P L D 1965 Azad J & K 40 (PLP)

This judgment also covers a cross application of Shukar Muhammad entitled "Shukar Muhammad v. Muhammad Lateef etc.". Both the applications one made by Muhammad Latif and the other made by Shukar Muhammad are under section 561‑A, Cr. P. C. The point to be determined in these applications is whether a Police investigation in a cognizable case should be ordered to be stayed in the interest of justice in view of the fact that a Magistrate 1st Class has already taken cognizance of a complaint on the same facts. The powers of the Police to investigate a cognizable offence are laid down under section 156 reproduced below :‑ (1) "Any Officer‑in‑charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area without the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial; (2) 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, (3) Any Magistrate empowered under section 190 may order such an investigation as above‑mentioned." The language of section 156, Cr. P. C. is clear. In this section an Officer‑in‑charge of the Police Station has unfettered powers of investigation and the same is the view expressed by several High Courts. In A I R 1932 Lah. 579, the question "whether when a Magistrate has taken cognizance of an offence on a complaint made to him and has directed an investigation to be made by a Police Officer, the Police are entitled, after investigation, to send up the accused for trial under charge‑sheet, if they had taken cognizance of it in their ordinary powers of investigation," was referred to a Division Bench, by order of the Chief Justice. While answering this question their Lordships of the Lahore High Court had dissented from A I R 1929 Bom. 72, wherein it was held that when a Magistrate had referred a complaint for investigation under section 202, the Police were not entitled after investigation to send up the accused for trial under a charge‑sheet as if they had taken cognizance of the case, under their ordinary powers of investigation. It was argued on behalf of the accused that if a Magistrate was in receipt of a case and sent for a report under section 202, Cr. P. C. the powers of the police under section 156, Criminal Procedure Code were ousted. In reply the contention of the learned Government Advocate was that the powers of the police under section 156 were independent of Magisterial powers which could be exercised by the police without condition and that the suggested restriction on their powers was not expressed nor was there anything in section 202, Cr. P. C. to indicate the suspension of the powers of the police by the receipt by a Magistrate of a private complaint. Their Lordships of the Lahore High Court accepted the contention of the Government Advocate and held that the powers of investigating cognizable cases had been conferred on the police in most general terms by the Court and that no power was given to the Magistrate to restrain the Police in their investigation, but that the Magistrate was given powers to obtain their assistance in having the investigation made either under section 156 (3) or section 202, Cr. P. C. Their Lordships further expressed the view that it was difficult to see how it could be imputed to the Legislature that by conferring the latter powers it meant by implication to limit the general powers of the police already given by the Court. In A I R 1923 Pat. 547 which was perhaps not quoted before their Lordships of Lahore High Court a similar view was expressed by the D. B. of the Patna High Court. It was contended on behalf of the respondents before their Lordships of the Patna High Court that the learned Magistrate had distrusted the truth of Ali Begs complaint and acting under section 202, Cr. P. C. sent it to the police for enquiry and report; that the police had no jurisdiction to do anything more than to hold a local inquiry and to send their report to the Sub‑Divisional Magistrate; and that they were incom?petent to exercise any of the powers which they might have possessed under 'the general provisions of Criminal procedure Code either under section 54, Cr. P. C. or under the chapter relating to the investigation of cognizable cases. In other words it was contended that the arrest of the 5th February was not an act done in excess of jurisdiction but with complete absence of jurisdiction." Their Lordships of the Patna High Court disagreeing with the conten?tion of the learned counsel on behalf of the respondents observed as under. "It is necessary, therefore, to see what was the meaning of the order of the 30th January. Reading that order it is impossible to say that it was an order made under section 202, Cr. P. C. In my opinion it was an order directing the police to exercise the independent powers conferred upon them by the law. The learned Deputy Magistrate nowhere says that he is proceeding under section 202, Cr. P. C. or that he distrusts the truth of the complaint; and in these circumstances the question is whether the police were entitled to proceed with the investigation independently of the Magistrate, even though a complaint was pending before the Magistrate in regard to the same matter. In my opinion there was nothing in the law to prevent such a course. The Criminal Procedure Code draws clear difference between jurisdiction to try and jurisdiction to investigate and it is possible to conceive of cases where, although the Magistrate may distrust a complaint or delay in passing orders the Police would be failing in their duty if they did not arrest an offender against whom a cognizable offence has been made out. Much more so would this be cage case where the Magistrate after recording the complaint finds that a regular police investigation would be more suitable and intentionally keeps the complaint pending in order that the police may exercise their powers of investigation and arrest independently of the Magistrate. In my opinion this is what he did in the present case. But even if the order of the Magistrate was an order under section 202, Cr. P. C. I cannot see why the jurisdiction of the police to arrest and to send up a charge‑sheet was ousted. In practice, of course, the police would not ordinarily take independent action in respect of a complaint which had already been distrusted by the Magistrate, but to lay down the general proposition that a Magistrate's order under section

202. Cr. P. C. debars the Police from exercising their powers of arrest and investigation, would, in my opinion, be neither expedient nor correct. Therefore from any point of view the police had in this case jurisdiction to take cognizance of the information which was given to them." In A I R 1931 Mad. 70, A I R 1929 Bom. was dissented from and it was observed as under: "On receiving information in a complaint forwarded under section 202, Cr. P. C. the police can investigate under section 156 if they choose to do so. The investigation is not illegal but mere report by them is sufficient. 'Thus it is clear that the trend of the rulings quoted above is that the powers of the police under section 156 are unfettered and I see no reason to differ with the view expressed in these rulings and 1, therefore, hold that even if there is a complaint of cognizable offence pending before the Magistrate, the police can investigate the case under section 156,1A Cr. P. C. It is only when a second trial on the same facts based on the investigation of the police, begins that a ground for investigation of this case under section 561‑A, Cr. P. C. might arise. I, therefore, for the reasons stated reject the application of Muhammad Latif praying that the police investigation 'be stopped and accept the application of Shukar Muhannmad praying for the investigation of the police to continue. The order whereby the police investigation was ordered to be stopped pending disposal of the application of Muharnmad Latif, is hereby vacated. K. B. A.?????????????????????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.