Powers of Justice of Peace

Refusal of the S.H.O. to register a criminal case on the ground of previous civil litigation and pendency of earlier registered criminal case

Validity

Rationale behind the conferring of powers upon the Justice of Peace was to enable the aggrieved person to approach the court of Justice of Peace for the redressal of his grievance i.e. non-registration of FIRs, excess of police, transfer of investigation to the court situated at District level or Session or at a particular Sessions Division

Main purpose of S. 22-A(6), Cr.P.C., was to create a forum at the doorstep of the people for their convenience

Primarily, proceedings before the Ex-Officio Justice of Peace are quasi-judicial and are not executive, administrative or ministerial to deal with the matters mechanically

Every case before Ex-Offcio Justice of Peace demands discretion and judicial observations after hearing the parties

Justice of Peace before passing any order for the registration of the FIR shall put the other party on notice against whom the registration of FIR is asked for

Even if there is no direction of the Court, the S.H.O. has no authority to refuse to record the statement of the complainant in the relevant register irrespective of its authenticity/correctness or falsity of such statement

Check against the lodging of false FIR is not the refusal to record such FIR, but the punishment of such informants under S. 182, P.P.C., etc. which should be, if enforced, a fair deterrent against misuse of the provisions of S. 154, Cr.P.C.

Criminal miscellaneous application was disposed of, in circumstances.

Petitioners challenged the vires of an inquiry conducted by Federal Investigation Agency (FIA) on the allegations of illegal issuance of loans and money laundering

Validity

Petitioners had an alternate remedy under S.22-A(6), Cr.P.C. and in such like cases, High Court always showed reluctance to encourage the practice to invoke the extra-ordinary Constitutional jurisdiction under Art. 199 of the Constitution

Provisions of S.22-A(6), Cr.P.C. were made part of the statute book with the object to reduce the burden of High Court by designating Sessions Judges and on their nomination Additional Sessions Judges as ex-officio Justice of Peace to share the powers of High Court in the matters mentioned in subsection (6) of S.22-A, Cr.P.C.

Constitutional petition, in view of availability of alternate remedy, was dismissed.

Section 22-A(6), Cr.P.C. provides an adequate and efficacious alternative remedy to any person who is aggrieved by the excess committed by the 'police authorities'

Question before High Court was whether FIR fell within the expression 'police authorities' as used in S.22-A(6), Cr.P.C.

Held; FIA was constituted under S.3 of the Federal Investigation Agency Act, 1974

Section 4(2) provided that the administration of the Agency shall vest in the Director General who shall exercise, in respect of the Agency, the powers of an Inspector General of Police under the Police Act, 1861

While S.5(1) in most unequivocal manner provided that the members of the Agency shall, for the purpose of an inquiry or investigation under the Federal Investigation Agency Act, 1974, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of Provincial Police have in relation to the investigation of offences under the Criminal Procedure Code, 1898 or any other law for the time being in force, therefore, when functions, rights, privileges and liabilities of officials of FIA were same as that of Provincial Police officer under the Cr.P.C., ex-officio Justice of Peace was very much competent to issue directions to the FIA as it could issue to the Provincial Police

Term 'police authorities' used in S.22-A(6), Cr.P.C., was wide enough to include FIA officials

No provision of the Federal Investigation Agency Act, 1974, contradicted the powers of ex-officio Justice of Peace granted under S.22-A(6), Cr.P.C.

Question before High Court was whether an application filed under S.22-A(6), Cr.P.C. could not be transferred under S. 526, Cr.P.C., then whether an aggrieved person was left remediless or any remedy was available

Held; answer was in negative

Where one's right was invaded or infringed, the law provided a remedy to protect it

Under Arts. 4 & 10-A of the Constitution every person had a right to be dealt in accordance with law and had a fair trial

Person who was aggrieved by some unwarranted act, always had a remedy available under Art.199 of the Constitution

Maxim ubi jus ibi remedium had always been considered as one of the fundamental principles of law and natural justice

When there was no other remedy available to an aggrieved person, he could approach High Court under Art.199 of the Constitution.

Appointment of Justice of Peace is governed by S.22, Cr.P.C., which provides that the Provincial Government may, by notification in Official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it, any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied to be a Justice of the Peace for a local area to be specified in the notification

Section 25, Cr.P.C., provides that by virtue of their respective offices, the Sessions Judges and on nomination by them Additional Sessions Judges are Justices of Peace within and for the whole of the district of the province in which they are serving

All the Sessions Judges and on their nomination, Additional Sessions Judges are ex-officio Justices of Peace and their powers are provided under subsection (6) of S.22-A, Cr.P.C.

Classes of criminal courts are provided in S. 6 of Cr.P.C

Section 6, Cr.P.C., clearly envisages that under said section, besides High Court, there are two classes of Criminal Courts i.e. Courts of Sessions and Courts of Magistrates and office of Justice of Peace nowhere falls within the ambit of definition of a "criminal court"

Classes of criminal courts are provided in Chapter-A of Cr.P.C., while office of Justice of Peace is established under Chapter-E of Cr.P.C., and this placement of Justice of Peace in another chapter itself suggests that legislature has not intended to include office of Justice of Peace in the classes of criminal courts

Justice of Peace while performing its functions under S. 22-A(6), Cr.P.C., is not a criminal court and this pre-condition to exercise the jurisdiction under S. 526, Cr.P.C., is not fulfilled

Section 526, Cr.P.C., only deals with the transfer of a proceedings before a criminal court, hence provisions of S.526, Cr.P.C., cannot be adhered to for transferring a proceedings under S.22-A(6), Cr.P.C., pending before a Justice of Peace.

Functions of Justice of Peace were quasi-judicial as he entertain applications, examine the record, hear the parties, pass orders and issue directions with due application of mind

Every lis before him demanded discretion and judgment

Functions so performed could not be termed as executive, administrative or ministerial on any account.

Justice of Peace, in exercise of powers under S.22-A, Cr.P.C., had directed the S.H.O. concerned to register the FIR against the petitioners and others as a cognizable offence, seemed to have been committed by the petitioners

Said order had been passed by the Justice of Peace in accordance with law, keeping in view the allegations levelled against the petitioners, leading to a cognizable offence committed by the person mentioned therein

S.H.O. of the concerned Police Station, was bound under the law to register a case under the relevant section of law

Even otherwise the questions urged by the counsel for the petitioners, being contentious, were essentially one of facts, requiring recording of evidence, with which, the court competent to try the petitioners, could deal, either during the trial or through an application under S.249-A or 265-K, Cr.P.C.

No jurisdictional defect having been found in impugned order, passed by Justice of Peace, which could justify interference of High Court in exercise of its constitutional jurisdiction, constitutional petitions were dismissed, in circumstances.

Leave granting order by the Supreme Court, and issuance of notices to Attorney General and Advocate Generals of the four Provinces in an appeal whereby vires of S.22-A, Cr.P.C. was challenged, by itself would not be sufficient to suspend the proceedings relating to scope of S.22-A, Cr.P.C. in constitutional petitions before the High Court

"Leave granting order or leave refusing order" by the Supreme Court was not a "judgment".

Discretion had been given to the Justice of Peace to decide the matter keeping in view the facts and circumstances of the case

No compulsion in each and every case to issue direction for registration of case

Justice of Peace had to pass a suitable and proper order while taking into consideration the facts and circumstances of the case; and yardstick to exercise jurisdiction

Each and every case, had to be decided keeping in view its own facts and circumstances; and no hard and fast rule could be formulated as to which type of order had to be made by Justice of Peace

Justice of Peace, must be conscious that order had not to be made in a mechanical way

Discretion had to be exercised justly, fairly, reasonably; and arbitrary exercise of discretion, would be held to be inconsistent with the mandate of the Constitution

If a person would approach the court for registration of the case, the omission on the part of local Police, while taking into consideration the reasons for such non-feasance, would give domain to Justice of Peace to make an appropriate order

Provision of S.22-A, Cr.P.C., was part of procedural law, just providing a forum to redress the grievance of aggrieved party subject to the conditions mentioned therein, and did not highlight a yardstick for making appropriate order.

Code of Criminal Procedure, 1898 had provided a complete scheme for investigation, registration of cases and trial, but S.22-A(6), Cr.P.C., had been enacted to provide a remedy for redressal of grievance of aggrieved persons against the Police, which they faced due to non-registration of the genuine cases

Similar powers could be exercised by highup of the Police on administrative side as well as the High Court under supervisory jurisdiction, but an independent forum had been provided by appointing Justice of Peace by the Legislature

Functions assigned to the Justice of Peace under S.22-A, Cr.P.C., had been listed in subsections (1), (2), (3)(a)(b)(c), (4) & (5)(a)(b)(c) of said section

Justice of Peace was also empowered to direct the concerned Police authorities in the matter enunciated under subsection (6) of S.22-A, Cr.P.C.

No court including the High Court could interfere in the investigation, until and unless a glaring case of neglect or misuse of authority was pointed out

Jurisdiction of Justice of Peace was limited only to the matter enumerated in said sections

Justice of Peace, could direct the Police to register the case, if a cognizable offence was made out from the facts stated in the application, submitted before him and could also pass an order upon unnecessary transfer of investigation from one Police Officer to another

Justice of Peace could also take appropriate order, where neglect, failure or excess was committed by the Police in relation to its functions and duties, if noted by him, as was provided in subsection (6)(iii) of S.22-A, Cr.P.C.

Word 'neglect', 'failure' or 'excess' committed by Police authority must be with reference to the investigation

Material collected by the Police, investigation carried out could be betterly judged by the Trial Court

Police or any authority, could not judge the legality and propriety of the material collected by the Police; and those powers vest with the Trial Court, who had to decide the case ultimately

Justice of Peace, could not direct the Police to present challan in a particular provision.

Offences as alleged in the present case were committed by proposed accused persons were non-cognizable, but SHO failed to adopt the procedure provided under S.155(1), Cr.P.C.

Petitioners, approached the Justice of Peace to use his power in the matter, but Justice of Peace declined application filed by the petitioner through impugned order

Ex-officio Justice of Peace, was not supposed to allow application under S.22-A, Cr.P.C., in a mechanical manner, but he had to apply his mind, as to whether, the applicant had approached the court with clean hands; or it was tainted with malice

If the matter was judged in the light of that background, petitioner was trying to compensate himself about his wrong, he did with respondents

Appeal and revision, could be filed, only against an order/judgment passed by a competent court falling under S.6, Cr.P.C.; and any order passed by such court could be examined by High Court as provided under S.435, Cr.P.C.

Justice of Peace, could not be said to be a judicial authority holding a court as classified under S.6, Cr.P.C.

Order passed by Justice of Peace, could not be impugned through revision before Chief Court, because said order fell within the domain of administrative or supervisory, and not amenable to revisional jurisdiction

Revision petition, being not sustainable both on merit and maintainability, was dismissed, in circumstances.

Where a complaint was not entertained by the concerned Station House Officer (SHO) or statement of complainant was not recorded by him or an F.I.R. was not registered, then the complainant had to approach the Justice of Peace under S.22-A, Cr.P.C.

Ex Officio Justice of Peace may issue appropriate direction to the police with regard to neglect, failure or excess committed by the police officer in relation to his functions and duties

With no stretch of imagination Ss. 22-A & 22-B, Cr.P.C. authorize Justice of Peace to quash or cancel F.I.R. in a case pending trial

High Court allowed the constitutional petition and impugned order of quashment of F.I.R. was set aside.