iminal Appeal No256 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 section C Agarwal D P Singh V J Francis and section Chakravarty for the appellant
O P Rana for respondent No 2
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 the principal accused named in that report was section 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
PC 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 Cr
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 1561 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 section
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
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 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 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 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 furl her 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
We however feel constrained to hold that the language used in section 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 section 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 section 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 section 159 is primarily 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 section 1571 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 section
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 thesesections 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 vs Mohammad Sadiq Niaz1 and the High Court of Patna in Pancham Singh vs The State1 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 vs 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 AIR 1949 Lah 204
3 71 IA 203
2 AI 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 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 section 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
PC 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 article 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 upheldso that the appeal fails and is dismissed
YP Appeal dismissed


Summary:
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 section 159 Cr
PC 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 section 561 A Cr
PC for quashing the order of the Magistrate as he had no jurisdiction to pass such an order under section 159 Cr
The High Court accepted the application and set aside the Magistrate s order
Dismissing the appeal this Court HELD  Section 159 Cr
PC 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 section 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 investigation by the police is going on in accordance with section 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 section 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 section 1571 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 s3 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 vs Mohammad Sadia Naiz AIR 1949 Lah
204 Pancham Singh vs The State AIR 1967 Pat 416 and King Emperor vs Khwaja Nazir Ahmad 71 IA 203 referred to
2The 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
Therefore the fact that the Code does not provide fora power to a Magistrate to stop investigation by the Police cannot be a ground for holding that such a power must be read into section 159 of the Code
951 H