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PETITIONER: S.N. SHARMA

       Vs.

RESPONDENT: BIPEN KUMAR TIWARI AND ORS.

DATE OF JUDGMENT: 10/03/1970

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SIKRI, S.M. VAIDYIALINGAM, C.A.

CITATION:  1970 AIR  786            1970 SCR  (3) 946  1970 SCC  (3) 653  CITATOR INFO :  F          1980 SC 326  (27)  R          1982 SC 949  (17,54,58,64)  R          1985 SC 195  (22)  D          1988 SC 805  (13)  RF         1991 SC1260  (42)  R          1992 SC 604  (36,59,93)

ACT: Code of   Criminal Procedure, (5 of 1898), s. 159-Magistrate if can hold enquiry himself, and stop police investigation.

HEADNOTE: A first information report was lodged in respect of a  crime and   the  appellant,  who  was  the   Additional   District Magistrate   (Judicial)  was  named  therein  as   principal accused.   The  offences mentioned were cognizable  and  the Police  after registering the case,  started  investigation. The  appellant  applied  to  the  Judicial  Magistrate   for invocation  of  the provisions of s. 159  Cr.P.C.,  and  for conducting  preliminary enquiry by the Court itself and  for issuance  of  necessary  directions to the  Police  to  stop investigation  alleging that a false report had been  lodged at  the  instance  of  the  local  police.   The  Magistrate directed  the  police to stop investigation and  decided  to hold  the  enquiry himself.  Thereupon  an  application  was moved in the High Court under s. 561 A Cr.P.C. for  quashing the  order  of the Magistrate as he had no  jurisdiction  to pass  such  an  order under s. 159 Cr.P.C.  The  High  Court accepted  the  application and set  aside  the  Magistrate’s order.  Dismissing the appeal, this Court, HELD : Section 159 Cr.P.C. does not empower a Magistrate  to stop investigation by the police. This  section first mentions the power of the Magistrate  to direct  an  investigation on receiving the report  under  s. 157, and then states the alternative that, if he thinks fit, he   may  -it  once  proceed,  of  depute   any   Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwiseto dispose of, the case.  On the face of it,  the  first alternative of  directing  an  investigation cannotarise in a case where the report itself shows that

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investigation  by the police is going on in accordance  with s.  156.   It is to be noticed that the  second  alternative does not give the Magistrate an unqualified power to proceed himself  or  depute any Magistrate to hold  the  preliminary enquiry.That power is preceded by the condition that he  may do  so, "if he thinks fit" The use of this expression  makes it  clear  that  s. 159 is primarily meant to  give  to  the Magistrate the power of directing an investigation in  cases where  the police decides not to investigate the case  under the proviso to s. 157(1), and it is in those cases that.  if he  thinks  fit,  he  can  choose  the  second  alternative. Without  the  use of the expression "if he thinks  fit"  the second alternative could have been held to be independent of the  first;  but the use of this expression makes  it  plain that  the  power  conferred by the_ second  clause  of  this section  is only ,in alternative to the Power given  by  the first clause and Fan, therefore. he exercised only in those, cases in which the first clause is applicable. Even  in sub-s.(3) of section 156, the only power  given  to the Magistrate, who can take cognisance of an offence  under section  190,  is  to order an investigation,  there  is  no mention of any power to stop an investigation by the police. The  scheme  of these sections, thus, clearly  is  that  the Dower of the Police to investigate any cognizable offence is uncontrolled  by  the Magistrate, and it is  only  in  cases where the police                             947 decide not, to investigate the case that the Magistrate  can intervene  and  either direct an investigation, or,  in  the alternative,   himself  proceed  or  depute   a   Magistrate subordinate to him to proceed to enquire into the case. [949 G-950 F] The  Crown  v. Mohammad Sadia Naiz, A.I.R. 1949,  Lah.  204, Pancham  Singh v. The State, A.I.R. 1967 Pat. 416  and  King Emperor v. Khwaja Nazir Ahmad, 71 I.A. 203, referred to. (2)The  Code  of  Criminal Procedure  gives  to  the  police unfettered power to investigate all cases where they suspect a  cognizable  offence has been committed.   If  the  police engineer a false report of a cognizable offence against  any person  he can in appropriate cases always invoke the  Power of the High Court under Act. 226.  Therefore, the fact  that the  Code  does not provide for.a power to a  Magistrate  to stop  investigation  by the Police cannot be  a  ground  for holding  that -such a power must be read into s. 159 of  the Code. [951 H]

JUDGMENT: CRIMINAL APPELLATE- JURISDICTION: Criminal Appeal No.256  of 1969. Appeal  by special leave from the judgment and  order  dated January  15,  1969 of the Allahabad High Court  in  Criminal Misc.  Case No. 1770 of 1968. R.   K. Garg, S. C. Agarwal, D. P. Singh, V. J. Francis and S.   Chakravarty, for the appellant. O. P. Rana, for respondent No. 2. The Judgment of the Court was delivered by Bhargava  J  A first information report was  lodged  by  one Vijay Shanker Nigam in Police Station Cantonment, Gorakhpur, in  respect of an incident alleged to have taken  place  ’at about 7 p.m. on 10th April, 1968 in front of his house.  The report stated that one Bipen Kumar Tiwari had been  attacked by  certain  goondas who also stabbed him with a  knife  and further caused injuries ot Vijay Shankar Nigam also.  One of

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the principal accused named in that report was S. N. Sharma, Additional District Magistrate (Judicial), Gorakhpur, who is the  appellant in this appeal.  The allegation -against  him was  that  it was at his instigation that  the  goondas  had attacked  Bipen  Kumar Tiwari and attempted to  murder  him. The offences made out by the report lodged by Vijay  Shankar Nigam were cognizable and the Police, after registering  the case,  started investigation.  On the 13th April, 1968,  the appellant   moved   an  application  before   the   Judicial Magistrate  having  jurisdiction to take cognizance  of  the offence,  alleging  that  a false  report  bad  been  lodged against  him  at the connivance and instance  of  the  local police.  It was urged that it would, therefore, be desirable in the interest of justice that provisions of section 159 of the Code of Criminal Procedure be 948 invoked and the preliminary enquiry may be conducted by  the Court  itself and necessary directions may be issued to  the Police  to  stop the investigation.  The  Magistrate,  after hearing  both parties, passed an order directing the  police to  stop  investigation  and decided  to  hold  the  enquiry himself.   Thereupon, on 2nd May, 1968, an  application  was moved in the High Court of Allahabad under section 561A, Cr. P.C.,  to quash the order passed by the Magistrate  on  13th April,  1968, on the ground that he had no  jurisdiction  to pass such an order under S. 159, Cr.  P.C. This  application was  allowed by the High Court by -its judgment  dated  15th January,  1969, so that the High Court quashed the order  of the  Judicial  Magistrate  and  held  that  the  police   of Gorakhpur  was at liberty to conclude the investigation  and submit  its  report to the Magistrate after which  the  case could  proceed  in accordance with law.  The  appellant  has challenged  this  order  of the High Court  in  this  appeal brought up by special, leave. Section 156(1) of the Code of Criminal Procedure empowers an officer  in  charge of a police-station to  investigate  any cognizable  case  without the order of a  Magistrate.   Sub- section  (2)  of S. 156 lays down that  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, while  sub-s.  (3) gives power to any  Magistrate  empowered under section 190 of the Code to order such an investigation in  any  case  as  mentioned in  sub-s.  (1).   Section  157 requires  that, whenever such information in received by  an officer in charge of a police-station that he has reason  to suspect  the commission of an offence which he is  empowered to  investigate under section 156, he must forthwith send  a report of it to the Magistrate empowered to take  cognizance of  such  an offence upon a police report and, at  the  same time,  he must either proceed in person, or depute. -one  of his  subordinate  officers  to  proceed,  to  the  spot   to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of  the offender.  This provision is qualified by a proviso which is in  two parts.  The first clause of the proviso  enables  an officer in charge of a police station not to proceed to make an  investigation  on the spot or to  depute  a  subordinate officer  for  that purpose if the  information  received  is given  against  a person by name and the case is  not  of  a serious  nature.  The second clause. of the proviso  permits the officer in charge of a police station not to investigate the  case if it appears to him that there is  no  sufficient ground  for entering on an investigation.  The report to  be sent  to  the  Magistrate under sub-s. (1)  of  section  157

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requires  that  in each of the cases where  the  officer  in charge  of the police station decides to act under  the  two clauses of the proviso, he must state in his report 949 his reasons for not fully complying with the requirements of subsection  (1) and, in addition, in cases where he  decided not  to  investigate on the ground mentioned in  the  second clause  of  the  proviso, he is required to  notify  to  the informant the fact that he will not investigate the case  or cause it to be investigated.  These provisions are  followed by section 159 which is as follows               "159.   Such  Magistrate,  on  receiving  such               report, may direct an investigation or, if  he               thinks  fit,  at once proceed, or  depute  any               Magistrate  subordinate to him to proceed,  to               hold a preliminary inquiry into, or  otherwise               to dispose of, the case in manner provided  in               this Code." The High Court has held that, under s. 159, the only  power, which the Magistrate can exercise on receiving a report from the  officer  in charge of a police station, is to  make  an order  in  those cases which are covered by the  proviso  to sub-s. (1) of section 157, viz., cases in which the  officer in  charge  of  the  police  station  does  not  proceed  to investigate  the case.  The High Court has  furl,-:her  held that  this  s.  159 does not empower a  Magistrate  to  stop investigation  by  the  police  in  exercise  of  the  power conferred  on it by section 156.  It is the  correctness  of this  decision which has been challenged by  the  appellant, and the ground taken is that s. 159 should be interpreted as being  wide enough to permit the Magistrate to  proceed,  or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of,  the case in the manner provided in this Code, even if the report from  the police, submitted under section 157,  states  that the  police  is  proceeding with the  investigation  of  the offence.  It was urged by counsel for the appellant that the narrower interpretation of s. 159 accepted by the High Court will leave persons at the mercy of the police who can harass any  one  by  having  a false  report  lodged  and  starting investigation  on  the basis of such a  report  without  any control  by the judiciary.  He has  particularly  emphasised the case of the appellant who was himself a Judicial Officer working as Additional District Magistrate and who moved  the Magistrate on the ground that the police had engineered  the case against him. We, however, feel constrained to hold that the language used in  s.  159  does not permit the  wider  interpretation  put forward  by  counsel for the appellant  This  section  first mentions   the  power  of  the  Magistrate  to   direct   an investigation on receiving the report under s. 157, and then states  the  alternative that, if he thinks fit, he  may  at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose  of,  the  case.   On the  face  of  it,  the  first alternative of directing an investigation cannot arise in  a case where the report itself shows that investigation by the police is going on in 950 accordance with S. 156.- It is to be noticed that the second alternative  does  not give the  Magistrate  an  unqualified power  to proceed himself or depute any Magistrate  to  hold the  preliminary  enquiry.  That power is  preceded  by  the condition that he may do so, "if he thinks fit".  The use of this  expression  makes it clear that S.  159  is  primarily

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meant  to give to the Magistrate the power of  directing  an investigation  in  cases  where the  police  decide  not  to investigate the case under the proviso to S. 157(1), and  it is in those cases that, if he thinks fit, he can choose  the second  alternative.  If the expression "if he  thinks  fit" had  not  been  used, it might have been  argued  that  this section was intended to give in wide terms the power to  the Magistrate  to  adopt  any  of the  two  courses  of  either directing  an  investigation, or of  proceeding  himself  or deputing  any  Magistrate subordinate to him to  proceed  to hold a preliminary enquiry as the circumstances of the  case may  require.   Without  the use of the  expression  "if  he thinks fit", the second alternative could have been held  to be independent of the first; but the use of this expression, in  our opinion, makes it plain that the power conferred  by the second clause of this section is only an alternative  to the  power given by the first clause and can, therefore,  be exercised  only in those cases in which the first clause  is applicable. It  may also be further noticed that, even in sub-s. (3)  of section 156, the only power given to the Magistrate, who can take cognizance of an offence under section 190, is to order an  investigation; there is no mention of any power to  stop an   investigation   by   the   police.    The   scheme   of these,sections,  thus,  clearly  is that the  power  of  the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the  police decide  not to investigate the case that the Magistrate  can intervene  and  either direct an investigation, or,  in  the alternative,   himself  proceed  or  depute   a   Magistrate subordinate to him to proceed to enquire into the case.  The power of the police to investigate has been made independent of any control by the Magistrate. The  High Court of Lahore in   The Crown v.  Mohammad  Sadiq Niaz(1), and the High Court of Patna in Pancham Singh v. The State(1) interpreted section 159 to the same effect as  held by  us above.  The reasons given were different.   Both  the Courts based their decisions primarily on the view expressed by  the  Privy (3) Council in King-Emperor v.  Khwaja  Nazir Ahmad . That case, however, was not quite to the point  that has  come up for decision before us.  The Privy Council  was concerned with the question whether the High Court had power under section 561A of the (1)  A.I.R. 1949 Lah. 204. (3) 71 I.A. 203. (2) A.I. R. 1967 Patna 418. 95 1 Code of Criminal Procedure to quash proceedings being  taken by the police in pursuance of first information reports made to the police.  However, the Privy Council made some remarks which  have been relied upon by the High Courts and  are  to the following effect :-               "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               combination  of individual liberty with a  due

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             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 S.  491  of               the Criminal Procedure Code to give directions               in the nature of habeas corpus." This interpretation, to some extent, supports the view  that the scheme of the Criminal Procedure Code is that the  power of the police to investigate a cognizable offence is not  to be interfered with by the judiciary.  Their Lordships of the Privy  Council  were,  of course, concerned  only  with  the powers  of the High Court under .sect-ion 561A,  Cr.   P.C., while  we  have to interpret section 159 of the  Code  which defines the powers of, a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under section 157 of the Code.  In our opinion, section  159 was  really  intended  to  give  a  limited  power  to   the Magistrate  to  ensure  that  the  police  investigate   all cognizable  offences and do not refuse to do so  by  abusing the   right  granted  for  certain  limited  cases  of   not proceeding with the investigation of the offence. Counsel appearing on behalf of the appellant urged that such an   interpretation  is  likely  to  be   very   prejudicial particularly  to Officers of the judiciary who have to  deal with  cases  brought up by the police  and  frequently  give decisions  which  the police dislike.  In  such  cases,  the police may engineer a false, report of a cognizable  offence against  the  Judicial Officer and may then  harass  him  by carrying  on a prolonged investigation of the  offence  made out  by the report.  It appears to us that, though the  Code of  Criminal Procedure gives to the police unfettered  power to  investigate  all  case’s  where  they  suspect  that   a cognizable offence has been committed, in appropriate  cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Art. 9 5 2 226 of the Constitution under which, if the High Court could be  convinced  that  the power  of  investigation  has  been exercised by a police officer mala fide, the High Court  can always  issue  a  writ of mandamus  restraining  the  police officer  from misusing his legal powers.  The fact that  the Code does not contain any other provision giving power to  a Magistrate  to stop investigation by the police cannot be  a ground for holding that such a power must be read in section 159 of the Code. In theresult,  the  decision of the High Court  in  this case must be upheld,so  that  the appeal fails  and  is dismissed. Y.P.                                                  Appeal dismissed. 9 5 3