S N SHARMA Vs. BIPEN KUMAR TIWARI

JUDGEMENT

(1.) A first information report was lodged by one Vijay Shankar 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 to Vijay Shankar Nigam also. One of 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 had 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 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 on 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, Criminal Procedure Code, 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 Section 159, Criminal Procedure Code. 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.

(2.) 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 Section 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-section (1). Section 157 requires that, whenever such information is 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-section (1) of Section 157 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 his reasons for not fully complying with the requirements of sub-section (1) and, in addition, in cases where he decides 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:

(3.) The High Court has held that, under Section 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-section (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 further held that this Section 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 Section 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 Section 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.