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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 ..... nvestigation 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. - Appeal No. 256 of 1969 - - - Dated:- 10-3-1970 - SIKRI, S.M., BHARGAVA, VISHISHTHA AND VAIDYIALINGAM, C.A., JJ. For the Appellant : R. K. Garg, S. C. Agarwal, D. P. Singh, V. J. Francis and S. Chakravarty,. For the Respondent : O. P. Rana, JUDGMENT: Bhargava J A first information report was lodged by one Vijay Shanker Nigam in Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 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 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 followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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