P L D 1977 Lahore 424 (PLP)

The exercise of power under Article 199 of the Constitution is subject to the condition that there is no adequate remedy provided by law. Such an adequate remedy is provided to a complainant under section 190 read with sections 200 to 203, Cr. P. C. Section 190 provides that a Magistrate may take cognizance upon receiving a complaint of facts which constitutes such offence. The procedure for dealing with such complaints is provided in sections 200 to 203, Cr. P. C. There may be cases where the evidence to prove the commission of an offence cannot be collected except through the police agency. Similarly there may be cases where the entire evidence to prove the commission of such offence, is with the complainant. In the second category of cases it cannot be doubted that the complaint before the Magistrate is an adequate remedy. In such case the High Court refuses to exercise in writ jurisdiction under Article 199 of the Constitution. The advisability of exercising a discretion in favour a petitioner can be considered only in a case where the evidence can be collected through the agency of the police. Wasim Sajjad for Petitioner. Yasin Wattoo for Respondents. Date of hearing 30th September 1976. AFTAB HUSSAIN, J.-This appeal is directed against an order dated 1st of June 1976 passed by the learned Judge-in-Chamber dismissing Writ Petition No. 558/1976 P L D 1976 Lah. 1348.

2. The appellant had prayed in his writ petition for a direction to the police to register a case of bribery against respondent No. 1 and for bringing, him to trial before the Court. Another prayer was for a direction to investigate the conduct of respondent No.

1. The facts on which this direction was sought to be issued was that respondent No. 1 dictated a First Information Report against the petitioner under section 366/148, P. P. C. read with section 49 of the Defence of Pakistan Rules and section 16 of the Maintenance of Public Order Ordinance. The appellant was thereafter forced to pay bribe amounting to Rs. 2,000 to the respondent who thereupon returned that F.

1. R. to the appellant. Since no action was taken even by the Superintendent of Police, Lyallpur on a complaint of the, appellant, he filed this writ petition.

3. The learned Judge-in-Chamber dismissed the petition on the basis of his judgment in C~. Shah Muhammad v. S. H. O. etc. (Writ Petition No. 821/1976) and another decision of a Division Bench of this Court in Infra-Court Appeal No. 31/1976 P L D 1976 Lah. 1412.

4. In Writ Petition No. 821/1976 the learned Single Judge after relying upon rule 24.4 of the Police Rules held that in view of that rule read with proviso to sections 157 and 154, Cr. P. C.. if the police suspects that there was no reasonable grounds for recording the First Information Report or making the investigation and refuses to proceed in the matter, the action of the police cannot be said to be without lawful authority. It was further held that such a complainant/petitioner had also a remedy to File a complaint before a Court of competent jurisdiction.

1. C. A. 30/1976 was however, decided on ground of alternative remedy. It was held that where the evidence was already with the petitioner and nothing more was to be done in the form of investigation by the police, the petitioner has an adequate remedy of filing a complaint. On the basis of those propositions the learned Judge-in-Chamber found that the instant case was not one of those cases where much had to be done in the form of investigation by the police.

5. The first question is whether the police officer can refuse to record an F. I. R. even if it discloses a cognizable offence. The answer to this question is furnished by the mandatory provisions of section 154 of the Cr. P. C. which provides "that every information relating to the commission of a cognisable offence if given orally to an officer-in-charge of a police station, 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." This provision, mandatory as it is, leaves no scope for exercise of any discretion by the police officer concerned in recording the First Information Report or in refusing to record the same.

6. The procedure to be adopted by the police officer where he suspects commission of any cognisable offence is provided in section 157 of the Code of Criminal Procedure. These provisions have to be read along with provisions of section 156 which authorises the officer-in-charge of a police station to investigate without the order of a Magistrate any cognisable offence where a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or to try under the provisions of Chapter XV, Cr. P. C relating to the place of inquiry or trial. Section 157 provides that `if, from information received or otherwise, an officer incharge 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. This provision is subject to two provisos. The first proviso authorises the officer in charge not to proceed in person or depute a subordinate officer to make an investigation on the spot when the information as to the commission of any offence is given against any person by name and the case is not of serious nature. The second proviso authorises him not to investigate the case if there is no sufficient ground for entering on an investigation.

7. The provisions of sections 154 and 157 are different in scope. The section which is applicable to a case where the First Information Report i given by some other person and the action is not taken suo motu by the officer-in-charge of a police station. would be section 154 which makes it C incumbent upon such officer to reduce in writing the information given or get it so reduced and then to enter it in the book kept for this purpose. The provisos on which reliance has been placed by the learned Judge-in-Chamber in the judgment of Writ Petition No. 821/1976 are applicable only to investigation and not to the recording of the First Information Report.

8. In that judgment the provisions of rule 24.4 and rule 24.1 were also considered and were held to be in consonance with the provisions of the proviso to section 157 and the provisions of section

154. But the provisions of these rules do not vest the police officer with the power to refuse to record the First Information Report under section

154. In fact rule 24.1 also states that sections 154 and 155, Code of Criminal Procedure, provide that every information relating to an offence, whether cognizable or non-cognizable, .shall be recorded in writing by the officer incharge of a police station. The distinction between the form of reports required in a cognizable offence and the one which is required in a non-cognizable offence as drawn by the Punjab Chief Court, was also referred to. This distinction is in the following ;language :- "Every information covered by section 154, Criminal Procedure Code, must be reduced to writing as provided in that section and the substance thereof must be entered in the police station daily diary, which is the book provided for the purpose. It is only information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given which compels action under section 157, Criminal Procedure Code."

9. Again rule 24.4 deals with the powers of investigation and not with the recording of the First Information Report given by a complainant. In this view of the matter it cannot be said that these rules vest the police station officer concerned with any power to refuse to record the F. I. R. of a cognizable offence as required by section 154, Cr. P. C. The section as well as rule 24.1 use the word "shall" to making it incumbent upon the police officer to record the F. I. R. In the distinction said to have been drawn in the form of reports by the Punjab Chief Court, it is stated that the information must be reduced to writing. This leaves no scope for argument that this power is discretionary.

10. Sections 154 and 15' deal with different contingencies. The former section provides for the recording of the F. I. R. at the instance of a complainant while section 157 deals with the procedure for investigation of any cognisable offence. The later provision leaves it to the judgment of the relevant police officer to refuse to investigate in certain cases where for example there is no sufficient ground for entering on an investigation. Bat this power should not be confused with his responsibility to record the First Information Report. He has no choice in the recording of the First information Report though he has a discretion in the making of investigation or refusing to make it on the grounds given in section

157. The writ petition so far as concerns the prayer for directing the police officer to investigate into the conduct of respondent No. 1 or to bring him to trial, cannot, therefore, be allowed as the High Court does not interfere with the exercise of discretion.

11. The appellant, however, has a right to complain against the refusal to record the First Information Report as required by section 154, Cr. P. C. We, therefore, are not in agreement with the interpretation in the order of Writ Petition No. 321/1976 that the refusal of a police officer to record the First Information Report as required by section 154, Cr. P. C. cannot be said to be without lawful authority.

12. The principle of law that has been enunciated in the Intra-Court Appeal No. 31/1976 is, however, unexceptionable. The exercise of power under Article 19.9 of the Constitution is subject to the condition that there is no adequate remedy provided by law. Such an adequate remedy is provided to a complainant under section 190 read with sections 200 to 203, Cr. P. C. Section 190 provides that a Magistrate may take cognizance upon receiving a complaint of facts which constitutes such offence. The procedure for dealing with such complaints is provided in sections 200 to 203, Cr. P. C. There may be cases where the evidence to prove the commission of an offence cannot be collected except through the police agency. Similarly there may be cases where the entire evidence to prove the commission of such offence, is l the complainant. In the second category of cases it cannot be doubted 'a that the complaint before the Magistrate is an adequate remedy. In such case the High Court refuses to exercise in writ jurisdiction under Article 199 of the constitution. The advisability of exercising a discretion in favour a petitioner can be considered only in a case where the evidence can be collected through the agency of the police.

13. Keeping these principles In view we are in agreement with the` finding of the learned Judge-in-Chamber. In the present case the entire evidence is in the possession and knowledge of the complainant and he can seek the enforcement of attendance of his witnesses through Court if he files a complaint. This remedy is quite adequate. The appeal is, therefore) without force and is dismissed. S. A. H. Appeal dismissed.