P L D 1971 Supreme Court 677 (PLP)

It may be pertinent at this stage to mention that curiously enough the learned Judge himself never examined the investigation papers-nothing is said in the impugned orders to indicate that this was done-in order to satisfy himself one way or the other as to the correctness of the press reports regarding the conduct of the investigation. The conscience of the Court was evidently satisfied from the verbal reports of the Advocate-General, that the investigation had since changed hands, further investigation was being made and cases had been registered against the appellant, who had been taken into custody. It was in these circumstances that the appellant came to this Court on the 20th November 1970, for leave to appeal against the above orders, not only on the ground that they had been made without any jurisdiction whatsoever but also on the ground that they constituted a wholly unwarranted interference with the due course of investigation being conducted by competent investi gating agencies and that they had caused her serious prejudice, because they were made without giving her any show-cause notice or any opportunity of presenting her side of the picture. The gravamen of her complaint is that but for these proceedings she would not have been charged either under section 302, P. P. C. or for the violation of any Martial Law Regulation. Learned counsel appearing on her behalf maintains that but for such unwarranted interference by the High Court and the wholly uncalled for observations made in the impugned orders she would not have been refused bail both by the District Magistrate and the District and Sessions Judge of Karachi. Indeed it is bitterly complained that the impugned orders have seriously prejudiced her and if they are not set aside the observations contained therein will continue to prejudice her and she will have no chance of a fair trial at Karachi or in any Court subordinate to that High Court because they would inevitably be influenced by them. Having read the various orders of the High Court, we cannot help feeling that even if the learned Judge had jurisdiction to take the action he in fact took, the observations were wholly unnecessary and should not have been made for they were patently likely to prejudice not only the appellant but also the investigating officers against whose conduct, according to the information supplied by the learned Advocate-General, on the 12th November 1970, the Inspector-General of Police, Sind had already ordered an enquiry. The learned Judge himself realized this and tried to nullify the effect of his observations by pointing out that nothing said by him should be construed as adversely affecting anyone. If that was so then it would have been better not to have made such unnecessary observations against the interests of a person who was neither joined as a party to these proceedings nor given any opportunity of even pointing out the undesirability of making such observations. Be that as it may, the main question with which we are now concerned and for the examination of which leave was granted is as to whether the learned Judge had any jurisdiction at all to take such suo motu action. We propose now to examine this question. Learned counsel appearing on behalf of the appellant has contended that the action sought to be taken by the High Court was according to its own proclaimed intention for the following objects:- (i) To examine if the conduct of the investigation had been fair and impartial; (ii) Whether the ends of justice required that further investigation of the case should be entrusted to any other Officer or Court of Law; and (iii) To examine whether any officer who had taken part in the conduct of the investigation, at any stage, had been guilty of any act of commission or omission. Neither of these, according to him, was within the jurisdiction of the High Court either under the Constitution or the Criminal Procedure Code or the Letters Patent or even otherwise. The High Court, it is said, has no jurisdiction to supervise or interfere with the investigation conducted by Officers competently authorised by the Code of Criminal Procedure in that behalf nor has the High Court any powers to transfer an investigation from Officers so competently authorised to any other officer or Court nor can it claim any right to hold any suo motu enquiry into the conduct of officials discharging statutory or executive functions. Learned counsel also complains that the order is biased and has been made in total disregard of the principles of natural justice, for, it has clearly resulted in serious prejudice to the appellant. The learned Advocate-General for the Province of Punjab, who has appeared at our request to assist us in the examination of this important question relating to the jurisdiction of all High Courts, has with his usual candidness, supported the learned counsel for the appellant. He too is of the opinion that the High Courts have no jurisdiction either under the Constitution or the Letters Patents or the Criminal Procedure Code to interfere in this manner with the conduct of an investigation already taken in hand by competent agencies under the law. The learned Advocate-General for the Province of Sind also concedes that there is no such power under the Constitution of 1962, as kept in force by the Provisional Constitution Order of the 4th April 1969, but he contends that the High Courts have the power to transfer an investigation from one Officer to another under the provisions of clause 22 of the present Letters Patents of the High Courts of West Pakistan and Clause 29 of the Letters Patent of the Calcutta High Court which apply to East Pakistan as also under the provisions of section 561-A of the Code of Criminal Procedure. The other allegations of the appellant are also denied and it is maintained that whatever was done by the High Court was done in the interests of justice. There was no question of any bias against anyone nor was it necessary at that stage to issue any notice to the appellant. So far as the observations are concerned, the High Court itself had in its final order pointed out that nothing said by it should be treated as the expression of any firm opinion about the merits of the case or be utilized to the prejudice of any party or any other person con cerned in this matter. We will assume for our present purposes that whatever was done by the High Court was done with the best of intention and in order to advance the cause of justice and that no expression of any firm opinion has been made by the High Court in any of the impugned orders and will examine the question as to whether the impugned' orders were competently made in exercise of the lawful powers of the High Court purely in its jurisdictional aspect. So far as the Constitution of 1962 is concerned the powers of the High Courts are such as have been described under the provisions of Article 98 of the Constitution. They are those which have been conferred on them by the Constitution itself or by any law and apart from them they have no other powers, because, Article 130 of the same Constitution provided that "no Court shall have any jurisdiction that is not conferred on ft by this Constitution or by or under the law." Under this Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances but even in such a case the High Court cannot A move suo rnotu for, it is specifically provided in each of the sub clauses (a), (b) and (c) of clause (2) of Article 98 that only "on the application of an aggrieved party or of any person," the High Court may make the orders or issue the directions therein specified. It is clear, therefore, that under Article 98, there is no scope for any suo motu action by the High Court. The High Court has also no power of supervision or control over investi gating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of "all other Courts that are. subordinate to it." This position, as already, pointed out, is not also disputed by the learned Advocate- General for the Province of Sind. The question, therefore, that next arises for consideration is as to whether this jurisdiction can be culled from the provisions of clause 22 of the Letters Patents of the High Courts of West Pakistan. The Letters Patent of the High Court of West Pakistan now applies to all the three High Courts of this region. The Clause reads as follows:- "

22. And we do further ordain that the High Court of Judicature at Lahore shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction, of some other officer or Court." It will be observed that under this clause two distinct kinds of powers have been given to the High Court, viz.:-- (i) To direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior juris diction, and (ii) To direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case belongs in ordinary course to the jurisdiction of some other officer or Court. The first power is not attracted in the present case. But the question is whether the second power gives the jurisdiction which the High Court has purported to exercise. Learned counsel for the appellant and the Advocate-General for the Province of Panjab have both maintained that the second part of clause 22 of the Letters Patent does not give the power to transfer but it only empowers the High Court to direct a preliminary investiga tion of a criminal case by an officer competent to make such investigation if such investigation has not yet been started or taken in hand. It does not give the power to the High Court to direct the transfer of an investigation which has already been initiated by a competent Officer. Emphasis is laid on the fact that the word `transfer' has been used only in the first part of the Clause but deliberately omitted in the second part. The distinction in the phraseology of the two parts of this clause is thus not without significance. If it was the intention that the second clause should also contain within it the power of transfer then the first clause was wholly unnecessary, for, under the second clause itself a trial of a criminal case could also be transferred. The learned Advocate-General for the Province of Sind has, on the other hand, relied on the words "though such case belongs in the ordinary course to the jurisdiction of some other officer or Court", occurring in the second part, for drawing the inference that since these words connote that a preliminary investigation can also be directed to be done by some officer other than the one who in the ordinary course would have had the jurisdiction to make such investigation, the power of transfer is necessarily implied therein. This argument is not, in our opinion, tenable for the inference suggested does not necessarily flow from these words. They merely mean that the High Court under the latter part of the provisions of clause 22 of the Letters Patent has the power to direct the preliminary investigation to ba started where no such investigation has already been initiated by even an officer B who in the ordinary course would not have had territorial jurisdic tion to make such an investigation although he must still be an officer who is competent to make an investigation under the Criminal Procedure Code of an offence of that nature. This clause which is identical in language with clause 29 of the Letters Patent of the Calcutta High Court came up for consideration before that High Court in the case of Shzshadnar Acharjya v. Sir Charles Tegart (A I R 1932 Cal. 229) and was interpreted by Chief Justice Rankin (as he then was) as follows:- "Is one under which if a criminal case or appeal is proceeding or is about to be begun in the mofussil, the High Court has power to remove it and to direct any other Court of sufficient jurisdiction to hear the criminal case or appeal and in that connexion there is an ancillary power that this applies not only to a criminal case or appeal, but applies also to inquiries. The High Court has power to direct a preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it though such a case belongs in the ordinary course to the jurisdiction of some other officer." This interpretation does not assist the learned Advocate- General for the Province of Sind, for, it seems to take the view that the Clause gives also an ancillary power to transfer an "inquiry" along with the power of transference of a criminal case or appeal which is proceedings or is about to begin in the naofussil Courts. There is nothing in these observations to indicate that Chief Justice Rankin intended to imply thereby that "inquiry" includes a "preliminary investigation" or that the High Court has also the power to direct the transfer of an investigation from one Officer to another under the provisions of the Letters Patent. The second part of the clause is. merely reproduced without any further comment because it was not at all attracted in the facts of that casa which dealt with an application for clothing the Advocate of the petitioner before that High Court with the powers of the Advocate-General, with a view to prosecut ing a criminal complaint against the Commissioner of Police, Sir Charles Tegart. To the same effect are the observations of a Division Bench of the Lahore High Court in the case of Mohammad Hussain v. Inspector-General of Police (P L D 1967 Lah. 1123). In this case too the learned Judge merely quoted the second part of the provisions of clause 22 to repel the argument of the learned counsel who wished to rely upon it, for, they were of the view that the said provisions were not applicable in the case before them, because, of the absence of any "allegation in the writ petition that any criminal case is being investigated against the petitioner". The learned Judges merely examined the provisions quoted by them to consider whether they were at all attracted in the facts of that case, but again no opinion was expressed as to the nature or scope of those provisions. Curiously enough another learned Judge of the same High Court sitting singly subsequently chose to read into these words of the Division Bench something which was not there and to hold in the case of Chauhar Khan v. The State (P L D 1971 Lah. 328) that this was an authority for the proposition that the transference of an investiga tion can also be directed under the said clause and actually directed the transfer of the investigation, which had already commenced, from the Station House Officer concerned to "the Crimes Branch, Lahore." This is the only decision which supports the contention of the learned Advocate-General of Sind. In the case of Shamsuddin v. Capt. Gauhar Ayyub (P L D 1965 S C 496) clause 22 of the Letters Patent was relied upon in support of the contention that the High Court had the power to direct the transference of a criminal case pending in a criminal Court at Karachi to the original side of the High Court at Lahore but this Court repelled even this contention observing that "the High Court is clearly not a Court competent to carry out a preliminary investigation such as an enquiry under Chapter XVIII of the Code" but no detailed examination of the nature or scope of the provisions of Clause 22 was undertaken. What is a "preliminary investigation" has not, of course, been defined in the Letters Patent of the High Court nor has it been defined in the Code of Criminal Procedure although "investigation" has been defined in clause (1) of subsection (1) of section 4 of the Criminal Procedure Code as including "all the proceedings in this Code for the collection of evidence conducted by a Police Officer or by any person other than a Magistrate) who is authorized by a Magistrate in this behalf." Indeed there was no provision in the Criminal Procedure Code for preliminary investigation until section 196-B was introduced therein by an amending Act in 1923 (Act No. 18 of 1923). it is however, contended that "preliminary investigation" means the same thing as "investigation" or the proceedings contemplated either under section 159 or under section 202 of the same Code. Preliminary according to its dictionary meaning, means some thing preceding or leading up to the main subject or business." In this view of the matter a "preliminary investigation" would be something preceding or leading up to the main investiga tion as contemplated under the Criminal Procedure Code. Every word in the Letters Patent has to be given a meaning and, there fore, we are of the view that the "preliminary investigation" referred to in the Letters Patent is not the same thing as the "investigation" contemplated under the Criminal Procedure Code. In any event, the word "direct," which has been used in the aforementioned clause of the Letters Patent in contradistinction to the word "transfer" occurring earlier in the same clause, in our opinion, connotes that two distinct and different kinds of powers were intended to be given by the said clause to the High Court, namely, to "direct the transfer" of a case or an appeal and to "direct" simpliciter a "preliminary investigation" or trial as the case may be. The words used are, by no means, tautologous nor can it be said that the word "direct" includes the powers to transfer, for, then the first part of the clause would have been redunant and it would have been wholly unnecessary to give expressly the power "to direct the transfer" of a criminal case to the High Court. So far as the meaning of the word "direct" is concerned it is interesting to note that a Division Bench of the Lahore High Court in the case of the Crown v. Muhammad Sadiq Niaz (P L D 1949 Lah. 562) came to the conclusion that the word "direct" even in section 159 of the Code of Criminal Procedure meant a "command" and could only signify that something which was not being done should be done". In this sense of the word the Division Bench was of the view that the direction contemplated under section 159, Cr. P. C. "would be meaningless in relation to an investigation by the Police which is already in progress", because, the Police having already started doing something "no direction from the Court to do that which has already been done would be necessary or called for". We are in respectful agreement with this view and have no difficulty at all in holding that the word "direct" in clause 22 also bears the same sense and, therefore, the necessity for making a direction can only arise in a case where no investigation has started. The power to issue a direction cannot be invoked where investigation has already commenced in accordance with law by authorities competent to investigate under the Criminal n Procedure Code nor does the power to "direct" include the power to "transfer" from one competent investigating agency to another. This would be unwarranted interference with the investigation which has been disapproved of by the Judicial Committee of the Privy Council in the case of Emperor v. Kh. Nazir Ahmad (AIR 1945PC18). In this we have the support of the weighty reasons given by Lord Poter, who delivered the opinion of the Board in the said case of Emperor v. Kh. Nazir Ahmad, that this cannot be done. In that case the then Lahore High Court had under section 561-A, Cr. P. C. purported to quash certain "proceedings taken in pursuance of two first information reports" but the Judicial Committee set aside the order of the High Court in the following words :- "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 the 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 combina tion 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, Criminal P. C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then." Learned Advocate-General of Sind has however, relied on another passage in the opinion of Lord Poter in. support of his contention that section 561-A of the Criminal Procedure Code gives the High Court power to interfere in investigations. This passage is to the following effect :- "No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in A I R 1938 Mad. 129 (M. M. S. T. Chidambaram Chettiar v. Shanmugham Pillal)." The Madras case was, however. a case which was started on a complaint filed in the Court of the Sub-Divisional Magistrate, Tanjore, who had sent it to the Stationary Sub-Magistrate, Tanjore and the latter had directed process to issue against Chidambaram Chettiar. That complaint was dismissed by Newsam, J. of the Madras High Court in exercise of his powers under section 561-A, Cr. P. C. That was not a case, therefore, of interference with a police investigation but the proceeding that was quashed was the proceeding initiated on the basis of a complaint filed before a criminal Court. The observations of the Judicial Committee relied upon by the learned Advocate -General do not, therefore, assist him for those observations have to be read in the light of the facts of the Madras case. It*appears that in a recent case of State of West Bengal v. S. M. Basak (AIR 1963SC447) the Indian Supreme Court has also taken the view that we are inclined to take of the observations of the Judicial Committee in the case of Kh. Nazir Ahmad and has held that the High Court has no power under section 561-A of the Cr. P. C. to interfere E with police investigations into criminal offence. In the latter case the Calcutta High Court had purported to quash the investiga tion on the ground that the offence being an offence triable under the West Bengal Criminal Law (Amendment) (Special Courts) Act, 1949, the police had no jurisdiction to investigate at all. A similar view was expressed by Cornelius, C. J. (as he then was) while dismissing the petition of Sher Khan and others v. The State (1968 SCMR62). In the case of Ghulam Muhammad v. Muzammal Khan (P L D 1967 S C 317) this Court had occasion to point out that the power given by section 561-A, Cr. P. C., "can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." That was not a case for quashing an investigation simpliciter, for, their challans had already been put in by the Police before a competent Court and the High Court had quashed the proceedings on the ground that it was not the business of the Police to submit a challan for the commission of offences not disclosed in the first information report. This Court, however, set aside the order of the High Court because in the opinion of this Court there was no legal bar to the Police submitting a challan in respect of offences outer than those mentioned in the First Information Report. We have, therefore, upon a review of the relevant judicial opinions, come to the conclusion that the High Court has no power under section 561-A even to quash an investigation. The decision of another learned Single Judge of the High Court of West Pakistan, Lahore Seat, in the case of Yaqoob Khan v. State (PL D 1965 S C 287) holding that the High Court has such power cannot, therefore, be approved of and is accordingly overruled. If an investigation is launched mala fide or is clearly beyond f the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code. If this be the position with regard to the quashing of an investigation we have no manner of doubt that section 561-A of the Cr. P. C. does not give any power to transfer an investigation as claimed by the learned Advocate-General of Sind. Section 561-A of the Criminal Procedure Code runs as follows:- "561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of M. S. Khawaja v. The State (PL D 1965 S C 287) opined that the ends of justice to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process". In any view of the matter, therefore, we have to come to the conclusion that the impugned action of the High Court of Sind and Baluchistan in the present case was unwarranted and beyond its jurisdiction. For these reasons this appeal must be allowed and the orders of the High Court passed on the 30th October 1970, 2nd November 1970, 4th November 1970, 9th November 1970 and the 12th November 1970, must be set aside and the investigation of the case must be allowed to take its own course. Neither the Courts which may have to deal with the case in the event of a challan being put in or with any intermediary proceed ing with regard to it nor the officials who are concerned with the investigation or the supervision of the conduct of the Investigating Agencies will be influenced by any observations made by the learned Judge of the High Court in any one of these orders. These observations as the learned Judge has himself pointed out should not be construed so as to adversely affect anyone concerned with this case. In this view of the matter the decision of the Lahore High Court in the case of Chauhar Khan v. The State must also be overruled. Before concluding we must also observe that while we appreciate the anxiety which the learned Judge displayed in this case to secure what he thought would advance the ends of justice we would like to add by way of caution that it is of the utmost importance to remember that a superior Court should not allow itself to be influenced by sensational reports in news papers or by what he may have heard or read outside the Court, for, in the first case it may unwittingly be encouraging a trial by the press and In the other case unnecessarily be exposing itself to the criticism that its actions are motivated by bias. K. B. A. Appeal accepted.