10/09/2022
2022 PLD Lahore 664
Section 154 Cr.P.C. ordains that when an information relating to commission of a cognizable offence is given to an officer in-charge of a police station he shall enter it in the prescribed book/ register. Thus, section 154 Cr.P.C. leaves no discretion to the police in terms of registration of FIR as the legislature has used the word “shall” which carries a mandatory connotation. It does not permit them to hold a preliminary inquiry before it to ascertain whether the information communicated to him is authentic. In contrast, as adumbrated, Rule 7 requires some actions before the FIR is lodged.
In the general law, section 155 Cr.P.C. deals with noncognizable cases. It provides that the officer in-charge of the police station shall enter the information in the book (Rozenamcha) maintained for that purpose and, without any investigation, refer the matter to the magistrate for orders. If allowed, he may exercise the same powers in respect of the investigation as are available to him in respect of a cognizable case except that he shall not make any arrest without warrant
It is by now well settled that registration of FIR is not a condition precedent for commencement of investigation.
Inasmuch as cybercrimes require some preliminary inquiry to justify prosecution of the accused as discussed above, Rule 7(4) of the Investigation Rules talks of legal opinion and prior approval of the Additional Director. It needs to be appreciated that these cannot be rendered unless the authority has some material before it. Keeping all these aspects in view, the tension between different provisions can be resolved by holding that when a complaint is received at the Cybercrime Reporting Centre the Circle In-charge may allow it to be registered for further processing and nominate an officer therefor. FIR is to be lodged only if it is found that a cognizable offence has been committed under the PECA and that too after completing the requirements of Rule 7(4) but in the case involving non-cognizable offence the Circle In-charge should seek permission of the competent court for investigation. This interpretation is in consonance with Standing Order No. 05/2020 issued by the Director General, FIA, to regulate the Every complaint is registered as an inquiry in the first instance and further steps are taken in the light of its result. Agency’s working. The PECA and the Investigation Rules constitute special law on the subject and would prevail over the general law set out in the Code.
The Code does not define the term “police authorities.” It does, however, at some places uses the expression “officer in-charge of a police station.” The first question that arises for consideration is whether the officers of the FIA can be described as police authorities in terms of section 22-A(6) Cr.P.C.
The Parliament has established FIA through the Federal Investigation Agency Act, 1974 (the “FIA Act”), for inquiry and investigation of certain offences committed in connection with matters concerning the Federal Government. Section 3 of the Act read with the Schedule thereto lists those offences and adds that it would include an attempt or conspiracy to commit any such offence and the abetment thereof. Section 4(2) stipulates that administration of the FIA shall vest in the Director General who shall have the same powers as the Inspector General of Police under the Police Act, 1861. Section 5 of the FIA Act (reproduced later in this judgment) is very significant. Section 5(1) invests the members of the Agency with all the powers that the provincial police have in relation to search, arrest of person and seizure of property and investigation of offences and states that, subject to any order of the Federal Government, they may exercise them throughout the country. Section 5(2) empowers a member of the Agency, who is not below the rank of a Sub-Inspector to exercise any of the powers of an officer incharge of a police station for the purposes of any inquiry or investigation under the Act. In this view of the matter, FIA is fully covered by the expression “the police authorities” occurring in section 22-A(6) Cr.P.C. and amenable to the jurisdiction of the Ex-officio Justice of Peace.
It is pertinent that the Investigation Rules somewhat follow the scheme of the FIA Act and the Rules of 2002 framed thereunder.
This is necessitated by the fact that the cybercrimes constitute a special class and generally some preliminary inquiry is required to ascertain the nature of offence and determine whether sufficient evidence is available to justify prosecution of the accused.
Rule 7 retains the distinction between cognizable and noncognizable offences as we have in the Code. However, it is not happily worded and appears to be incoherent. Rule 7(1) lays down that the Circle In-charge may allow registration of a complaint received under Rule 6(3) and nominate an investigation officer while Rule 7(4) enjoins that if the offence alleged in the complaint is cognizable, the Circle In-charge shall order registration of a case after seeking legal opinion and approval of the Additional Director in the Zone. On the other hand, Rule 7(5) ordains that non-cognizable offences are to be dealt with according to section 155 Cr.P.C. and permission of the competent court is necessary for their investigation.
Prevention of Elctronic Crimes Act 2016 (PECA) aims to check cybercrimes in Pakistan and provides mechanism for their investigation, prosecution, trial and international cooperation and for matters ancillary thereto. Section 29(1) of the Act stipulates that the Federal Government may establish or designate a law enforcement agency for investigation of the offences under it. Section 29(2) of the PECA enjoins that “unless otherwise provided for under this Act, the investigation agency and the authorized officer shall in all matters follow the procedure laid down in the Code [of Criminal Procedure, 1898] to the extent that it is not inconsistent with the provisions of this Act.”
Rule 3 of the Investigation Rules designates the FIA as the investigation agency in terms of section 29(1), ibid. It functions through the Cybercrime Wing under the supervision of the Director General. The Circle In-charge is the overall in-charge of each Cybercrime Reporting Centre of a Cybercrime Wing and acts as the authorized officer for the purposes of registration of a complaints and conducting their investigation. The aforesaid designation has nothing to do with the character or original remit of the FIA and does not affect its status of “police authority” and it remains the same when it is performing functions under the PECA. Resultantly, an individual can approach the Ex-officio Justice of Peace under section 22-A(6) Cr.P.C. for issuance of an appropriate direction. “Appropriate” means “suitable, acceptable or correct for the particular circumstances” function. 7and involves a quasi-judicial 8It follows that the Ex-officio Justice of Peace is not obligated to issue direction for registration of FIR in every case brought before him.
The Code does not define the term “police authorities.” It does, however, at some places uses the expression “officer in-charge of a police station.” The first question that arises for consideration is whether the officers of the FIA can be described as police authorities in terms of section 22-A(6) Cr.P.C.
The Parliament has established FIA through the Federal Investigation Agency Act, 1974 (the “FIA Act”), for inquiry and investigation of certain offences committed in connection with matters concerning the Federal Government. Section 3 of the Act read with the Schedule thereto lists those offences and adds that it would include an attempt or conspiracy to commit any such offence and the abetment thereof. Section 4(2) stipulates that administration of the FIA shall vest in the Director General who shall have the same powers as the Inspector General of Police under the Police Act, 1861. Section 5 of the FIA Act (reproduced later in this judgment) is very significant. Section 5(1) invests the members of the Agency with all the powers that the provincial police have in relation to search, arrest of person and seizure of property and investigation of offences and states that, subject to any order of the Federal Government, they may exercise them throughout the country. Section 5(2) empowers a member of the Agency, who is not below the rank of a Sub-Inspector to exercise any of the powers of an officer incharge of a police station for the purposes of any inquiry or investigation under the Act. In this view of the matter, FIA is fully covered by the expression “the police authorities” occurring in section 22-A(6) Cr.P.C. and amenable to the jurisdiction of the Ex-officio Justice of Peace.
