 Good evening, friends. Amongst us we have Justice Veeram Kumar and as usual we will be taking the session in an interactive form. And I will read the question and Justice Veeram Kumar will explain the same issues in a more explicit manner. As usual people love to understand from him and that's why on our request which we receive on WhatsApp as well as on the emails etc. We keep on requesting and he is always willing to see to that. The question is at about 11 a.m. on a Sunday while a lady aged 27 years was alone in her house, a person aged about 38 years and who claimed to be a friend of her husband, came asking for her husband. She told the person that her husband had gone to the market to purchase some vegetables and fish and would return in half an hour. She asked the visitor to be seated and said that she would make some tea in the meanwhile. While she was busy making the tea, the visitor stilledly came to the kitchen and clashed her from behind intending to outrage her honesty. With a loud protest she shook herself free and pushed the intruder who immediately left the house. She narrated her bitter experience to her husband who told her that although he knew the visitor, the latter was not his friend. He asked her to call the police and make a complaint. She called the officer in charge of the police station, SHO for short and narrated the entire incident amounting to an offense on a ship under section 354. The SHO asked her whether she had any physical or mental disability and she as well as her husband replied in a negative. Even though the SHO was convinced about the admission of the offense and he made a routine entry in the general dial, he read a book about the telephonic information, he asked her to go to the police station and gave a complaint. As the victim was disinclined to do so, she sent a letter by post to the district superintendent of police, DSP for short, narrating the whole incident and stating that the contact of the SHO amounted to refusal to record her information requested the DSP to investigate the case. On receipt of the letter, the DSP asked for an explanation from the SHO on the following lines. Why did not the SHO treat the telephonic information as one received under section 154 CRPC? Why did not the SHO treat the telephonic information as one received under section 154 CRPC? Why did instead of asking the victim to go to the police station and make a complaint, the SHO himself did not go to the police, go to the house of the victim and do the needful in view of the proviso to section 160 sub clause 1 CRPC? On the advice taken from the assistant public prosecutor APP for short, the SHO gave the following reply. Any information given on telephone to the police is not for the purpose of lodging an FIR, but to request the police to read the place of occurrence. By Paris, 113 and 14, of Sethart, which is at the rate Manu Sharma, was a state NCT of Delhi, 2010 volume 6 SCC-1, where a telephonic information is received from an unknown person, since the procedural formalities such as reducing the information into writing and reading it over to the informant and obtaining his or her signatures on the transcribed information etc. cannot be completed. The same cannot be treated as an FIR. By Paris, 33 to 37, Surajin Sarkar was a state of West Bengal, 2013 volume 2 SCC-146. It is only if the victim lady was mentally or physically disabled, but temporarily or permanently, should the SHO go to her presence and record the information as mandated by clause A of the second proviso to section 154-1 CRPC. Here he had ascertained from the victim that she had no such disability and she should have gone to the police station and lodged the first information report statement. FIR for short, the proviso to section 161 sub clause 1 CRPC exempting certain categories of symptoms from being required to attend the police station is applicable only during the course of investigation. Here since the FIR has not been registered, there could not be any investigation. The Supreme Court has ruled that registration of an FIR is a condition precedent for commencement of an investigation by the Paira-1 of Mahindrava State of Punjab, 2001, AIR SC-2113. At Paira-25 of Shashi Khan was a CPI, AIR 2000 SC-351. So my question to you is as follows. The question is, was the SHO justified in taking the legal opinion of the EPP? Yes. Now, of course, it's a big problem, but the problem can fully understood these four questions arise from that. Now, when the DSP asked for the escalation of the SHO as to why he did not treat the telephonic information as the FIR, then the SHO replied that he had taken the legal opinion of the EPP and as per the legal opinion, he was not bound to do that. So now we will try to answer the first question. Was the SHO justified in taking the legal opinion of the EPP? Now, the answer is no. The SHO was not justified in taking the legal advice from the EPP in the light of the verdict of the Supreme Court in R. Sarela v. Velu. AIR 2000 Supreme Court 1731 corresponding to 2000 volume 4 SCC 459. The judges are Justice Katie Thomas and DP Mohapatra Justice Thomas being the author of the judgment. Now, in the above decision, the apex court held that at no stage of a case should the investigating officer take the opinion of the assistant public prosecutor except his superior police officer and that the role of the public prosecutor is inside the court and not outside is the view taken by the apex court. But with due respect, I have my own reservations about that review because the only legally qualified person whom the police officer, whoever be the police officer, a police officer comes across during his functional sphere is the public prosecutor. Public prosecutor is the only legally qualified person whom a police officer comes across in this day to day routine. Now, it is true that public prosecutor's main role is during the trial of the case. But in my humble view, there is nothing wrong if the public prosecutor gives the necessary legal advice to the investigating police officer and even does the waiting of the draft charge sheet draft police report in order to avoid a rejection of the police report and even in order to avoid a rejection of the prosecution case itself. Otherwise, see, who will he consult? Can he consult a senior advocate of the Supreme Court without a who may not be inclined to give him a free legal advice? The only person who will give him a free legal advice and who is legally qualified is the prosecutor. So I don't find anything wrong in the prosecutor giving legal opinion to the police officer. It was the course of his investigation and even waiting, the approving the draft police report draft charge so that he can, the police officer can avoid a rejection of the police report by the court. It may be there may be some many defects in the police report. So in order to avoid a rejection of the police report, the draft charge can be wetted by the public prosecutor according to me. Now in Kerala state, there is one subterfuge adopted in the state of Kerala, the decision which we relied on, which we refer to is being circumvented by desegrating the person conducting the prosecution as the additional assistant legal advisor. Assistant legal advisor, he is not called the public prosecutor, he is called the assistant legal advisor so that he can give legal advice etc. But as per section 5-3 of the Prevention of Corruption Act, the person conducting the prosecution is called a public prosecutor, not assistant legal advisor. So in the practice in Kerala also I cannot agree because he is deemed to be public prosecutor under section 5-3 of the Prevention of Corruption Act. Therefore you cannot have a different label and get over Sarla v Velu. Of course Sarla v Velu may require reconsideration of my humble view. This is my take on this question.