P (PLP)

The proper course therefore for the police is to submit a report of their conclusion whatever that may be along with the accused if his arrest is deemed necessary by them and the accused is arrested. If the Magistrate entertains the charge‑sheet then he would be ignoring the provisions of sections 203 and 204 of the Criminal Procedure Code and this proceedings would not be warranted by law and would be termed as illegal. The result would be that all those proceedings shall have to be quashed. A. I. R. 1932 Lah. 579, A. I. R. 1923 Pat. 547, A. I. R. 1931 Mad. 770, A. I. R. 1928 Cal: 24, 53 Bom. 339, A. I. R. 1938 Sind 113, A. I. R. 1929 Boni. 72, 5‑4 Cal. 303 ref. to. Fazal Karim Chishti, for Petitioner. Abduct Hameed Government Advocate for Crown. ORDER.‑‑A complaint under section 395 read with section 347 was instituted by, one Bakht against Muhammad Shafi, Ibrahim, Jagoo, Manzoor Ahmad and against Muhammad Sharif? Muham mad Shafi, Bashir, and Muhammad Hussain real brothers. It was originally instituted in the Court of Mr. Alvi Magistrate, Rahimyar Khan on 1st of March 1949. The Magistrate sent it on to the police under section 202 Criminal Procedure Code for enquiry and report. Before the report of the police could be received by the Magistrate the complaint was transferred to the file of Mr. Dilshad Magistrate at Khanpur under the order of the District Magistrate, Rahimyar Khan. Before Mr. Dilshad could receive a report from the police he was transferred to Rahimyar Khan. On 29th of October 1949 a challan was put up against' the petitioners before the District Magistrate who transferred it to the Court of Mr. Dilshad Magistrate 1st Class with section 30 powers. The complaint which was still in the Court of Magistrate Khanpur was also transferred to the Court of Mr. Dilshad. The proceedings however commenced on the challan placed by the police before the District Magistrate which was eventually, sent to Mr. Dilshad, Mr. Dilshad after examining the prosecution witnesses framed a charge against the petitioners. The present is a petition to quash the charge. I have heard lengthy arguments in this petition. The points raised by Mr. Chishti on behalf of his clients were, that Mr. Alvi once he had taken cognizance of the complaint was not competent to transfer it to the Court of Mr. Dilshad ; that when the police was directed to enquire and report under section 202 Criminal Procedure Code a charge‑sheet could not independently be prepared and produced by the police and the Magistrate could not proceed with the challan ignoring his own order to the police; that the Magistrate not having followed‑ the procedure laid down under section 342 Criminal Procedure Code rendered the entire proceedings in his Court illegal and lastly that the evidence on the file did not warrant the framing of 'the charge. As regards the first point the record of the trial Court reveals that the complaint in the Court of Mr. Alvi was not transferred by him to the Court of Mr. Dilshad at Khanpur but by the District Magistrate. It was admitted by Mr. Chishti that the District Magistrate was competent to order such a transfer. The next point needs a careful consideration as there is a divergence of opinion between the different High Courts on this point, The Lahore High Court in 1932 Lah. 579 and Patna High Court in 1923 Pat. 547 and Madras High Court in 1931 Mad. 770 have laid down the proposition which supports the contention of the learned Government Advocate to some extent, but 1928 Cal. 24, 58 Born. 339 and 1938 Sind 113 lay down a contrary view. The Sind Judicial Commissioner's Court in a lengthy Full Bench judgment had considered the contrary view and had come to the conclusion that there is nothing in section 202 which debars the police from exercising their powers under section 54 and arresting the accused merely because the Magistrate had referred a case for investigation by them under section 202 Criminal Procedure Code. But when the Magistrate had referred a complaint of an offence to the police 'f yr investigation under section 202, it is riot competent to the police to investigate the offence complained of independently of the Magistrate's directions and to send up the accused for trial for the offence complained of upon a charge‑sheet. In discussing the question the learned Judicial Commissioner had distinguished the Patna judgment on the ground that it was not virtually a complaint under section 202 of the Criminal Procedure Code. The observations of the learned. Judicial Commissioner were that the Patna case 2 Pat. 379 corresponding to 1923 p. 547 is clearly distinguishable from the case before` us. In that case the judges held that the order was not an order by a Magistrate under section ‑202 Criminal Procedure Code. The remark that even if it had been an order under section 202 Criminal Procedure Code the police could have jurisdiction to arrest and send up a charge‑sheet is obiter. With the further remarks ‑that the police would have powers to arrest and investi gate we respectfully agree because section 202 clearly contemplates that the police would have such powers ; but we do not think that the section contemplates the termination of the investigation by the police sending up a charge‑sheet, for, the Magistrate would have no need of a police report or challan or charge‑sheet to take cognizance under section 190 (b), having already a complaint under section 190 (a). As regards the Madras case the observations were " that the Madras case is a short judgment of a single judge and appears to proceed upon the ground that because the Magistrate has ordered the police to investigate and report, they could not arrest a dangerous murderer. But, for the reasons we have given we see no reason why the police should not have power to arrest a dangerous murderer even if the Magistrate has sent a complaint for investigation under section 202 ; and they can still report to the Magistrate as directed, and need not defy his authority." It will further be seen in. the Madras ruling that while the learned judge had observed that the investigation is not illegal 'yet he had also observed that mere report by them is sufficient. While ‑discussing the case quoted as 1932 Lah. 579 cor responding to 14 Lab. 194 the learned judicial Commissioner had observed that the question was dealt within general terms. The difficulty which arises in the coexistence of a complaint and challan is not resolved, but with the general proposition that there is nothing in section 202 to restrict the powers of the police in investigation we respectfully agree because our reading of section 202 (2) is that all these powers are by implication clearly preserved but the power to investigate and arrest is not necessarily dependent upon the power to send up the accused upon a charge sheet." While dealing with section 202 they had ruled that section 202 (1) refers not only to an enquiry but also to an in vestigation and section 202 (2) confers upon a person other than a Magistrate or a police officer all powers conferred upon the police officer incharge of the police station except the power of arrest without warrant. Surely this implies that a police officer to whom a complaint has been referred for investigation has the power to arrest without warrant under section 54 Criminal Procedure Code and all other powers which may be exercised by a police officer in the course of an investigation. To us the scheme of the section appears to be, that when a complaint is sent to the police for investigation and report, they are to investigate in precisely the same manner and to arrest in precisely the same way as they would have done if their powers had been first invoked by a first report under section 154, there being only this difference, that in the one case the police embody the result of their investigation to the Magistrate in a report which the Magistrate proceeds to consider under section 203, while in the other case the police embody the result of their investigation in what is called a challan or charge‑sheet, but which is really a police report under section 190 (b) the term challan or charge‑sheet not occurring in the section, the accused person, in any case, if arrested by the police, being produced before the Magistrate in the ordinary way. To hold otherwise would be to leave the proceedings started by the Magistrate under section 202 Criminal Procedure Code unfinished, and in the air ; for, he would not have as the law contemplates, a report of the investigation but he would have a refusal by the police to report as in this case, the other and independent proceedings in the same matter initiated by them. But the law contemplates that proceedings, begun by the accept ance by a Magistrate of a complaint under section 200 Criminal Procedure Code and sent to the police for investigation under section 202 Criminal Procedure Code should be terminated by the Magistrate as set out in section 203 and the following sections. The proceedings are not terminated when the Magistrate's authority is defied, his jurisdiction in effect denied and the order to investigate and report disobeyed. The law does not contem plate this, and we cannot see that this aspect of the case has been considered in any of the judgments which have been cited to us. These observations make the controversy absolutely clear. It is clear from section 202 that the police is competent to arrest an accused person during the enquiry or investigation on complaint sent to them by the Magistrate under section 202 of the Criminal Procedure. The apprehension raised in the rulings in which a different view is adopted in the presence of the clear language of section cannot subsist. It is also clear from these observations that if the police prepares a charge‑sheet indepen dently of the order of the Magistrate the complaint before the Magistrate is thrown into a back ground as the Magistrate when proceeding with the charge‑sheet would clearly ignore the provisions of sections 203 and 204 of the Criminal Procedure Code. It is therefore clear that the police while adopting that course would be disobeying the instructions of the Magistrate. The proper course therefore for the police is to submit a report of their conclusion whatever that may be along with the accused if his, arrest is deemed necessary by them and the accused is arrested. If the Magistrate entertains the charge‑sheet then he would be ignoring the provisions of sections 203 and 204 of the Criminal Procedure Code and his proceedings would not be warranted by law and would be termed as illegal. The result would be that all) those proceedings shall have to be quashed. In such circums tances I respectfully adopt the view that has been laid down in the F. B. ruling of the Sind Judicial Commissioner's Court and which is also supported by the D. B. ruling of the Bombay High Court in Noor Muhammad Raj Muhammad v. Emperor 1929 Born,

72. The result of all these deliberations is that the proceedings in the Court of the Magistrate cannot be sustained and they are all set aside. The Magistrate can adopt the charge‑sheet as a report by the police under section 202 Criminal Procedure Code and proceed in accordance with law under sections 203 and 204 Criminal Procedure Code as he deems fit. This view is supported by 54 Cal. 303 and 53 Bom.

339. With these observations I would accept the revision and set aside the proceedings of the learned Magistrate and direct him to proceed afresh from the stage the illegality had been committed in the light of the observations of this Court. The other question consequently needs no determi nation. The petitioner is directed to appear before the Magistrate on 5th March 1951. Announced. K. M. A. Petition accepted.