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TMI Blog1944 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the latter section is a cognizable one, that against the former is non-cognizable 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 Sections 154 and 156, Criminal P.C. 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 Section 409, which is also a cognizable offence and possibly also one against Section 420. Apart from this, the later report though again it condescends upon rather meagre particulars, plainly indicates an accusation of an offence against Section 409 and the offence is so described. In their Lordships' view therefore both information reports charge the accused man with cognizable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n evidence when the informant is examined if it is desired to do so. 4. 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 cognizable and if so whether the investigation based upon the information report of 30th 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. 5. 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 In this dispute arbitrators were originally appointed but their authority to act was afterwards withdrawn.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 conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 7. The next step appears to have been taken by one K.L. Gauba, a barrister who had represented Saleh in certain of the proceedings. This gentleman on 7th August 1941, made a written complaint to a District Magistrate charging the respondent with a number of crimes and amongst others referred to the charge made by Saleh and enclosed his client's affidavit of 9th June 1939, in support of his application for the dismissal of the respondent from his receivership. The District Magistrate made an order for investigation into the charges and under this order the respondent's records were seized by the police on 27th August. Thereupon the respondent petitioned the High Court on 28th August 1941, for their release and for stay of the investigation on the ground that he was a public servant within the definition of the Penal Code, and therefore under Section 197, Criminal P.C. exempt from interference by any Court without the previous sanction of the Government. A day later the Crown presented a petition to the Court of Sessions Judge, Lahore, for revision of the Magistrate's order, asking that the record might be forwarded to the High Court under Section 438 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on begun by the police on Saleh's information reports. 10. As to the first, the High Court held that the matters complained of by Mr. Gauba concerned the action of the respondent in his official capacity as Receiver and therefore that he being a public servant not removable from his office without the sanction of the local government, and having been accused of an offence as such public servant, Section 197, Criminal P.C. precluded any Court from taking cognizance of the offence without the previous sanction of the Government having power to order his removal. They accordingly dismissed the complaint and quashed the order of the District Magistrate. In that case Mr. Gauba had petitioned the Court. The prohibition contained in Section 197 is against action by any Court and in these circumstances the decision of the High Court was accepted and its order is not the subject of any appeal. The action of the police in investigating Saleh's charges is a different matter. The position in and time at which a Court is required to take cognizance of the matter has not yet been reached and the only question arising upon this part of the case or discussed before their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly, acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. 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, Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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