02/07/2023
CANCELLATION OF CASE.
تفتیش مقدمہ، اخراج رپورٹ، پولیس اور علاقہ مجسٹریٹ کے اختیارات اور ذمہ داریوں کے بارے لاہور ہائیکورٹ کا انتہائی معلوماتی فیصلہ۔
Chapter XIV (sections 154 to 176) of the Code of Criminal Procedure (hereinafter referred to as the “Code” or “Cr.P.C.”) sets out the law for dealing with information relating to the commission of offences. Section 154 Cr.P.C. addresses cognizable and section 155 non-cognizable offences. Section 155(2) prohibits a police officer from investigating a noncognizable case without a Magistrate’s order while Section 156 confers extensive powers on him concerning cognizable offences. A police officer in-charge of a police station can investigate such offences even without a Magistrate’s order. Section 156(3) allows any Magistrate authorized under section 190 to order an investigation. When a cognizable offence is suspected, the officer in-charge of a police station, after sending a report to the Magistrate, has the authority under section 157 to investigate the facts and circumstances of the case and take action to track and apprehend the offender. Proviso (b) to section 157(1) gives the police officer the discretion not to investigate the matter if he considers that the evidence is insufficient to warrant an investigation. Section 158 lays down the procedure for submitting reports under section 157. Section 159 empowers a Magistrate to hold an investigation or preliminary inquiry after such report or otherwise dispose of the case in accordance with the Code. Sections 160 to 163 deal with the police’s authority to summon witnesses and examine and record their statements. Sections 165 and 166 deal with the power of police officers to conduct searches during an investigation in specified circumstances. Section 167 stipulates the procedure the police must follow if they cannot complete the investigation within 24 hours. Section 168 states that if a subordinate police officer investigates a matter, he must communicate the result to the officer in-charge of a police station. Section 169 allows a police officer investigating a crime to release an accused from custody when there is insufficient evidence against him, provided that he executes a bond to appear before a Magistrate, if and when required. Section 170 ordains the officer in-charge of a police station to send up the accused person in custody to the competent Magistrate for trial if sufficient incriminating evidence is gathered against him during the investigation under Chapter XIV. If the offence is bailable and the accused can furnish security, he should accept it for his appearance before the Magistrate. Section 172 obligates the police officer investigating a case to maintain a diary recording certain details in a specified manner. Section 173 mandates the investigation be completed without undue delay and directs the officer in-charge of the police station to submit a report to the Magistrate concerned (through the public prosecutor) within the time frame and the format prescribed by the Provincial Government.
The Code does not contain any specific provision for cancelling criminal cases.Rules 24.7 and 25.7 of the Police Rules lay down the procedure for cancelling criminal cases.
Chapter 11, Part-D of Volume III of the Lahore High Court Rules & Orders supplements the above provisions. 10. Rule 25.57 deals with closing the investigation and the final report.
It is important to note that the expression “cancellation report” does not occur in either the Code or Police Rules. Section 173 Cr.P.C. refers to “a report,” whereas Rules 24.7 and 25.57 of the Police Rules use the phrase “final report.” The High Court Rules & Orders, supra, use the same terminology. However, sections 9, 12 & 13 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, employ the wording “a report for cancellation of the first information report.” The Rule 10 of the Punjab Anti-Corruption Establishment Rules, 2014, includes the phrase “cancellation report.”
Rule 24.7 outlines the grounds and procedure for cancelling a criminal case. Except where the investigation is transferred to another police station or district (in which case Rule 25.7 applies), only the Magistrate of the Ist Class can cancel the FIR by an order. Rule 24.7 requires the S.P. to submit the cancellation report to the Magistrate. Although this Rule uses the word “shall”, which generally indicates that the provision is mandatory, we need to examine it in light of the principle laid down in Province of the Punjab through Conservator of Forest, Faisalabad, and others v. Javed Iqbal (2021 SCMR 328). The Hon’ble Supreme Court has held that the court should carefully review the statute’s scheme. The ultimate test for determining whether a provision is directory or mandatory is the legislature’s intent, not the language used to express that intent. The object and purpose of enacting the provision provide a strong and clear indicator of that intent. Therefore, the court should consider the phraseology of the provision and its nature, the object, and the consequences of construing it one way or the other. A crucial factor is whether non-compliance with a specific provision causes inconvenience or injustice. If it does, the court will hold that the provision is mandatory.
Investigation is a vital component of the criminal justice system and the rule of law. The police must unearth the truth, collect all available evidence on indictable conduct and locate the person suspected of a violation. The purpose of Rule 24.7 for requiring the S.P. to submit the cancellation report to the Magistrate is to provide a mechanism for checking genuine lapses and misconduct on the part of the investigating officer. Since the case closes when the Magistrate concurs with the cancellation report, that oversight is critical. Rule 24.8 obligates the S.P. to keep a register of cognizable offences in the prescribed form and discharge various tasks in connection therewith. All these factors when considered in conjunction with the language of Rule 24.7 clearly show that it is mandatory.
At this juncture, it is necessary to refer to the Punjab Police Order (Amendment) Act, 2013, which introduced various amendments to the Police Order, 2002. The newly-added Article 18(10) stipulates that “a supervisory officer not below the rank of a Deputy Superintendent of Police may verify the correctness of the investigation and accuracy of conclusions of an investigation by writing a case diary before submission of report in the court.” The term “verify” has not been defined in the Police Order so we look at its dictionary meaning in the first instance. According to P. Ramanatha Aiyar’s Advanced Law Lexicon Dictionary (4th Edition, Vol.4), “verify” means “to assent or approve to be true; to ascertain, confirm or test the truth or accuracy of. In Words and Phrases (Permanent Edition, Volume 44, p.251), the word “verify” is defined as “confirm or substantiate by oath and also to check or test accuracy or exactness of or to confirm or establish authenticity of”. Similarly, the Concise Oxford Dictionary defines “verification” as “the process or an instance of establishing the truth or validity of something, or to verify truth or correctness by examination or demonstration.”
The complainant/informant in a criminal case does not fade away after the FIR is registered. He is deeply concerned about the response of the officer in-charge of the police station to the FIR. Section 157(2) requires the officer in-charge of a police station to notify the complainant if, despite the FIR, he decides not to investigate the case on the ground there is insufficient evidence to warrant an investigation. Section 173 directs the officer in-charge of a police station to complete the investigation without undue delay and to forward a report (through the Public Prosecutor) to the Magistrate competent to take cognizance of the offence, while also communicating his action on the FIR to the complainant. The rationale behind this provision is that the person who starts the investigation machinery in motion by filing FIR must know the outcome of the investigation. The complainant is also keenly interested in the result of the investigation because if the case is false, he may face prosecution under section 182 PPC and civil litigation.
In view of the above, the complainant of FIR has a right to know the progress of the case unless the authorities have a legitimate reason to keep the information confidential. If they go for its cancellation, he has the right to be informed and heard by the Magistrate. The complainant derives these rights under Article 4 and Article 10A of the Constitution, which includes the concept of procedural fairness. Whether a cancellation report constitutes an adverse order or not is irrelevant.
This opinion has primarily focused on the rights of a complainant of FIR in relation to its cancellation because one such person has filed this petition. Procedural fairness implies equity for all. Hence, I must emphasize that the accused also has a right to be heard before the Magistrate when he decides on the cancellation report.
It is the sacred duty of the Magistrate to protect the people’s rights. He must apply his mind to the facts and circumstances of the case while deciding on the cancellation report. He must be honest, fair, and just to both the accused and the prosecution. To that end, he must inter alia consider the following factors: (a) the nature of the allegations against the accused, (b) the evidence collected, and (c) the accused’s defence plea and any evidence presented in support thereof. Besides, the Magistrate should thoroughly examine the police diaries and document his reasoning. In this case, it is disappointing that the Judicial Magistrate treated the cancellation report casually and nonchalantly. The Impugned Order is bereft of reasoning and does not reflect due application of the mind.
Writ Petition No. 21725/2021
Madiha Ammad Vs. The State etc.
