S. N. SHARMA versus BIPEN KUMAR TIWARI AND ORS.

S. N. SHARMA

BIPEN KUMAR TIWARI AND ORS.

March 10, 1970

[S. M. SIKRI, V. BHARGAVA & C. A. VAIDIALINGAM, JJ.]

· Code 6f Criminal Procedure, (5 of 1898), s. 159-Maiutrote-if can hold tnquiry himself, and stop police investign1ion.

first information report was lodged in respect of crime and the appellant, who was the AJditional District Ma&istrate · (Judicial) was named therein as principal accused. The offences mentioned were coani· zable and the Police after re¥istering the case, started investigation. The appellant applied to the Judicial Magistrate for invocation of the provisions of s. 159 Cr.P.C., and for conducting preliminary enquiry by the Court itself and for issuance of nei;essary directions to the Police to stop investiaation alleging that false report had been lodged at the instance of the local police. The Magistrate directed the police to stop investip· lion and decided to hold the enquiry himself. Thereupon an application was moved in the High Court under s. 561 Cr.P.C. for quashing the order of the Magistrate as he had no jurisdiction to pass such an order under s. 159 Cr.P.C. The High Court accepted the application and set aside the Magistrate's order. Dismissing the appeal. this Court.

HELD : Section 159 Cr.P.C. does not empower Magistrate to stop investigation by the police.

This section first mentions the power of the Magistrate to direct an in· vestigation on receiving the report under s. 157, and then states the alter-native that, if he thinks fit, he may at once proceed, rJr depute any Magis-trate subordinate to him to proceed, to hold preliminary enquiry into, or otherwise to dispose of, the case. On the face of it, the first alternative of directing an investigation cannot arise in case where the report it:self shows that investigation by the police is going on in accordance with s. 156. It is to be noticed that the second alteroative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary enquiry. That power is preceded by the condition that he may do so, "if he thinks fit'. The use of this expression makes it clear that s. I 59. is primarily meant to give to the Magistrate the power of directinJ?: an investigation in cases where ,the police decides not to investie:ate the case under the proviso to s. 157 ( 1). and it is in tho·se cases that. it he thinks fit, he can choose the second alternative. Without the use of the exoression "if he thinks fit" the second aJte~nati\-e could have been held to be independent of the first; but the use of this cxpres·sion !rnakes plain that the oo,ver confelrred bv the second clause of this section is only an alternative to the power given by the first clause and can. therefor~. be e,,;ercised only in those cases in Whicfl the first clause is applicable. ·

Even in sub..s.(3) of section 156, the only po,~:er given to the Magi5-trate, who can take cognisance of an offence under section 190. is to order an 'investiJation~ there is no mention of any power to stop an investigation by the oolice. The scheme of the·se sections. thus, clearly is that the oower of the oolice to investi~ate any cognizable offence is un~ controlled by the Magistrate, and it is only in cases where the police

decide not to investigate the case that the Magistrate can intervene and either direct an investigation. or, in the alternative, himself proceed or depute Magistrate subordinate to him to proceed to enquire into the case. [949 G-950 F]

The Crown v. Mohammad Sadia Naiz. A.LR. 1949, Lah. 204, Pancham Singh v. The State. A.J.R. 1967 Pat. 416 and King Emperor V'. Khwaia Naziil Ahmad, 71 I.A. 203, refelrred to.

(2) The Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect cognizable offence has been committed. If the police engineer false report of cognizable offence a~ainst anv oerson he can in aoorooriate cases always invoke the power of the High Court under Art. 226. Therefore, the fact that the Code docs not provide for po~·er to Magistrate to stop investigation by the nolice cannot be ~round for holding that such powe" must be read into s. 159 of the Code. [951 Hl

CRIMINAL APPELLATI! JURISDICTION : Criminal Appeal No. 256 of 1969. '

Appeal by special leave from the jud~ment and order dated Janua.rv 15, 1969 of the Allahabad High Court in Criminal Misc. Case No. 1770 of 1968. . •

R. K. Garg, S. C. Aga1wal, D. P. Singh, V. J. Francis and

S. Chak~avarty, for the appellant.

0. P. Rana, for respondent No. 2.

The Judgment of the Court was delivered by

Bbargava, J. first inforrriation reiiort was lodged by one Vijay Shanker Nfgam in Police Station Cantonment, Gorakhpur, in respect of an incident alleged to have taken place ·at about 7 p.m. on 10th April, 1968 in fro~_ of his house. The report stated that one Bipen Kumar Tiwar1 had been attacked by certain goondas who also stabbed him with knife and further caused injuries ot Vijay Shankar Nigam also. One of the principal accused named in that report was S. N. Sharma, Additional Dis-trict Magistrate (Judicial), Gorakhpur, who is the appellant in this appeal. The allegation agains~ him was that it was at his instigation that the goondas had attacked Bipen Kumar Tiwari and attempted to murder him. The offences ·made out by the report lodged by Vijay Shankar Nigam were cognizable and the Police, after registering the case, started investigation. On the 13th April, 1968, the appellant moved an application before the Judicial Magistrate having jurisdiction to take cognizance of the offence, alleging that false report had been lodged against him at the connivance and instance of the local police. It was µrged that it would, therefore, _be desirable in the interest of justice that provisions of section 159 of the Code of Criminal Procedure be

invok~ and the preliminary enquiry J"Ilay be conducted by the Court itself .and ~ece~sary directions may be issued to the Police to s~op the mvest1gat10n. The Magistrate, after hearing both parties, passed an order directi~g the police to stop investigation and decided to hold the enquiry himself. Thereupon, on 2nd May, 1968, an application was moved in the High Court of Allahabad under section 561A, Cr. P.C., to quash the order passed by the Magistrate on 13th April, 1968, on the ground that he had no jurisdiction to pass such an order under s. 159, Cr. P.C. This application was allowed by the High Court by its judgmen~ dated 15th January, 1969, so that the High Court quashed the order of the Judicial Magistrate and held that the police of Gorakhpur was at liberty to conclude the investigation and submit its report to the Magistrate after which the case could proceed in accordance with law. The appeJ:ant has challenged this order of the High Court in. this appeal brought up by special leave.Section 156(1) of the Code of Criminal Procedure empowers an officer in charge of police-station to investigate. any cogniz-able case without the order of Magistrate. Sub-section (2) of s. 156 lays down that no proceeding of 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 no~ empowred under this section to investigate, while sub-s. (3) gives power to any Magis-trate empowered under section 190 of the Code to order such an investigation in any case as mentioned in sub-s. (!). Section 157 requires that, whenever such infonnation in received by an officer in charge of police-stalion that he has reason to suspect the commission of an offence which he is empowered to investigate under section 156, he must forthwith send report of it to the Magistrate empowered to tak~ cognizance of such an offence upon police report and, at the same t-ime, he must either proceed in person, or depute one of his subordinate officers to proceed, to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender. This provision is qualified by proviso which is in two parts. The first clause of the proviso enables an officer in charge of police station not to proceed to make an investigation on the spot or to depute subordinate officer for that purpose if the in-formation received is given against person by name and the case is not of serious nature. The second clause of the proviso per-mits the officer in charge of police station not to investigate the case if i~ appears to him that there is no sufficient ground for ,enter-ing on an investigation. The report to be sent to the Magistrate under sub-s. (1) of section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report

his reasons for not fully complying with the requirements of sub-section ( l) and, in addition. in cases wh~re he decided not to in-. vestigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to .be investigated. These provisions are followed by section 159 which is as follows :-B " 159. Such Magistrate. on receiving such report, may direct an investigation or, if he thinks fit, at once pro-ceed, or depute any Magistrate subordinate to him to proceed. to hold preliminary inquiry into, or oth~r­wi>e to dispose of, the case in manner provided in this Code." The High Court has held that, under s. 159, the only power, which the Magistrate ciln exercise on receiving report from the officer in charge of police station, is to make an order in those cases which arc covered by the proviso to sub-s. (1) of sec[ion 157, vi~ .. cases in which the officer in charge of the police station does not proceed to investigate the case. The High Court has 0 further held that this s. 159 does not empower Magistrate to stop investigation by the police in exercise of the power conferred on it by section 156. It is the correctness of this decision which has been challenged by the appellant, and the ground taken is that s. 159 should be interpreted as being wide enough to permit the Magistrate to proceed, or depute any Magistrate subordinate to him to proceed, to hold preliminary enquiry into, or other-E wise to dispose of, the case in the manner provided in this Code, even if the report from the police, submitted under section 157, states that the police is proceeding with the investigation of the offence. It was urged by counsel for the appellant that the nar-rower interpretation of s. 15'1 accepted by the High Court will leave persons at the mercy of the police who can harass any one by having false report lodged and starting investigation on the basis of such report without any control by the judiciary. He has particularly emphasised the case of the appellant who was himself Judicial Officer working as Additional District· Magistrate and who moved the Magistrate on the ground that the police had engineered the case against him. We. however, feel constrained to hold that the lang1rnge used in s. l 59 does not permit the wider interpretation put forward by counsel for the appellant. This section first mentions the power of the Magistrate to direct an investigation on receiving the report under s. l 57, and then states the alternative that, if he thinks fit, he may at once proceed, or depute any Magistrat~ subordinate to him to proceed, to hold preliminary enquiry into, or other-H wise to dispose of, the case. On the face of it, the first alternative of directing an inve>tigation cannot arise in case where the re-port itself shows that investigation by the police is going on in

accordance withs. 156. It is to be noticed that the second alter-native does not give the Magistrate an unqualified power to pro-ceed himself or depute any Magistrate to hold the preliminary enquiry. That power is prec.eded by the condition that he may do so, "if he thinks fit''. The use of this expression makes it clear thats. 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the police decide not to investigate the case under the proviso to s. 157(1), and ii is in those cases that, if he thinks fit, he can choose the second alter-native. If the expression "if he thinks fit" had not been used, it mighl have been argued that this section was intended to give in wide terms the power to the Magistrate to adopt any of the two courses of either directing an investigation, or of proceeding him-self. or deputing any Magistrate subordinate to him to proc.eed to hold preliminary enquiry as the circumstances of the case may require. Without the use of the expression "if he thinks fit", the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.It may also be further noticed that, even in sub-s. (3) of sec· tion 156, the only power given to the Magistrate, who can take cognizance of.an offence under section 190, is to order an investi· gation; there is no mention of any power to stop an investigation by. the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute Magistrate subordinate to him to proceed to enquire into the case. The power of the police to in· · vestigate has been made independent of any control by the Magis· trate. "

The High Court of Lahore in The Crown v. Mohammad Sadiq Niaz('), and the High Court of Patina in Pancham Singh v. The State([2 ]) interpreted section 159 to the same effect as held by us above. The reasons given were different. Both the Courts based their decisions primarily on the view expressed by the Privy Council in King-Emperor v. Khwaja Nazir Ahmad('). That case, however, was. not quite to the poipt that has come up for decision before us. 'IJ!e Privy Council vjas concerned with the question whether the High Court had power under section 561A of the' . (1) A.l.R. 1949 Lah. 204. (2) A.l.R. 1967 Patna418. (3) 71 I.A. 203.

Code of Criminal Procedure to quash proceedings being taken by the police in pursuance of first information reports made to the police. However, the Priv)' Council made some remarks which have been relied upon by the High Courts and are to the follow-ing effect :-

"In lndia, as has been shown, there is statutory right on the part .of the police to investigate the circum-stances 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 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 s. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus."

This interpreMion, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under sec!ion 561A, Cr. P.C., while we have to interpret section 159 of the Code which defines the powers of Magistrate which he can exercise on receiving report from the police of the cognizable offence under section 157 of the Code. In our opinion, section 159 was really int~nded to give limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence.Counsel appearing on behalf_ of the appellant urged that such an interpretation is likely to be very prejudicial particularly to Officers of the judiciary who have to deal with cases brought up by the police and frequently give decisions which the police dis-like. In such cases, the police may engineer false report of . cognizable offence against the Judicial Officer and may then harass hirri by cauying on prolonged investigation of the offence made · out by the report. It appears to us that, though the Code of Cri- · minal Procedure gives to the police unfettered power to investigate all cases where they suspect that cognizable offence has been committed in appropriate cases an aggrieved person can always seek rem~dy by invokil!g the power of .the High Court under Art.

226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by police officer mala fide, the ffigh Court can always issue writ of mandamus restraining the police officer from misusi.Dg his legal powers. The fact tha~ the Code does not contain any other provi-sion giving power to Magistrate to stop investigation by the police cannot be ground for holding that such power must be read in section 159 of the Code.

In the resuJt,.the decision of the High Court in this case must be upheld, so that the appeal fails and is dismissed.

Appeal dism·issed.