Full Judgment Text
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PETITIONER:
S.N. SHARMA
Vs.
RESPONDENT:
BIPEN KUMAR TIWARI AND ORS.
DATE OF JUDGMENT:
10/03/1970
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M.
VAIDYIALINGAM, C.A.
CITATION:
1970 AIR 786 1970 SCR (3) 946
1970 SCC (3) 653
CITATOR INFO :
F 1980 SC 326 (27)
R 1982 SC 949 (17,54,58,64)
R 1985 SC 195 (22)
D 1988 SC 805 (13)
RF 1991 SC1260 (42)
R 1992 SC 604 (36,59,93)
ACT:
Code of Criminal Procedure, (5 of 1898), s. 159-Magistrate
if can hold enquiry himself, and stop police investigation.
HEADNOTE:
A first information report was lodged in respect of a crime
and the appellant, who was the Additional District
Magistrate (Judicial) was named therein as principal
accused. The offences mentioned were cognizable and the
Police after registering 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 necessary directions to the Police to stop
investigation alleging that a false report had been lodged
at the instance of the local police. The Magistrate
directed the police to stop investigation and decided to
hold the enquiry himself. Thereupon an application was
moved in the High Court under s. 561 A 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 a Magistrate to
stop investigation by the police.
This section first mentions the power of the Magistrate to
direct an investigation on receiving the report under s.
157, and then states the alternative that, if he thinks fit,
he may -it once proceed, of depute any Magistrate
subordinate to him to proceed, to hold a preliminary enquiry
into, or otherwiseto dispose of, the case. On the face of
it, the first alternative of directing an investigation
cannotarise in a case where the report itself shows that
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investigation by the police is going on in accordance with
s. 156. It is to be noticed that the second alternative
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. 159 is primarily meant to give to the
Magistrate the power of directing an investigation in cases
where the police decides not to investigate the case under
the proviso to s. 157(1), and it is in those cases that. if
he thinks fit, he can choose the second alternative.
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 makes it plain
that the power conferred by the_ second clause of this
section is only ,in alternative to the Power given by the
first clause and Fan, therefore. he exercised only in those,
cases in which the first clause is applicable.
Even in sub-s.(3) of section 156, the only power given to
the Magistrate, who can take cognisance of an offence under
section 190, is to order an investigation, there is no
mention of any power to stop an investigation by the police.
The scheme of these sections, thus, clearly is that the
Dower of the Police to investigate any cognizable offence is
uncontrolled by the Magistrate, and it is only in cases
where the police
947
decide not, to investigate the case that the Magistrate can
intervene and either direct an investigation, or, in the
alternative, himself proceed or depute a Magistrate
subordinate to him to proceed to enquire into the case. [949
G-950 F]
The Crown v. Mohammad Sadia Naiz, A.I.R. 1949, Lah. 204,
Pancham Singh v. The State, A.I.R. 1967 Pat. 416 and King
Emperor v. Khwaja Nazir Ahmad, 71 I.A. 203, referred to.
(2)The Code of Criminal Procedure gives to the police
unfettered power to investigate all cases where they suspect
a cognizable offence has been committed. If the police
engineer a false report of a cognizable offence against any
person he can in appropriate cases always invoke the Power
of the High Court under Act. 226. Therefore, the fact that
the Code does not provide for.a power to a Magistrate to
stop investigation by the Police cannot be a ground for
holding that -such a power must be read into s. 159 of the
Code. [951 H]
JUDGMENT:
CRIMINAL APPELLATE- JURISDICTION: Criminal Appeal No.256 of
1969.
Appeal by special leave from the judgment and order dated
January 15, 1969 of the Allahabad High Court in Criminal
Misc. Case No. 1770 of 1968.
R. K. Garg, S. C. Agarwal, D. P. Singh, V. J. Francis and
S. Chakravarty, for the appellant.
O. P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Bhargava J A first information report was lodged by one
Vijay Shanker Nigam 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 front of his house. The
report stated that one Bipen Kumar Tiwari had been attacked
by certain goondas who also stabbed him with a knife and
further caused injuries ot Vijay Shankar Nigam also. One of
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the principal accused named in that report was S. N. Sharma,
Additional District Magistrate (Judicial), Gorakhpur, who is
the appellant in this appeal. The allegation -against 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 a false report bad been lodged
against him at the connivance and instance of the local
police. It was urged that it would, therefore, be desirable
in the interest of justice that provisions of section 159 of
the Code of Criminal Procedure be
948
invoked and the preliminary enquiry may be conducted by the
Court itself and necessary directions may be issued to the
Police to stop the investigation. The Magistrate, after
hearing both parties, passed an order directing 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 judgment 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 appellant 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 a police-station to investigate any
cognizable case without the order of a Magistrate. Sub-
section (2) of S. 156 lays down that no-proceeding 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,
while sub-s. (3) gives power to any Magistrate empowered
under section 190 of the Code to order such an investigation
in any case as mentioned in sub-s. (1). Section 157
requires that, whenever such information in received by an
officer in charge of a police-station that he has reason to
suspect the commission of an offence which he is empowered
to investigate under section 156, he must forthwith send a
report of it to the Magistrate empowered to take cognizance
of such an offence upon a police report and, at the same
time, 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 a proviso which is
in two parts. The first clause of the proviso enables an
officer in charge of a police station not to proceed to make
an investigation on the spot or to depute a subordinate
officer for that purpose if the information received is
given against a person by name and the case is not of a
serious nature. The second clause. of the proviso permits
the officer in charge of a police station not to investigate
the case if it appears to him that there is no sufficient
ground for entering on an investigation. The report to be
sent to the Magistrate under sub-s. (1) of section 157
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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
949
his reasons for not fully complying with the requirements of
subsection (1) and, in addition, in cases where he decided
not to investigate 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
"159. 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 inquiry into, or otherwise
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 can exercise on receiving a report from
the officer in charge of a police station, is to make an
order in those cases which are covered by the proviso to
sub-s. (1) of section 157, viz., cases in which the officer
in charge of the police station does not proceed to
investigate the case. The High Court has furl,-:her held
that this s. 159 does not empower a 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
a preliminary enquiry into, or otherwise 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
narrower interpretation of s. 159 accepted by the High Court
will leave persons at the mercy of the police who can harass
any one by having a false report lodged and starting
investigation on the basis of such a report without any
control by the judiciary. He has particularly emphasised
the case of the appellant who was himself a 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 language used
in s. 159 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. 157, and then
states the alternative that, if he thinks fit, he may 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. On the face of it, the first
alternative of directing an investigation cannot arise in a
case where the report itself shows that investigation by the
police is going on in
950
accordance with S. 156.- It is to be noticed that the second
alternative 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. 159 is primarily
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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 it
is in those cases that, if he thinks fit, he can choose the
second alternative. If the expression "if he thinks fit"
had not been used, it might 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 himself or
deputing any Magistrate subordinate to him to proceed to
hold a 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
section 156, the only power given to the Magistrate, who can
take cognizance of an offence under section 190, is to order
an investigation; 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 a Magistrate
subordinate to him to proceed to enquire into the case. The
power of the police to investigate has been made independent
of any control by the Magistrate.
The High Court of Lahore in The Crown v. Mohammad Sadiq
Niaz(1), and the High Court of Patna in Pancham Singh v. The
State(1) 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 (3) Council in King-Emperor v. Khwaja Nazir
Ahmad . That case, however, was not quite to the point that
has come up for decision before us. The Privy Council was
concerned with the question whether the High Court had power
under section 561A of the
(1) A.I.R. 1949 Lah. 204.
(3) 71 I.A. 203.
(2) A.I. R. 1967 Patna 418.
95 1
Code of Criminal Procedure to quash proceedings being taken
by the police in pursuance of first information reports made
to the police. However, the Privy Council made some remarks
which have been relied upon by the High Courts and are to
the following effect :-
"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
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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 interpretation, to some extent, supports the view that
the scheme of the Criminal Procedure Code is that the power
of the police to investigate a 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 .sect-ion 561A, Cr. P.C.,
while we have to interpret section 159 of the Code which
defines the powers of, a Magistrate which he can exercise on
receiving a report from the police of the cognizable offence
under section 157 of the Code. In our opinion, section 159
was really intended to give a 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 dislike. In such cases, the
police may engineer a false, report of a cognizable offence
against the Judicial Officer and may then harass him by
carrying on a prolonged investigation of the offence made
out by the report. It appears to us that, though the Code
of Criminal Procedure gives to the police unfettered power
to investigate all case’s where they suspect that a
cognizable offence has been committed, in appropriate cases
an aggrieved person can always seek a remedy by invoking the
power of the High Court under Art.
9 5 2
226 of the Constitution under which, if the High Court could
be convinced that the power of investigation has been
exercised by a police officer mala fide, the High Court can
always issue a writ of mandamus restraining the police
officer from misusing his legal powers. The fact that the
Code does not contain any other provision giving power to a
Magistrate to stop investigation by the police cannot be a
ground for holding that such a power must be read in section
159 of the Code.
In theresult, the decision of the High Court in this
case must be upheld,so that the appeal fails and is
dismissed.
Y.P. Appeal
dismissed.
9 5 3