EMPEROR Vs. KHWAJA NAZIR AHMAD

JUDGEMENT

(1.) This appeal is brought from a judgment and order of the High Court of Judicature at Lahore dated 24th October 1941 (Criminal Revision Side). The question raised is stated, and their Lordships think correctly stated, in the case presented by the respondent to be whether the High Court had power, under S. 561A, Criminal PC, to quash all proceedings taken in pursuance of two first information reports. The complainant in each case was one S. M. Saleh: the earlier report was made on 31 August 1941, and the later on 5th September of the same year. The offence in the first is stated to be in breach of S. 420, Indian Penal Code. The facts are set out in a loose and slovenly manner and condescend on little exact detail. The result is that it is at least doubtful whether the offence should not have been described as committed in breach of S. 417 instead of section 420 : the vital difference between the two being that whereas an offence against the latter section is a cognisable one, that against the former is non-cognisable and investigation of it can only be undertaken by the police on the instructions of a Magistrate whereas in the other case the police can act on their own motion under Ss. 154 and 156, Criminal PC.

(2.) However this may be, and however the offence may be described in the report itself, their Lordships are satisfied that there can rightly be spelt out of it an offence against S. 409, which is also a cognisable offence and possibly also one against S.420. Apart from this, the later report though again it condescends upon rather meagre particulars, plainly indicates an accusation of an offence against S. 409 and the offence is so described. In their Lordships' view therefore both information reports charge the accused man with cognisable offences under which the police are entitled to inquire without a Magistrate's order. Their Lordships think it right to set out these matters because it was strenuously argued before them on behalf of the respondent that the only accusation of which account could be taken was that contained in the first of the two reports, that the offence there charged was a non-cognisable offence and therefore the police were precluded under S. 155, Criminal PC, from inquiring into it without a Magistrate's order. The argument as their Lordships understood it was that the only information report under Ss. 154 to 156, Criminal PC, was that recorded on 31 August 1941, that the allegations recorded at a later stage of 5 September were not an information report, but a statement taken in the course of an investigation under Ss. 161 and 162 of the Code, that there was therefore no reported cognisable offence into which the police were entitled to enquire, but only a non- cognisable offence which required a Magistrate's order if an investigation was to be authorized. Their Lordships cannot accede to this argument. They would point out that the respondent in his case treats each document as a separate information report and indeed, on the argument presented on his behalf, rightly so, since each discloses a separate offence, the second not being a mere amplification of the first, but the disclosure of further criminal activities. But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognisable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157, Criminal PC, when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under S. 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so.

(3.) As has already been pointed out, the respondent himself speaks of two information reports in the case presented for their Lordships' consideration. Though the High Court in their judgment discussed the question whether the only crime formally disclosed was not cognisable and if so whether the investigation based upon the information report of 30 August should not be quashed, they gave no decision on the matter, saying only that it raised a difficult point of law which they found it unnecessary to decide. They then proceeded to determine the point at issue upon other grounds which are those raised in the cases presented to their Lordships. These it is now necessary to discuss. It appears that S. M. Saleh was the son of Sheikh Rahmatullah who died in 1924 and that some time after his death disputes arose between his children including S. M. Saleh as to the partition of his property. In this dispute arbitrators were originally appointed but their authority to act was afterwards withdrawn. One of the assets was a business which had been carried on by the father and after his death was continued by the wife and children as a single partnership concern according to the respective shares in the property left by the deceased man, and in 1937 a suit was begun by Saleh against his brothers and sister for partition of the family property and for dissolution of the partnership and rendition of accounts. The respondent is the Special Official Receiver of the High Court, Lahore, and was in that capacity appointed on 17 August 1937, as Receiver in this suit. The criminal charge which the police were investigating concerns his activities in the receivership and his alleged behaviour in seeking the appointment. According to Saleh he was persuaded by the respondent by means of various fraudulent representations to undertake the suit and to ask that the respondent should be appointed Receiver of the property. If this story is true there is no doubt but that Saleh was a party to an appointment made for the purpose of overreaching his brothers and sister. At a later stage, however, Saleh became dissatisfied with the activities of the respondent as Receiver and on 27 June 1939, applied to have him removed from the receivership and supported his application by an affidavit sworn on 9 June. The grounds of the application were substantially the same as those put forward in the two information reports as criminal acts calling for a prosecution.