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 1^st 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.