POLICE
HAS NO POWER TO CANCEL AN F.I.R. JUDICIAL MAGISTRATE MAY DISAGREE OR AGREE
REVISION LIES (REVIEW OF LITERATURE) (RESEARCH (ENABLING) REVIEW OF RULE 2
By:
MUHAMMAD IKRAM
LL.M. (Authority)
Associate Professor(V)
College of Law(GCUF)
149 District Courts, Faisalabad.
First
Information report is not the vocabulary of Cr.P.C. Section-154 Cr.P.C only
mentions the word information. Cancellation of an FIR and discharge of an
accused or set of accused has been a matter of judicial discussion. Judge made
law from time to time by means of Interpretation has given different versions.
In some authoritative pronouncements, order passed by Magistrate in either case
is judicial and vice versa Administrative. However vide rule-2 chapter II-D,
part-D (Cancellation of cases reported by Police). Order passed on report
submitted by the Police to the Magistrate seeking cancellation of the case is
an Administrative order (Bahedur and an other V/S the State and an other)
PLD-1985-SC-62.
Study
of the case law has clarified this idea that it is the act of interpretation by
the Honorable Judges that may make and change the nature of the order. For
example order passed by Justice of Peace was treated as an
Administrative order but through a latest judgment titled Younas
Abbas V/S Additional Sessions Judge Chakwal and others as reported in
PLD-2016-SC-581. the previous view and ratio as contained in Kizar Hayat and
others V/S Inspector General of Police Punjab, Lahore and others
(PLD-2005-Lahore-470) and Muhammad Ali V/S Additional Inspector General (PLD-2015-SC-753)
as much as it held that functions performed by Ex-Officio Justice of Peace were
Executive, Administrative or Magisterial had been disagreed by the August Supreme Court of Pakistan.
The
matter to be resolved and involved is whether the new legislations after the case law
Bahedur
and an other V/S The State and an other SC-62 permits any emergence, amendment
or omission of rule-2 of chapter II-D regarding cancellation of cases reported
by police. Review of legal literature as incorporated therein is the need of
the hour and its reliance as well.
Revisit of rule 24.7 of the police rules, 1934 is important but the resolution
of the controversy whether the order passed by the Megistrate on police report
is Adminstrative Judicial or Qausi-Judicial is more important.
Chapter
XXIV. Rule-24.7
(Unless
the investigation of a case is transferred to another police station or
district, no first information report can be cancelled without the orders of a
magistrate of the 1st class. When information or other intelligence
is recorded under section 154, Criminal Procedure Code, and, after investigation
, is found to be maliciously false or false owing to mistake of law or fact or
to be non-cognizable or matter for a civil suit, the Superintendent shall send
the first information report and any other papers on record in the case with
the final report to a magistrate having jurisdiction and being a magistrate of
the first class, for orders of cancellation. On receipt of such an order, the
officer in charge of the police station shall cancel the first information
report by drawing a red line across the page, noting the name of the magistrate
cancelling the case with number and date of order. He shall then return the
original order to the Superintendent’s office to be filed with the record of
case.
The
point involved for determination is whether at the time of dealing with police
report the Magistrate acts as a court or persona designata. The view finds
favor when the definition of court as contained in Article-2(A) of the Qanun-e-Shadat
order (10 of 1984) which is as under “Court includes all Judges and
Magistrates, and all persons, except arbitrators, legally authorized to take
evidence is taken into account.The author of this Article with optimum respect
submits that the Advocates appearing in the case titled Bahedur and an other
V/S The State and an other at the time of arguments did not bring into the
notice of the Supreme Court that the definition of Court includes all the
Judges and Magistrates. In the said judgment the word Court does not find any mention. This aspect of the matter escaped notice.
The
above view finds further support from the Punjab Criminal Prosecution Service
(Constitution, Functions and Powers) Act 2006 (Act-III of 2006). Vide
section-9, sub-section-4 the word court
has been used “A police report U/S – 173 of the code including a report of cancellation of the First Information Report or a request for Discharge of a suspect or an accused shall be submitted to a Court through the prosecutor appointed
under this Act”.
The same view also finds further and similar support from
the newly framed rules viz the Punjab Anticorruption Establishment Rules 2014
Rule-10 (Dropping of case or reference for departmental action. Vide Rule-10(I)
clause-b again the word Court has
been used with particular reference to cancellation of report. Relevant text is
an under:
(a)
On
completion of investigation, if the allegations are not established, the case
shall be dropped and intimation to the effect shall be sent to the concerned
administrative department and the Public servant; and
(b)
If
after investigation, it is found that judicial action is not warranted but reasonable
evidence is available to initiate disciplinary action against the Public
Servant, the establishment shall after the
confirmation of the cancellation
report by the concerned Court, refer
the matter to the Competent Authority for initiation of such action in
accordance with Law for the time being in force. The word confirmation in its wider sense by the Court implies act of
agreeing or disagreeing. Rule 14 of the Punjab Anti Corruption Establishment
Rules 2014 (Application of the Punjab Police Rules 1934) is to be resorted to
for the purpose of inquiry or investigation.
After going through
rule-24.7 of Police Rules 1934, it is understood that nowhere it has been laid
down or the words recommendation by the
Police regarding cancellation of case is found. The simple suggestion of
result of investigation and of placing of the file before the Magistrate is
gatherable. The load bearing point both in rule-2 as contained in chapter-II-D
and in Supreme Court verdict that the cancellation order passed by the
Magistrate is an Administrative order now needs to be reconsidered in view of new legislation and legislative
wisdom. Another point worthy of consideration is that the relied upon
judgment forming the basis of Rule 2 does not even contain the word Court as defined in Q.S.O-1984. An
academic question may arise whether the said judgment may be regarded as
Judgment Per Incurium. The researcher refrains from entering into a discussion
over this point. It has been stressed by His Lordship Amir Raza. A.Khan in the
book Code of Civil Procedure 11-Edition, the rules committee of the High Courts
should continuously review the Code which also includes rules on Criminal side.
In 2011-YLR-2587 it
has been held that every order passed by a Judicial Magistrate is to be treated
as a Judicial order. The reasoning behind it that after the separation of
Judiciary from the Executive, the term Magistrate has been defined under clause
(ma) of sub-section-1 of section-4 of the Cr.P.C 1898 inserted vide ordinance
XV-11 of 2001 w.e.f 14-08-2001 order passed by a Judicial Magistrate is revisable. A writ may also lie.
Another view as contained in 2014-YLR-113 both the act of agreeing or
disagreeing regarding cancellation report by the Police is an Administrative
act. But while dealing with cancellation report, the Learned illaqa Magistrate
when disagrees with the cancellation report and by the same order summons the accused person(s) then his first
step of disagreeing with the cancellation report (Administrative in nature)
would merge in his simultaneous order regarding summoning of the accused passed
under section-204 which is squarely a Judicial
order. Therefore due to the merger
of disagreeing order of the Magistrate into the ultimate and simultaneous
order of summoning of the accused the entire exercise by the Magistrate would
become judicial action and undoubtedly such kind of order can be assailed
through Criminal Revision.
In view of new
promulgation of Laws, Rules, legislative wisdom and Landscape, the case Law
titled Bahedur and an other V/S The State and an other PLD-1985-SC-62 after
having lost its efficacy particularly in view of section-9(4) by the use of the
vocabulary submitted to a Court and including a report of cancellation of
F.I.R. as contained in reference No.7 and rule 10(1) clause-b after the
confirmation of the cancellation report by the concerned Court vide reference No.5 and the word Court in Q.S.O permits revisit of Rule-2 of Chapter11-D of
Volume-3 relating to cancellation of cases reported by Police. Cumulative
effect hopefully of the present research is that a case of maintainability of revision in either case agreeing or disagreeing
is established or establishable.
Rules making
committee of LHC may take necessary notice of this research. It would be in
consonance with the Policy of Law advancing remedy before District and Sessions
Judge.
References:
1. (Bahedur and an other
V/S the State and an other) PLD-1985-SC-62.
2. Younas Abbas V/S
Additional Sessions Judge Chakwal and others as reported in PLD-2016-SC-581.
3. Kizar Hayat and
others V/S Inspector General of Police Punjab, Lahore and others
(PLD-2005-Lahore-470)
4. Muhammad Ali V/S
Additional Inspector General (PLD-2015-SC-753)
5. Rules 10(1) clause-b
and 14 of the Punjab Anti Corruption Establishment Rules 2014 (Application of
the Punjab Police Rules 1934).
6. Chapter XXIV.
Rule-24.7of Police Rules 1934.
7. The Punjab Criminal
Prosecution Service (Constitution, Functions and Powers) Act 2006 (Act-III of
2006).
8. Section-154 of Cr.P.C.(1898)
Consultees:-
1. Mirza Shahid Rizwan Baig
Coordinator College of Law(GCUF).
2. Mr Farroq Ahsan, DPP,
Faisalabad(Officiating).
3. Rana Naveed Anjum,
Adv, Faisalabad.
