'', he said, ``that a police officer arrested a man for a serious felony. Suppose too, that the watch committee of the borough at once passed a resolution directing that the felon should be released. Of what value would such a resolution be? Not only would it be the plain duty of the police officer to disregard the resolution, but it would also be the duty of the chief constable to consider whether an information should not at once be laid against the members of the watch committee for a conspiracy to obstruct the course of criminal justice.''

The watch committee referred to in this illustration was the authority then competent to appoint as well as dismiss a police officer. The value of this vivid illustration is that it indicates how inappropriate it would be to describe the relation of a police officer and his appointing authority as a relation of master and servant. A CBI officer in India enjoys precisely the same autonomy and independence as the English constable in McCardie's illustration. In the matter of recording information of a cognizable offence, investigating the offence, arresting and bringing offenders to book, filing a charge-sheet against the guilty and letting go the innocent, he performs statutory duties under the fourteenth Chapter of the Code of Criminal Procedure. While he is taking any action in obedience to the Statute, an order not to take that action is one which has no weight or validity even if it proceeds from the President, Prime Minister or Minister. On the other hand, the order of the executive Government to do the duty imposed by the Statute gives no added force to the command of the Statute. It only serves as a reminder.

Privy Council in the Australian case of 1955 affirmed this position in respect of a police officer operating under a Statute which made the Commissioner of Police subject to the directions of the Minister because these directions bound the police only in matters not controlled by statutory duty.

The eminent Lord Reid in the House of Lords, while referring to the police in England, described their position as `peculiar'. They are not servants of the Crown and they do not take orders from the Government. A similar statement of Lord Denning in the Blackburn case, however, is much more widely known:- ``... every constable ... is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.''

The statutory duties and powers of the police end with the filing of the charge-sheet. Thereafter it is a matter between the Court and the accused. The role of the police is only that of witnesses in the case and to address arguments to the Court through a properly appointed Public Prosecutor. The Public Prosecutor is himself a quasi-judicial officer who, unlike Police Prosecutors of the past, is not an employee of the police. He too is a servant of the State, takes no instructions from the Government and assists the court.

In all criminal matters in legal theory the State is a party. The State alone is aggrieved by a wrongful acquittal or quashing of charges. A reflection of this principle is to be found in Section 378 of the Code of Criminal Procedure which provides that when an acquittal has been recorded in a case investigated by the CBI, the Central Government may direct the Public Prosecutor to present an appeal. Filing of appeals is not one of the statutory duties of the investigating agency or the CBI. That decision has to be taken by the State.

An aggrieved officer cannot take on the duties and powers of the State and file an appeal on his own. It has been so held again by the Supreme Court itself. Where a prosecution had been instituted by the Collector of Customs and being aggrieved by the inadequacy of the sentence imposed on the accused, he presented an appeal to the High Court, the Supreme Court held that the appeal was incompetently filed. The Customs Collector could not appeal. Only the State could through its proper Law Officer.

Appeals under Article 136 of the Constitution stand on a somewhat different footing. The Supreme Court has granted leave to private citizens who are aggrieved by wrong convictions or acquittals as the case may be. The position of a citizen vis-a-vis the criminal law is that subject to exceptions, any citizen can set the criminal law in motion. It follows that a citizen has an interest in the enforcement of the criminal law up to the highest stage of an appeal to the Supreme Court. Public officers, however, must act within the parameters of their office. A public officer cannot jettison his role and take on the mantle of a private citizen. This will create endless confusion and would be destructive of the superintendence vested in the Government by Section 4 cited above.

In a given case, if the power under Section 4 is misused by the State, the exercise of that power itself is subject to judicial review on the familiar principles of administrative law. No mala fide exercise of power is exempt from scrutiny or immune from writs of certiorari and mandamus. The Supreme Court can always by exercise of its powers preserve police autonomy as well as police discipline. As far as I can see no change in the law is called for.

Copyright © 1997 Indian Express Newspapers (Bombay) Ltd.