PLJ
2010 Cr.C. (
Present:
Jamal Khan Mandokhail and Ghulam
Mustafa Mengal, JJ.
JAMAL
SHAH KHILJI--Petitioner
versus
STATE--Respondent
Crl. Q.P. No. 2 of 2009, decided on 24.12.2009.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
540--Powers of Court--Held: When the trial is commenced and Court comes to
conclusion that the I.O. has not recorded statements of important witnesses,
then instead of ordering for re-investigation, the Court has powers u/S. 540, Cr.P.C. to call any person as witness, whose statement is
necessary for just and proper decision. [P.
505] B
2007 YLR 2161 & PLD 2007 SC 31, ref.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
561-A--Meaning of--Settled principle--S. 561-A, Cr.P.C.
is meant for providing substantial Justice in a case, where no provision is
available in Cr.P.C. for redressal
of grievance, thus, in view of the fact that for recording evidence of certain
witnesses, whose statements have not been recorded during investigation, are
necessary for just and proper decision of the case--Trial Court has got all the
powers to summon material witnesses or examine a person, who fulfills
requirements of being helpful for just decision of the case. [P. 506] C
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
561-A--Inherent Jurisdiction--Held: Administration order--If found arbitrary,
can be quashed by the High Court in exercise of its inherent jurisdiction u/S.
561-A Cr.P.C.--Court in exercise of its inherent
power can not diverst the normal course of trial
initiated before the Court of law, nor hamper the process of investigation, as
otherwise the same would defeat the spirit of law--Further held: Petitioner had
filed an application before Judicial Magistrate, who was acting in an
administrative capacity and had rejected the same--Petitioner has filed
criminal revision against said order--According to Section 435 Cr.P.C. the Court of Sessions may call for, and examine the
record of any proceedings before any inferior Court situated within local
limits of its Jurisdiction--Judicial Magistrate at time of passing said order,
was not performing his duties as inferior Courts or subordinate Court to Court
of Sessions Judge--Revision Petition against administrative order before
Sessions Judge was not competent--Petition dismissed. [P. 506] D, E & F
2006 PCr.LJ 518 & 1999 PCr.LJ 258, ref.
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss.
161 & 561-A--Control of Narcotic Substances Act, 1997, S. 9(C)--Quashment petition--Duty of investigator--Investigation
officer was bound to record the statement of a person--Held: It is the duty of
I.O. to collect all the material and evidence, which is necessary for just and
fair investigation of the case--Where the police officer submits his report to
Magistrate or any Court u/S. 173 Cr.P.C. Magistrate
or Court is not expected to blindly follow the investigation undertaken by the
police, as the ipsi dixit
of police is never binding on Magistrate or Court or law--If the Court feels
necessary that some important or credible material is necessary for proper
investigation and such material or evidence has not been collected, the case
can be re-investigated, even after submission of challan
and there is no ouster of jurisdiction or any legal bar in this
behalf--However, while passing an order for re-investigation, it must not be
without any justification and the same should not to be used so frequently. [P. 505] A
Mr.
Kamran Mullakhail, Advocate
for Petitioner.
Malik Zahoor Ahmed Shahwani,
PG for Respondent.
Date
of hearing: 17.11.2009.
Judgment
Jamal
Khan Mandokhail, J.--This quashment
petition has been filed against the order dated 12.06.2009 and 03.07.2009
passed by Judicial Magistrate and Special Judge, Control of Narcotic Substances
Act, 1997, respectively.
2. Briefly stated facts of the case are that the
petitioner was arrested vide FIR No. 22 of 2009 under Section 9(c) of Control
of Narcotic Substances Act, 1997. During investigation, the petitioner has
filed an application before the Judicial Magistrate-VI,
"The
Court of Judicial Magistrate can not interfere in the investigation and issue
an appropriate direction because it is not a charge of investigation. I see no
substantive law, which might have empowered the Court of Judicial Magistrate to
issue such direction to police to investigate, particularly, with reference to
Chapter No. XIV of Cr.P.C. that governs
investigation."
Against
said order, the petitioner has filed criminal revision petition before Special
Judge, CNS, who, while dismissing the same, has observed that, though the
opinion of Judicial Magistrate was not correct, but since the accused has been
shifted to judicial custody and challan of the case
has also been submitted before the Court for trial, therefore, at this stage,
no affidavit can be included, the petitioner was, however, allowed to produce
evidence before the Court, if any, thus, feeling aggrieved, the petitioner has
preferred instant petition.
3. Learned counsel for the petitioner has
submitted that though the witnesses could be called under Section 540 Cr.P.C. and can also be produced in defense by the
petitioner, but the purpose for recording statement of witnesses by I.O. will
strengthen the plea of petitioner. Furthermore, it is duty of Investigation
Officer to record statements of witnesses under Section 161 Cr.P.C.,
who are supposed to be acquainted with the facts and circumstances of the case.
According to him, since the above named persons were important witnesses, who
were fully aware about the facts and circumstances, therefore, recording of
their statements was necessary for just and proper investigation, but the I.O.
has refused to record their statements. The Judicial Magistrate had power to
order re-investigation, but he too has declined the request. He has further
submitted that though the revisional Court was not
agreed with findings of Judicial Magistrate, but the revision was dismissed for
the reasons that since the trial has been commenced,
therefore, no order for re-investigation can be made. The order of revisional Court to this extent is not legal and proper, as
such, he requested to issue directions to the
Investigation Officer to record statements of said witnesses.
4. Learned Counsel for State has vehemently
opposed the contention of petitioner and has stated that since the trial has
been commenced, therefore, the petitioner has remedy to approach the Court
under Section 540 Cr.P.C. According to him,
re-investigation would be an abuse of the process of law, thus, the order
impugned passed by Sessions Judge is just and proper.
5. We have heard learned parties' counsels and
have perused, the record, as well. Main contention of the counsel for
petitioner is that the Investigating Officer was bound to record the statement
of a person, who is aware about facts and circumstances of the case, and, if
statement of such witness is not recorded by I.O. either intentionally or due
to non-availability of the witnesses, or for the other reason at the relevant
time, then, re-investigation can either be ordered by police or by Judicial
Magistrate.
In
view of Section 161 Cr.P.C., it is the duty of I.O.
to collect all the material and evidence, which is necessary for just and fair
investigation of the case. In a situation, where the police officer submits his
report to Magistrate or any Court under Section 173 Cr.P.C.,
Magistrate or Court is not expected to blindly follow the investigation
undertaken by the police, as the ipsi dixit of police is never binding on Magistrate or Court of
law. If the Court feels necessary that some important or credible material is
necessary for proper investigation, and, such material or evidence has not been
collected, the case can be re-investigated, even after submission of challan and there is no ouster of jurisdiction or any legal
bar in this behalf. However, while passing an order for re-investigation, it
must not be without any justification and the same should not to be used so
frequently.
In
the second phase, when the trial is commenced and the Court comes to conclusion
that the I.O. has not recorded statements of important witnesses, then, instead
of ordering for re-investigation, the Court has powers under Section 540 Cr.P.C. to call any person as witness, whose statement is
necessary for just and proper decision. In a present case, trial has already
been commenced, wherein, statements of witnesses have been recorded, therefore,
at this stage, re-investigation will complicate the matter. In this behalf,
reliance has been placed on a case reported in:--
2007
YLR 2161
PLD
2007 SC 31
which is reproduce as under:--
"At
this stage, the learned Additional Advocate-General informs us that some
Additional I.-G. police had passed some order on
15.07.2006 and had changed the investigation. We are surprised at this order
passed by the Addl. I.-G. Police (Investigation Branch),
Another
aspect of the present case is that the petitioner is seeking permission for
recording statements of witnesses through I.O., because if their statements are
recorded during investigation by I.O., it will gain weight and will be helpful
for the petitioner/accused. We are not in agreement with learned counsel on the
point, because statement of witness on oath, before the Court has much more
value then the statement of witness recorded under Section 161 Cr.P.C. It is a settled principle law that Section 561-A Cr.P.C is meant for providing substantial justice in a
case, where no provision is available in Cr.P.C. for redressal of grievance, thus, in view of the fact that for
recording evidence of certain witnesses, whose statements have not been
recorded during investigation, are necessary for just and proper decision of
the case, the trial Court has got all the powers to summon material witnesses
or examine a person, who fulfills requirements of being helpful for just
decision of the case.
5. Keeping in view the above discussion,
administrative order, if found arbitrary, can be quashed by the High Court in
exercise of its inherent jurisdiction under Section 561-A Cr.P.C.,
but since trial in the case has been commenced, therefore, this Court in
exercise of its inherent power can not divert the normal course of trial
initiated before the Court of law, nor hamper the process of investigation, as
otherwise, the same would defeat the spirit of law. In this behalf, reliance
has been placed on judgement reported in:--
2006
PCRLJ 518
1999 PCRLJ 258.
Without
prejudice to the above, the petitioner had filed an application before the
Judicial Magistrate, who was acting in an administrative capacity and has
rejected the same, as such, the petitioner has filed
Criminal Revision against said order. According to Section 435 Cr.P.C, the Court of Sessions may call for, and examine the
record of any proceedings before any inferior Court situated within local
limits of its jurisdiction.
Since
the Judicial Magistrate, at the time of passing said order, was not performing
his duties as inferior Courts or
Thus,
in view of what has been stated hereinabove, the petition is dismissed.
(A.S.) Petition
dismissed.