COURT LAYS THE LAW

COURT LAYS THE LAW <!--[if gte mso 10]> COURT LAYS THE LAW By Professor Masood Ahmed Abbasi, Advocate In English system of `administration of justice' the Superior Courts are designed to read, discuss, consider, interpret and eventually lay the law on all intricate and ticklish pieces of legislation brought before them for adjudication, for the benefit of the society at large and the guidance of the litigant-public and subordinate judiciary in particular. One of such classical judgments delivered by our Supreme Court, resolving the century-old judicial controversy on the interpretation of section 154 read with section 173 of Chapter XIV of Criminal Procedure Code titled `information to the police and their powers to investigate' comes to mind, under citation PLD 1985 SC 62. What is the remedy available to the informer/complainant whose F.I.R. under section 154, Cr.P.C. after due investigation, is found false by the Police in their final report disposed of B' class and accordingly cancelled with due sanction and approval of the Magistrate under section 173, Cr.P.C.? Whether the approval so given by the Magistrate is a judicial order amenable to revision by the High Court under sections 435 to 439, Cr.P.C., or an administrative order having attained finality for the purposes of judicial scrutiny and sub-sequential remedy? Different and contradictory judicial views were expressed by different High Courts of British India, as well as Bharat and Pakistan., and no final authoritative guidance on this most crucial and intricate question of law of far-reaching consequences, enjoying the sanction of Article 189 of the Constitution of Pakistan, was available to litigant-public and the subordinate Judiciary for over a long period of time, till our Supreme Court resolved the controversy with highest amount of sagacity, legal acumen, even balance of judicial wisdom and reason. Delivering the leading judgment in that case, Mr. Justice Shafiur Rahman having since earned the reputation of striking a judicial balance of highest perfection in every legal controversy brought before him, observed:-‑ "The specific question of law to examine which leave to appeal has been granted is not free from controversy. It would appear that in a number of cases the list whereof, which is by no means exhaustive but only illustrative, follows, it was held that cancellation of a case and discharge of an accused on a report under section 173, Cr.P.C. is a judicial act of the Court. There is also the other view that a Magistrate, while cancelling a case, on a report of the police under section 173, Cr.P.C. is not acting as Court nor such an order is revisable:-‑ (a) In support of the view that in discharging the accused on a report under section 173, Cr.P.C. and in cancelling the registered criminal case the Magistrate acts as a Court and his order is revisable under section 439, Cr.P.C. the following decisions are referable:-‑ (i) Amir Ali v. The State and others PLD 1968 Lah.537. (ii) State v. Vipra Khimji Gangaram 1952 Cr.LJ 1084. (iii) E. Pedda Subba Reddy v. State and another AIR 1969 AP 281. Narayan Ramchanra Karambelkar v. The State 1972 Cr.LJ 1440 (F.B.). (v) Krishna v. State 1966 Cr.LJ 650. (b) In support of the view that in discharging the accused and cancelling a registered criminal case, on a report under section 173, Cr.P.C., a Magistrate does not act as Court, that his order is administrative and not revisable under section 439, Cr.P.C., the following decisions are referable:-‑ (i) Wazir v. The State PLD 1962 Lah. 405 (F.B.). (ii) Emperor v. Hayat Fateh Din AIR 1948 Lah. 184 Fl (F.B.). (iii) Mst. Fatima Bibi v. Rana Lal Hassan 1970 PCr.LJ 178. (iv) Muhammad Ishaq Khan v. Abdul Hamis Khan PLD 1958 Azad J&K 42. (v) Brahm Dev v. Emperor AIR 1938 Lah.469. (vi) Dharamdas Hiranand v. Emperor AIR 1938 Sindh 213. (vii) Uma Singh v. Emperor AIR 1933 Pat. 242. (viii) Ramsarup v. State AIR 1951 Raj. 146. Amongst the cases referred to above by the Supreme Court it is pertinent to make mention of two Lahore High Court judgments (i) PLD 1962 Lah. 405 (F.B.) in which leading judgment was delivered by one of the most celebrated Judges of Pakistan Judiciary Mr. Justice C.J. Kayani, and it was held that the order of cancellation of F.I.R. under section 173, Cr.P.C. is an administrative order and therefore not amenable to revision under section 439, Cr.P.C. by higher Courts. In the other case (ii) PLD 1968 Lah. 537 it was held that:-‑ "There is no doubt in my mind that such an order is a judicial order and is open to review by this Court. The law at the same time provides a remedy to the petitioner to file a complaint under section 190 of the Criminal Procedure Code if he so likes. I agree with Mirza Ghulam Mujaddid, learned counsel appearing on behalf of the respondents, that the order passed by the Magistrate should not be interfered in revision when a remedy is open to the petitioner by way of complaint." In both the cases, however, it was decided, though based on different reasons, that the High Courts must not interfere in their Revisional Jurisdictions under section 439, Cr.P.C., against the orders passed by the Magistrates under section 173, Cr.P.C. cancelling the F.I.R. and discharging the accused named therein. Faced with such a conflicting judicial view of the matter for over a very long period of about a century, the Supreme Court of Pakistan put the controversy at rest by deciding once and for all that the order so made by the Magistrate on the basis of approving the Police Final Report cancelling the F.I.R. is an administrative order and Final for the purposes of judicial scrutiny, as it is open to the complainant/informer, if aggrieved or dissatisfied by such disposal of his F.I.R. to take the same F.I.R. direct to the same Magistrate for adjudication, in the following words:-‑ "Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly a duty common to the exercise of all State power, there is no 'lis' before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and a Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a Criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C. This appeal, is therefore, allowed and the impugned order of the High Court is set aside, as one without jurisdiction." The basic purpose of legislating criminal laws in any society is to prevent `crime' and punish the `offender'. In that spirit complete liberty is provided to every person to report every cognizable crime to the Police in Chapter XIV of Cr.P.C. After the supply of such information relating, to the commission of a cognizable offence by any member of the public, who has gained knowledge in any manner, the further pursuit of the matter by the Police becomes an activity and responsibility of the State. To secure the due `process of law' from abuse by unscrupulous persons, the Legislature has enacted a complete Chapter X covering sections 172 to 190 in the Pakistan Penal Code providing for punishment of `contempt of the lawful authority of the public servants'. The law relating to cancellation of F.I.R. by the Final Report of the Police under section 173, Cr.P.C., having thus been finally laid by the Supreme Court in the aforesaid case, floods of light can now be thrown on the reading and understanding of section 182, P.P.C. which punishes for `False information with intent to cause public servant to use his lawful power to the injury of another person'. Section 182, P.P.C. has been drafted with caution followed by illustrations to make the intention of the Legislature abundantly clear. The essential ingredients of the offence punishable under this section are (i) that the information must be given to a `public servant' as defined in section 21 of P.P.C. In the instant case Police is the public servant to whom information is given under section 154, Cr.P.C., (ii) secondly the information so given must be false within the knowledge and belief of the informer, (iii) thirdly a person who lays an information before the Police is entitled to have his case determined by the Court before he is called upon to answer the charge of laying a false information. This aspect has now been finally settled by the Supreme Court in their judgment cited above, (iv) fourthly the intention of giving such false information must be to wrongfully put the State machinery into operation either causing the public servant to do what he must not do or not to do what he must do if the true state of facts respecting which such information is given were known to him or otherwise the intention of the informer be to use the lawful power/authority of such public servant to the injury or annoyance of any other person. Any one of these two elements is sufficient to constitute the offence. Thus, where a false charge is made by a person against another person, he is liable to punishment even if his object in doing so may be to protect himself rather than to injure that other person. After the pronouncement of the Supreme Court judgment cited above, it becomes per se clear that once the informer/complainant, in spite of his F.I.R. under section 154, Cr.P.C. having been found false and accordingly cancelled by the Police Final Report under section 173, Cr.P.C. with the sanction and approval of the Magistrate; is not aggrieved and does not exercise his right of filing the same complaint before the same Magistrate for adjudication to prove truth of the information, the falsity attached to his F.I.R. becomes final and the informer/complainant becomes liable to prosecution and punishment under section 182, P.P.C. The necessary corollary to the effect of the Supreme Court Judgment is that the prosecution in such a case does not have to prove the falsity of the F.I.R. afresh in proceedings under section 182, P.P.C., but confine its duty to establish the aforesaid three out of four ingredients only, that is, (i) that the F.I.R. was made by the accused himself to the Police (ii) that the information given was false within the knowledge and belief of the accused, (iii) (a) that the information was given with the intention of invoking the jurisdiction of the Police so as to make the Police do what it must not have done or omit to do what it must have done, had the true facts of the case respecting which such information is given were known to it; or in the alternative (b) to use the lawful power of the police to cause injury or annoyance of any other person. In other words the Courts, either at the stage of trial, or appeal or revision under section 182, P.P.C. shall not be called upon or required to give a verdict on the `falsity' of the F.I.R. which already stood established under section 173, Cr.P.C. ***