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Criminal Revision No. 158 of 1948, decided on 6th July 1948 under section 439, Criminal Procedure Code, for revision of the order of Sessions Judge, Rawalpindi, dated the 9th April, 1948, affirming that of Additional District Magistrate, Rawalpindi, dated the 5th March, 1948, releasing the accused on bail and stopping the investigation of the case which was being conducted by the special staff: of the C. I. D. and further directing and authorising Magistrate first class, to hold an enquiry into the case.
(This case was referred to the above division bench by Mr. Justice Muhammad Khurshid Zaman, vide his order, dated the 7th June 1948).
, Ss. 156 (1), 157 (1), 159‑Power of Police to investigate a cognizable case‑Should receive no interference from judiciary Investigation by Police under S. 156, Criminal Procedure Code, could r, t be stopped by Magistrate.
In a case under sections 4 , 380, Indian Penal Code, under investi gation by the Police, the Additional District Magistrate ordered that in the circumstances it was best "to relieve the Special Staff of the C. I. D. from proceeding further with the investigation of the case."
Held, that the order was not legal and valid.
Further, that in the exercise of their powers to investigate a cog nizable case the Police should receive no interference from the judiciary and that this would lead to the inevitable consequence that the investi gation by the Police under section 156, Criminal Procedure Code, could not be stopped.
The word "direct" which means "command" could only signify that something which was not being done, should be done and in section 159 the word "direct" would connote that the Police are not engaged in the investigation and the Magistrate orders them to do so. The word "direct" therefore, would be meaningless in relation to an investigation by the Police which is already in progress. The Police them selves are doing a thing and no direction from the Court to do that which is already being done would be necessary or called for. It would, there fore, cover only those cases where the investigation is not done by the Police and the Court directs them to investigate.
I L R 1945 Lah. 1, P. C. followed and I L R 14 Lah. 194 referred to.
Obiter : Nevertheless in an investigation by the Police of a cogniz able case the Magistrate is not a mere disinterested spectator and has over it some real and effective control.
Obiter : There does not appear to be any valid reason why action by the Magistrate under section 159, Criminal Procedure Code should be confined to a case mentioned in proviso (b) of section 157, Criminal Procedure Code, i.e., where the Police has declined to my estigate, and why the Magistrate should not have the power to order the Police Officer to conduct investigation at the spot in a case reported under proviso (a). In both these cases the Police are not doing what the Magistrate requires them to do.
Shabir Ahmad, Advocate‑General for Petitioner.
Dr. Tasadduque Hussain for Respondent.
The facts of the case giving rise to this petition may be briefly stated. One Muhammad Sadiq Niaz was accused of offences under sections 420 and 380, Indian Penal Code. On the 4th March, 1948, the accused was remanded to the Police custody for one week by the Additional District Magistrate, Rawalpindi. On the same day an application for bail was made on behalf of the accused. As no one was present on behalf of the prosecution, the hearing of the appli cation was adjourned to the next day. On the 5th March, 1948, two more applications were made on behalf of the accused in which serious allegations were made against the special staff of the C. I. D. It was alleged that the accused was being tortured and that he had been removed to some unknown destination with a view to extort a confession from him. The learned Additional District Magistrate passed a com posite order on these applications. He released the accused on bail and stopped the investigation of the case which was being conducted by the special staff of the C. I. D. He further directed and authorised Pir Salah‑ud‑Din, Magistrate, First Class, to hold an enquiry into the case. This order was made under section 159, Criminal Procedure Code.
Against this order the Crown filed a revision petition in the Court of the Sessions Judge, Rawalpindi, challenging the validity of the order restraining the Police investigation and ordering a magisterial enquiry. The main ground on which this petition was based was that the learned Additional District Magistrate had no jurisdiction to pass this order under section 159, Criminal Procedure Code. The learned Sessions judge, however, did not agree with this contention and dismissed the revision petition. The Crown has now come up in revision to this Court.
The learned Advocate‑General, who appeared on behalf of the Crown, contended
(1) that no Magistrate is competent to stop Police investigation under section 159, Criminal Procedure Code ;
(2) that, at any rate, this particular Magistrate had no jurisdiction to pass this order ; and
(3) even if he was empowered to make this order, this was not a case in which he should have interfered with the investigation which had already been undertaken by the special staff of the C. I. D.
The learned Advocate‑General argued that section 159 must be read with sections 156 and 157 of the Criminal Procedure Code, because all these three sections deal with the same subject, namely, the investi gation of cognizable offences by the Police. Section 156 reads as hereunder :‑
(1) "Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the pro visions of Chapter XV relating to the place of inquiry or trial.
(2) No proceedings of a Police Officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered, under this section, to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above‑mentioned."
Section 157 lays down the procedure where commission of a cogniz able offence is suspected. When an officer in charge of a police station has reason to suspect the commission of an offence which he is empowe red under section 156 to investigate, lie is required to do two things under subsection (1) of section 157 :‑(1) He shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence (2) Either he shall proceed in person or shall depute one of his sub ordinates to proceed to the spot to investigate the facts and circumstances of the case.
There are two provisos to this subsection which provide as follows:‑
(a) When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer‑in‑charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot.
(b) If it appears to an officer in charge of the police station that there is no sufficient ground for entering on investigation, he shall not investigate the case.
Then follows subsection (2) of section 157, which enacts as follows:‑
In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1), the officer in charge of the police station shall 'state in his said report his reasons for not fully complying with the requirements of that subsection, and in the case mentioned in clause (b) such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Local Govern ment, the fact that he will not investigate the case or cause it to be investigated.
Section 159 enacts as follows :‑
Such Magistrate, on receiving such report, may direct an investiga tion or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case in manner provided in this Code.
It will thus be seen that the officer‑in‑charge of a police station may enter on investigation of any cognizable offence without any direc tion from a Magistrate. Proviso (b) of subsection (1) of section 157 authorises him not to undertake investigation in certain cases. If he decides not to investigate a cognizable offence, he is required to state his reasons for not fully complying with the provisions of subsection (1) of section 157 in his report which he is required to submit to the Magistrate. It is perfectly obvious that the words "such report" in section 159 refer to the report which the officer‑in‑charge of a police station is under a statutory duty to submit to the Magistrate under section 157. If the report discloses that investigation is already undertaken by him, obviously no occasion for directing an investigation arises. It is, therefore, clear that the power conferred by section 159 to direct an investigation or hold a magisterial enquiry is only to be exercised by the Magistrate when the officer in charge of the police station has decided not to enter upon investigation under clause (b) of the proviso to subsection (1) of section 157 and his report states the reasons for not fully complying with the provisions of section 157.
The learned counsel for the respondent, however, argues that even in cases where an officer in charge of the police station has entered on investigation, the Magistrate acting under section 159, Criminal Pro cedure Code, has the power to stop investigation and order a magisterial enquiry. The learned counsel, however, concedes, that section 159 does not expressly confer upon the Magistrate the power to restrain police investigation, but he argues that it does so by necessary implication. I am unable to agree with this contention, firstly, because the police has statutory rights to investigate under section 156 without requiring any authority from any Magistrate and if the intention of the Legislature was to empower the Magistrate to interfer with the investigation of a cognizable offence by the police, one would expect it to have expressed its intention positively and clearly, the more so, in view of the provisions of section 156 which confer on the police the right to investigate cognisable offences in the most general terms ; and secondly, because to give a full effect to the provisions of section 159, it is not necessary to imply the power to stop police investigation. Obviously the intention of the Legislature was to provide a remedy against arbitrary and improper refusal on the part of the officer in charge of a police station to proceed with the investigation of a cognizable offence. Therefore, in my opinion, section 159 does not take away the power of the police to proceed with the investigation of a cognizable offence, but on the other hand, it supplements the provisions of section 157, Criminal Procedure Code, and empowers a Magistrate to direct investigation where the police has failed in its statutory duty under section 156.
I am further of opinion that the Magistrate acting under section 159 can order a magisterial enquiry only in such cases where he can direct the investigation of a cognizable offence. In other words, a Magistrate cannot order a magisterial enquiry where the police has already under taken the investigation of a cognizable offence. This is made clear by the use of the words "or if he thinks fit" in section 159. These words give the Magistrate an option, in cases where the police has not undertaken the investigation of a cognizable offence, either to direct investigation or order a magisterial enquiry. It, therefore, follows that in cases where he cannot order investigation because the investigation is already undertaken by the police, he cannot order a magisterial enquiry.
As a result of the above discussion I am of the opinion that section 159, Criminal Procedure Code, does not empower a Magistrate to restrain police investigation and order magisterial enquiry, where investigation of a cognizable offence by the police is already proceeding and that sections 156 and 157 limit the scope of section 159, I am fortified in this view by certain observations of their Lordships of the Privy Council in King Emperor v. KAwaja Nazir Ahmad (I L R (1945) Lah. 1). In that case one of the questions to be decided was whether the statutory right of the police to investigate cognizable offences could be interfered with by an exercise of the inherent jurisdiction of the Court. Although the question of the applicability and interpretation of section 159 was not before their Lordships, the view expressed by their Lordships regarding the statutory right of the police to investigate cognizable offences in relation to powers of Court are of great assistance in deciding this case. Their Lordships observed "In their Lordships' opinion, however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to ‑a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry.
In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cog nizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortu nate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not over‑lapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own functions, always of course subject to the right of the Court to intervene in an appropriate case when moved under section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus."
Similarly in Rashid Ahmad v. The Crown (I L R 14 Lah. 194) it was laid down
"No power is given to Magistrate to restrain the police in their investigation, but the Magistrate is given power to obtain their assistance in having investigation made either under section 156 (3) or section 202. It is difficult to see how it can be imputed to the Legislature that by conferring the latter power it meant by impli cation to limit the general power of the police already given by the Code."
No doubt, the question to be decided in that case was whether the powers of the police to investigate under section 156, Criminal Procedure Code, are affected when an order to investigate under section 202, Criminal Procedure Code, is made, nevertheless the observations of their Lordships, which are reproduced above, have a general bearing on the question raised in this case.
Next it is urged by the learned Advocate‑General that the learned Additional District Magistrate was not competent to act under section 159, Criminal Procedure Code, in the present case, as no report contemplated by section 157 had been submitted to him. I am not impressed by this argument. If the Magistrate was otherwise competent to pass the order in question, the mere fact that the officer in charge of the police station omitted to send a formal report would not, in my opinion, deprive him of the powers which he possessed under section 159. The police had applied for a remand order, and I think such applications usually contain some information regarding the offence alleged to have been committed by the accused. I am of the view that the submission of such an appli cation for remand would be sufficient compliance with the requirements of section 159. There is no statutory authority for the proposition that the words "such report" in section 159 mean the first information report although I am aware that in one or two reported cases this view is taken.
Lastly, the learned Advocate‑General contended that even if the order of the learned Additional District Magistrate was valid, it was not warranted by the circumstances of the present case. I may say at once that if the order is otherwise valid, I would not interfere with it merely on the ground that two opinions can be held as to its propriety.
The real question is whether the order passed by the learned Addi tional District Magistrate stopping the investigation by the police and ordering a magisterial enquiry could be validly made under section 1.59, Criminal Procedure Code. I have expressed my views on the question, but in view of the importance of the question and the fact that there is no direct authority on the point raised, I feel that the matter should be considered by a larger Bench. The papers may be laid before the Hon'ble the Acting Chief Justice for orders.
This petition for revision involves interpre tation of section 159 of the Criminal Procedure Code and has arisen under the following circumstances.
A case under sections 420 and 380 Indian Penal Code was registered at the Police Station, Muree, against one Muhammad Sadiq Niaz to whom Lintott's Cafe Muree had been allotted. The Police arrested Muhammad Sadiq Niaz and produced him before the Additional District Magistrate, Rawalpindi, on 4th March 1948 and asked for a week's remand. It was granted. In the afternoon an application for bail supported by a medical certificate was presented to the Court. The learned Additional Magis trate issued notice to prosecutor, directed the accused to be taken to the civil hospital presumably for examination and fixed the hearing of the application to the following day. No one for the prosecution appeared on that day nor had the accused been taken to the hospital as directed. Another application was made and it contained serious allegations of torture against C. I. D. Special Staff. It was sent to the Prosecuting Inspector with the order to produce Muhammad Sadiq Niaz before the Court. It was not complied with and all efforts to find out the where abouts of the accused or to contact the Special Staff C. I. D. proved futile. The learned Additional District Magistrate by order, dated 5th March 1948, allowed interim bail in the sum of Rs. 1,000, with one surety and directed the production of the accused in Court on 12th March 1948. The C. I. D. Special Staff was also ordered to be relieved of the investi gation of the case under section 159, Criminal Procedure Code, and the enquiry was entrusted to Pir Salah‑ud‑Din, Magistrate, 1st class.
The legality of this order was challenged before the learned Sessions Judge, Rawalpindi. He agreed with the Additional District Magistrate and held that the order was quite valid. The Crown came up in revision to this Court. It was heard in the first instance by a learned judge in Chambers who was of the view that the action of the Magistrate in stopping investigation by police was illegal but in view of the importance of the question raised and its far reaching consequences he considered it desirable that it be heard and decided by a larger Bench.
The narrative of the events given above would easily show that the police were out to flout the authority of the Court and if the Magistrate had power to withdraw the investigation from the hands of the police it was properly exercised. It was, however, contended by the learned Advocate‑General that the law confers no such powers and the police had a statutory right to investigate a cognizable case. The "misconduct" of the police if any could not deprive them of their powers to investigate though it might be otherwise suitably punished or checked. Reference was made to various sections of the Criminal Procedure Code particularly sections 156, 157 and 159 and reliance was placed upon the observations contained in I L R 14 Lah. 194 and I L R 1945 Lah. 1 (P C).
"Offences" are classified in the Code as "cognizable" and "non‑cogni zable". In the former a police officer may in accordance with the second schedule or under any law for the time being in force, arrest without a warrant. In the latter, a police officer has no power to investigate without a specific order from a Magistrate. The machinery of law in a "cogniz able case" may be set in motion either by a complaint direct to the Court under section 200, Criminal Procedure Code, or by a report to the Police under section 154. Where information relating to the commission of a "cognizable offence" is given orally to an officer in charge of a police station, it shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. Under section 156 an officer incharge of a police station may without the order of a Magistrate investigate any "cognizable case" which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try. His subsequent conduct shall be regulated by section 157. It reads as follows :‑
"157 (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Provincial Government may, by general or special order, prescribe in this behalf to proceed to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender Provided as follows :‑
(a) When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot
(b) If it appears to the officer in charge of police station that there is no sufficient ground for entering on an investigation he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to subsection (1) the officer in charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that subsection, and, in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Provincial Government the fact that he will not investigate the case or cause it to be investigated."
On a careful perusal of section 157 it would transpire that three kinds of. reports are required to be submitted by the officer in charge of a police station to a Magistrate empowered to take cognizance of such offence upon a police report. One is to be sent under subsection (1) of section 157 which is simply a sort of intimation to a Magistrate that a cognizable offence is suspected to have been committed and that he himself is taking up the investigation or has deputed one of his subordinate officers to do so. The second concerns the action taken under proviso (a) that as the offender was known and the case was not of a serious nature no necessity for personal investigation on the spot was felt and the third one is made under proviso (b) that there was considered no sufficient reason for entering upon the investigation at all. On the receipt of these reports the Magistrate could act under section 159 which is as follows :‑
Such Magistrate on receiving such report may direct an investigation or if he thinks fit, at once proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into or otherwise dispose of the case in manner provided in this Code.
The position of the defence is that in any of the three cases mentioned above it was open to the Magistrate to‑
(a) direct an investigation; or
(b) proceed himself to hold a preliminary enquiry; or
(c) depute any subordinate Magistrate to hold the preliminary enquiry; or
(d) otherwise dispose of the case in manner provided in this Code.
This interpretation is stoutly resisted by the learned counsel for the Crown. The word "direct" which means "command" could only signify that something which was not being done, should be done and in section 159 the word "direct" would connote that the police are not engaged in the investigation and the Magistrate ordered them to do so. The word "direct" therefore, would be meaningless in relation to an investigation by the police which is already in progress. The police themselves are doing a thing and no direction from the Court to do that which is already being done would be necessary or called for. It would, therefore, cover only those cases where the investigation is not done by the police and, the Court directs them to investigate.
The learned Advocate‑General would confine the action by the Magistrate to a case mentioned in‑proviso (b) of section 157 above, i.e., where the police has declined to investigate There does not appear to be any valid reason why the Magistrate should not have the power to order the police officer to conduct investigation at the spot in a case reported under proviso (b). In both these cases the police are not doing what the Magistrate requires them to do. The real controversy, however, exists as to the case falling under subsection (1) of section 157 where the police has taken up the investigation of a "cognizable case" in right earnest. Could the Magistrate direct the police to stop the investigation and substitute a magisterial enquiry by himself or by his subordinate
In King Emperor v. Khwaja Nazir Ahmad reported as (I L R 1945 Lah. 1 P C) the powers and functions of the police and the judiciary were somewhat explained. It was observed:‑‑
"In their Lordships' opinion, however, the serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have a free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry.
In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.
In an earlier case of this Court published in I L R 14 Lah. 194 it was held that where the police were required by the Magistrate to investigate "a cognizable case" of which a complaint had been made to the Court direct, there was nothing to limit "the general powers of the police already given by the Code."
The observations of their Lordships of the Privy Council leave no room for doubt that in the exercise of their powers to investigate "a cognizable case" the police should receive no interference from the judiciary. This would lead to the inevitable consequence that the investigation by the police under section 156, Criminal Procedure Code, could not be stopped.
It was stressed by the defence that there was nothing in the Code to prohibit the Magistrate from holding his own enquiry into a case investigated by the police. The learned counsel for the Crown maintained that the Magistrate had the option to hold his enquiry in those cases only where he had a right and the authority to "direct an investigation" by the police. The matter is not so easy and simple as the prosecution seems to think. It is problematical whether the alternatives to "direct an investigation" contained in section 159, Criminal Procedure Code, are no more than the different modes in which the direction to investigate might be exercised. Ordinarily where a person has the authority to order another to do a thing, he is not debarred from doing it himself and it is a moot point whether the Legislature was using words unnecessarily or intended to meet cases other than those in which "investigation" could be directed to be made. These pertinent questions do not arise in this revision and I would express no opinion regarding them. Suffice is to say that even in an investigation by the police of "a cognizable case" the Magistrate is not a mere disinterested spectator and has over it some real and effective control, the nature and extent of which I am not called upon to determine.
In view of the conclusion reached above I would accept this revision petition and hold that the order of the learned Additional District Magis trate, Rawalpindi, dated 5th March 1948, that in the circumstances it was best to relieve the Special Staff of the C. I. D. from proceeding further with the investigation of this case" was not legal and valid and is hereby set aside.
‑I agree.
A.H.
Revision accepted.
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