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TMI Blog1970 (3) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... who also stabbed him with a knife and further caused injuries of 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 bad been lodged against him at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting an investigation cannot arise in a case where the report itself shows that 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been made independent of any control by the Magistrate. The High Court of Lahore in The Crown v. Mohammad Sadiq Niaz (A.I.R. 1949 Lah. 204), and the High Court of Patna in Pancham Singh v. The State (A.I. R. 1967 Patna 418) 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 (71 I.A. 203) 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 Code of Criminal Procedure to quash proceedings being taken by the police in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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