LexS. N. SHARMA versus BIPEN KUMAR TIWARI AND ORS.
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946 S. N. SHARMA A v. BIPEN KUMAR TIWARI AND ORS. March 10, 1970 [S. M. SIKRI, V. BHARGAVA & C. A. VAIDIALINGAM, JJ.] B · Code 6f Criminal Procedure, (5 of 1898), s. 159-Maiutrote-if can hold tnquiry himself, and stop police investign1ion. A first information report was lodged in respect of a crime and the appellant, who was the AJditional District Ma&istrate · (Judicial) was named therein as principal accused. The offences mentioned were coani· zable and the Police after re¥istering the case, started investigation. The appellant applied to the Judicial Magistrate for invocation of the provisions of s. 159 Cr.P.C., and for conducting preliminary enquiry by the Court itself and for issuance of nei;essary directions to the Police to stop investiaation alleging that a false report had been lodged at the instance of the local police. The Magistrate directed the police to stop investip· lion and decided to hold the enquiry himself. Thereupon an application was moved in the High Court under s. 561 A Cr.P.C. for quashing the order of the Magistrate as he had no jurisdiction to pass such an order under s. 159 Cr.P.C. The High Court accepted the application and set aside the Magistrate's order. Dismissing the appeal. this Court. HELD : Section 159 Cr.P.C. does not empower a Magistrate to stop investigation by the police. c D This section first mentions the power of the Magistrate to direct an in· E vestigation on receiving the report under s. 157, and then states the alter- native that, if he thinks fit, he may at once proceed, rJr depute any Magis- trate 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 it:self shows that investigation by the police is going on in accordance with s. 156. It is to be noticed that the second alteroative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold F 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. I 59. is primarily meant to give to the Magistrate the power of directinJ?: an investigation in cases where ,the police decides not to investie:ate the case under the proviso to s. 157 ( 1). and it is in tho·se cases that. it he thinks fit, he can choose the second alternative. Without the use of the exoression "if he thinks fit" the second aJte~nati\-e could have been held to be independent of the first; but the use of this cxpres·sion G !rnakes h plain that the oo,ver confelrred bv the second clause of this section is only an alternative to the power given by the first clause and can. therefor~. be e,,;ercised only in those cases in Whicfl the first clause is applicable. · Even in sub..s.(3) of section 156, the only po,~:er given to the Magi5- trate, who can take cognisance of an offence under section 190. is to H order an 'investiJation~ there is no mention of any power to stop an investigation by the oolice. The scheme of the·se sections. thus, clearly is that the oower of the oolice to investi~ate any cognizable offence is un~ controlled by the Magistrate, and it is only in cases where the police - • - A B s. N. SHARMA V. B. K. TIWARI (Bhargm·a, J.) 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 v. Mohammad Sadia Naiz. A.LR. 1949, Lah. 204, Pancham Singh v. The State. A.J.R. 1967 Pat. 416 and King Emperor V'. Khwaia Naziil Ahmad, 71 I.A. 203, refelrred to. (2) The 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 a~ainst anv oerson he can in aoorooriate cases always invoke the '• power of the High Court under Art. 226. Therefore, the fact that the Code docs not provide for a po~·er to a Magistrate to stop investigation by C the nolice cannot be a ~round for holding that such a powe" must be read into s. 159 of the Code. [951 Hl CRIMINAL APPELLATI! JURISDICTION : Criminal Appeal No. 256 of 1969. ' Appeal by special leave from the
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