Ss. 22‑A(6), 156(3) & 200‑‑‑Maintainability‑‑Refusal of Police to register F.I.R.
Remedy‑‑‑Sessions Judge as Ex Officio Justice of Peace and Magistrate in exercise of powers conferred upon them under Ss.22‑A(6) & 156(3), Cr.P.C. respectively could direct police to register F.I.R. on receipt of complaint that Police had refused to register F.I.R.
On receipt of complaints the Sessions Judges as ex officio Justice of the Peace and Magistrates in exercise of the powers conferred upon them under sections 22(A) (6) and 156(3), Cr.P.C., respectively can direct the police to register the F.I.R. In the present petitions, also, the same directions, if any, could be issued to the police.
Complainant also could file direct complaint under S.200, Cr. P. C.
Such alternate adequate remedies being available to the petitioner, provisions of Art. 199 of Constitution of Pakistan (1973) could not be invoked.
2003 Y L R 1316
[Karachi]
Before Rahmat Hussain Jafferi, J
MOULA BUX alias MOULEDINO‑‑‑Petitioner
Versus
S.H.O. POLICE STATION HATRI GHULAM SHAH and 2 others‑‑Respondents
Civil Petitions Nos.S‑473, 491, 494, 508, 509, 512, 513, 534, 535, 542, 543, 544, 546, 547 and 549 of 2002, decided on 6th February, 2003.
(a) Constitution of Pakistan (1973)‑‑‑
Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑If an adequate remedy was available under relevant law then jurisdiction of High Court as provided under Art. 199 of the Constitution could not be invoked.
(b) Criminal Procedure Code (V of 1898)‑‑‑
S. 154‑‑‑Penal Code, (XLV of 1860), S.166‑‑‑Information to Police in cognizable cases‑‑‑Provisions of S.154, Cr. P. C. were mandatory in nature which directed that the Police Officer should register F.I.R. and such officer violated said direction, he would expose himself to prosecution under S.166, P.P.C.
Mazher Hussain v. Zafar PLD 2001 Kar. 269 ref.
(c) Criminal Procedure Code (V of 1898)‑‑‑
S.200‑‑‑Lodging of direct complaint‑‑‑If a direct complaint was lodged before the, Magistrate under S. 200, Cr. P. C. than under subsection (1) of S.202, Cr.P.C., Magistrate was empowered to direct the Police to investigate the case and in such event the Investigating Officer of Police was authorized to exercise all powers available to him in the Criminal Procedure Code for investigating the case including the power to arrest the accused persons.
Mrs. Ghanwa Bhutto v. The Government of Sindh PLD 1977 Kar.119 and Inayat‑ur‑Rehman v. Assistant Commissioner PLD 1992 Pesh. 138 ref.
(d) Criminal Procedure Code (V of 1898)‑‑‑
S.22‑A(6) [as amended by Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]‑‑‑Sessions Judge as an Ex Officio Justice of Peace‑‑‑Power to issue appropriate directions to Police Authorities‑‑‑After insertion of subsection (6) to S.22‑A, Cr. P. C. a Sessions Judge who was an Ex Officio Justice of Peace, could issue appropriate directions to the Police Authorities concerned on the complaint of non‑registration of F.I.R., by directing them to register F.I.R. if cognizable offence was found to have been committed.
(e) Criminal Procedure Code (V of 1898)‑‑‑
Ss.22‑A(6), 154, 156(3) & 200‑‑‑Refusal of Police to register F.I.R.‑‑‑Remedy‑‑‑If Police would refuse to register F.I.R. then aggrieved party would have adequate remedy; either by approaching Sessions Judge who was Ex Officio Justice of Peace for exercise of powers under S. 22‑A (6), Cr. P C., or by approaching the Magistrate for exercise of power under S.156(3), Cr.P.C. or by filing a direct complaint under S. 200, Cr. P. C.
(f) Constitution of Pakistan (1973)‑‑‑
Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss. 22‑A(6), 156(3) & 200‑‑Constitutional petition‑‑‑Maintainability‑‑Refusal of Police to register F.I.R.‑‑Remedy‑‑‑Sessions Judge as Ex Officio Justice of Peace and Magistrate in exercise of powers conferred upon them under Ss.22‑A(6) & 156(3), Cr.P.C. respectively could direct police to register F.I.R. on receipt of complaint that Police had refused to register F.I.R.‑‑‑Complainant also could file direct complaint under S.200, Cr. P. C.‑‑‑Such alternate adequate remedies being available to the petitioner, provisions of Art. 199 of Constitution of Pakistan (1973) could not be invoked.
Date of hearing: 21st January, 2003.
ORDER
This order will dispose of the above petitions as common questions of facts and law are involved.
The above petitions have been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution of 1973) with a common prayer that police may be directed to register the F.I.R. It is alleged in all the petitions that the petitioners had approached the S.H.O. of their respective Police Stations for registration of F.I.Rs. as cognizable offences were committed but the police refused to register the same.
I have heard the advocates for the petitioners, Advocate‑General, Sindh and perused the record and law involved in the matter very carefully.
Mr. Ali Nawaz Ghanghro, Advocate for one‑ of the petitioners has argued that under section 154, Cr.P.C. the police is duty bound to register the F.I.R. If cognizable offence is committed because it is a mandatory provision and the police have no option except to register the F.I.R.; that adequate remedy, which means, efficacious, convenient, beneficial and effective and speedy remedy is riot available under the law therefore, petitions have been filed. He has further argued that in, some cases direct complaint before the Magistrate under section 200, Cr.P.C. has been found to be adequate remedy but it cannot be compared with the registration of F.I.R. because recovery of the articles from the place of the incident or other related matters which are required in proof of the case as a corroborative and circumstantial pieces of evidence cannot be collected or examined before the Court which can only be collected by the police during the course of the investigation; that under the direct complaint the Magistrate is empowered to hold enquiry but he cannot make investigation in the matter as enquiry and investigation are two different subjects. He has further argued that under sections 22‑A and 22‑B, Cr.P.C. the Sessions Judge being an ex officio justice of peace is not empowered to direct the police to register the F.I.R. as the said provisions deal with only the exercise of powers by the Sessions Judge as are exercisable by a police officer under section 54, Cr.P.C. and for holding enquiry in respect of any incident involving the breach of peace or commission of any offence within their local areas and then report the result of such enquiry to the nearest Magistrate and to Officer Incharge of nearest Police Station. But even then power of directing the police to register the F.I.R. has not been given to the ex officio justices of peace. He has further argued that enquiries conducted by justice of peace as required under section 22‑A are against the spirit of section 154, Cr.P.C.; that the S.H.O. who was required to register the F.I.R.: has failed to exercise his duties therefore, the police may be directed to register the F.I.R by exercising powers under Article 199 of the Constitution of 1973. Mr. Ghanghro, in support of his contentions has relied upon the following authorities:‑‑
(1) Muhammad Naseem Khan v. Government 1990 CLC 1693.
(2) Gaman v. S.H.O., Datar Dino, Police Station New Faujdari, Shikarpur 1993 PCr. LJ 1286.
(3) Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119.
(4) Jamshed Khan v. Government of Sindh 1999 PCr.LJ 512:
(5) Mst. Malka Jan v. Inspector‑General of Police, N.‑W.F.P., Peshawar 2000 PCr.LJ 320.
(6) Mazhar Hussain Naqvi v. Zafar PLD 2001 Karachi 269.
(7) Ghulam Muhammad Shalgiri v. S.H.O., Shahdadkot 2002 MLD 1898.
The other advocates for the petitioners have adopted the arguments of Mr. Ghanghro except Mr Azizullah Buriro. He has argued that under sections 22‑A(6) and 156(3), Cr.P.C., the Sessions Judge in the capacity of ex officio justice of peace and Magistrate' respectively have jurisdiction to direct the police to register the F.I.R., therefore, the petitioners have adequate remedy within the meaning of Article 199(1) of Constitution of 1973.
On the other hand Mr. Anwar Mansoor Khan learned Advocate‑General, Sindh has stated that while exercising the powers granted to the Court under Article 199 of the Constitution of 1973 the Court has to look into two aspects, firstly the satisfaction of the Court that no other adequate remedy, is provided by law and that too subject to the Constitution as required under Article 199(1) of the Constitution of 1973. Secondly that if law permits any public functionaries to act or perform any function and if they failed to do so then they can be directed to perform the said functions in accordance with the law but that can be granted only on the satisfaction of the High Court on the fulfilment of conditions mentioned in Article 199(1) of the Constitution of 1973. He has further argued that section 154, Cr.P.C. is mandatory provision of law under which the police is required to register the F.I.R. if cognizable offence is made out from the oral or written complaint submitted to the said officer, that if any statute provides other, provisions on the same subject and if one provision of law is not applied then other provisions can be invoked: He has further argued that apart from section 154, Cr.P.C. other provisions are also available in Cr.P.C, and if the public functionaries failed to exercise powers under section 154, Cr.P.C. then the provisions of sections 200 and 156(3), Cr.P.C. can be invoked to redress the grievances as such the adequate remedy as contemplated by Article 199(1) of the Constitution of 1973 are available. He has emphasised that under section 202, Cr.P.C. the Magistrate can order the police to investigate the case and on such investigation the grievance of the petitioner of collecting the required evidence through investigation of the case by the police would be achieved through this manner. He has further argued that the prayer of the petitioners in the petitions are that the police may be directed to register the F.I.R. but the said directions can be given by the Sessions Judge in exercise of powers conferred upon them by amended subsection (6) of section 22‑A of Cr.P.C. in the capacity of ex officio justice of peace; that the similar direction can also be issued by the Magistrate under section 156(3), Cr.P.C. therefore, adequate remedy with similar directions can be issued under the above mentioned provisions of Cr.P.C. by the Sessions Judge and Magistrate. Therefore, the Constitutional petitions are not maintainable.
I have given due consideration to the arguments and have gone through the relevant provisions of Constitution of 1973 and the authorities quoted from both the sides.
The relevant portion of Article 199(1) Constitution of 1973 reads as under:‑‑
199. Jurisdiction of High Court.‑‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law‑‑
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do any thing he is required by law to do; or
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect;
A perusal of Article 199(i), Constitution of 1973 shows that the said jurisdiction can be exercised, if the High p Court is satisfied that no other adequate remedy is provided by law but if the other adequate remedy is provided under the relevant law then the above provisions cannot be invoked.
The Article 199 of Constitution of 1973 has been examined by the Hon'ble Supreme Court in a case of Chief Administrator of Okaf v. Muhammad Ramzan (PLD 1994 SC 102) and at page 114 it has been observed as under:‑‑
"-------------Article 199 of the Constitution provides that the same cannot be invoiced if alternate remedy is available to the aggrieved party under the relevant law."
In a case of Abdul Rehman v. Meer Ahmed PLD 1987 SC 21 with reference to Article 199 of constitution of 1973, it has been observed at page 23 as under:‑‑
"It could be exercised only on proof of non‑availability of adequate remedy. "
It has also been held in the case of Allah Bux v. Muhammad Ismail (1987 SCMR 810) and at page 811 it has been observed as under:‑‑
"It is to be noticed that the petitioners had a remedy before the Board of Revenue they did not avail of it within a prescribed time. This itself was sufficient ground for the dismissal of the Constitutional petition tiled by them in the High Court."
Thus it is clear that if an adequate remedy is available under the relevant law then the jurisdiction as provided under section 199 of the Constitution of 1973 cannot be invoked.
The next point for consideration is as to what is adequate remedy. This point has been dealt with by the Hon'ble Supreme Court of Pakistan in a case of Anjuman‑eAhmadiya, Sargodha v. The Deputy Commissioner, Sargodha (PLD 1966 SC 639). A relevant portion of judgment at page 645 is reproduced:
"It is pointed out that what was asked for was a relief by way of a direction to the appropriate authority in the nature of a writ of mandamus to do that which it is required by law to do after declaring that its act of purported cancellation was without lawful authority. So far as these writs are concerned it is now settled law that to disentitle a person from such an extraordinary relief the alternative remedy available must be a remedy in law, that is a remedium juris and one which is not less convenient, beneficial and effective if what is sought to be enforced by such an extraordinary remedy is "a legal right to the performance of a legal duty" of a public nature.
The only exceptions to this rule, as stated in Halsbury's Laws of England, 3rd Edition, Volume II, page 108 are‑‑
(i) that the Court will not interfere to enforce the law of the land by the extraordinary remedy of mandamus in cases where an action at law will lie for complete satisfaction, and
(ii) that in accordance with the general Rule that where a statute creates an obligation and enforces its performance in a specified manner, the performance cannot be enforced in any other manner, the remedy by mandamus will not be available when a specific remedy is given by the Act imposing the duty it is sought to enforce.
It is axiomatic that in the case of a relief of this nature the foundation for the application must be a failure to perform some public duty but even after this is established the Courts still have a discretion in the matter and one of the guiding principles laid down by the Courts in England for the exercise of this discretion is that the 'Court 'will render it as far as it can the suppletory means of substantial justice in very case where there is no other specific legal remedy for a legal right.' Rex v. Archbishop of Canterbury 15 East 117 at 136. "
Keeping in view the above principle of law I will examine as to whether the adequate remedy as defined in the Anjaman‑e-Ahmadiya (supra) is available in the Criminal Procedure Code or not.
A filing of direct complaint under section 220, Cr.P.C. has been found to be an adequate remedy in a case of Mrs. Ghanwa Bhutto v. The Government of Sindh PLD 1977 Kar.119. In this authority various authorities of High Courts and Hon'ble Supreme Court were considered and then it was held that the direct complaint under section 200, Cr.P.C. is an adequate remedy, within the meaning of Article 199 of the Constitution of 1973.
A great emphasis has been led upon the case of Mazher Hussain v. Zafar PLD 2001 Karachi 269 by Mr. Ghanghro in which it was held that section 154, Cr.P.C. is mandatory provision and the police officer cannot refuse to register the F.I.R. I am in respectful agreement with the said authority as I have already observed that the provisions of section 154, Cr.P.C. are mandatory but will further add that it is the direction of law provided in the shape of 154, Cr.P.C. that the police officer should register the F.I.R. and if such officer violates the said direction then he will be exposing himself for prosecution under section 166, P.P.C. (Public servant disobeying direction of law, with intent to cause injury to any person). The said decision was based after considering the various authorities of High Courts and Hon'ble Supreme Court of Pakistan. But the question with regard to adequate remedy as contemplated by Article 199 of Constitution of 1973 was not considered in it.
It is pointed out that if a direct complaint is lodged before the Magistrate under section 220, Cr.P.C. then under subsection (1) of section 202, Cr. P. C. the Magistrate is empowered to direct the police to investigate the case and in such case the Investigating Officer of Police is authorized to exercise all powers for Criminal Procedure Code available to him for investigating the case including the power to arrest the accused persons (Inayat‑ur‑Rehman v. Assistant Commissioner PLD 1992 Pehsawar 138) as such the apprehension of the petitioners that evidence of recovery as circumstantial evidence could not be collected, lost or destroyed is unfounded.
In spite of authority of Ghanwa Bhutto (supra) the Constitutional petitions were being filed and in some cases the petitions were dismissed on the ground that provisions of Article 199 of Constitution of 1973 cannot be invoked as direct complaint was adequate remedy but in some cases the directions were issued to the concerned police for registration of F.I.R. as clear from some of the authorities quoted by Mr. Ghanghro.
A Single Bench of this Court in a case of Muhammad Yousuf v. Madad Ali PLD 2002 Karachi 328 examined sections 22‑A and 22‑B, Cr.P.C. and formed an opinion that the Sessions Judge in the capacity of ex officio justice of peace has power to issue direction to the police for registration of the F.I.R. After the said decision the petitions were presented before Sessions Courts for issuing the required directions to the police but in some cases the Sessions Judge took a view that they had no power under sections 22‑A & 22‑B, Cr.P.C. for issuing such direction and observed that the High Court in the exercise of power under section 561‑A, Cr.P.C. read with sections 22‑A and 22‑B had such powers. The orders of the Sessions Judges have been produced in Civil Petitions Nos.S‑491 and S‑494 of 2002.
Thereafter again the petitions were filed before this Court for issuance of directions to the S.H.O. for registration of F.I.R. a Single Bench of this Court in a case of Muhammad Ali v. S.H.O., Police Station Aziz Bhatti reported in SBLR 2002 p.1490 examined the provisions of section 156(3), Cr.P.C. and after relying upon various Indian and Pakistan authorities and the authority of Hon'ble Supreme Court of Pakistan reported in 1979 SCMR 112 in which the Hon'ble Supreme Court found that the order, of the Magistrate directing the police to register the F.I.R. and investigate the case, was found to have been passed under section 156(3), Cr.P.C., observed at page 1498 as under:‑‑
"The prayer in the petition is that the police may be directed to register the F. I. R. but the same powers can be exercised by the Magistrate under section 156(3), Cr.P.C. more expeditiously than through the present petition because as soon as the complaint is received by the Magistrate whose Court is situated near the scene of the incident or the residence of the complaint, would immediately pass the orders as deemed fit to him either adopting the course of Chapter XVI or Chapter XLV of Cr.P.C. As such the adequate and more efficacious remedy is available in the case hence the present petition is dismissed accordingly. The petitioner may approach the Magistrate having jurisdiction in the matter if so advised."
It is further pointed out that before the decision of in the case Muhammad Ali (supra) a Division Bench of Lahore High Court had examined the same point in a case of Hazoor Bux v. S.S.P. reported in PLD 1999 Lahore page 417. In that case also the provisions of section 156(3) was examined and after relying upon the decisions of Pakistan Supreme Court, High Courts and Indian Supreme Court and High Courts formed the same view that under section 156(3), Cr.P.C. the Magistrate is competent to direct the police to register the F.I.R. and investigate the case. The learned Judges of the Bench had also found that a direct complaint was also adequate remedy. A detailed and valuable discussion has been undertaken in this case on the above provisions of law.
It is pertinent to mention that after the decision in the case of Muhammad Yousuf (supra) section 22‑A, Cr.P.C. has been amended through Ordinance No. CXXXI of 2002, dated 21‑11‑2002 by adding subsection (6) in it which reads as under:‑‑
"(6) An ex officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:‑‑
(i) non‑registration of a criminal case;
(ii) transfer of investigation from one police officer to another, and
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
Thus after the insertion of subsection (6) to section 22‑A, Cr.P.C. Sessions Judge who is an ex officio of Justice of the Peace can issue appropriate directions to the police authorities concerned on the complaint of non‑registration of F.I.R. by directing them to register the F.I.R. if cognizable offence is found to have been committed.
From the above position it is clear that if the police refuses to register the F.I.R. then the aggrieved party has the following adequate remedy under the Criminal Procedure Code:
(1) By approaching the Sessions Judge, ex officio Justice of Peace for exercise of powers under section 22‑(A) (6), 1 Cr.P.C.
(2) By approaching the Magistrate for exercise of power under section 156(3), Cr.P.C. of Chapter XIV, Cr.P.C.
(3) By filing a direct complaint under, section 200, Cr.P.C. of Chapter XVI, Cr.P.C.
Thus on receipt of complaints the Sessions Judges as ex officio Justices of the Peace and Magistrates in exercise of the powers conferred upon them under sections 22(A) (6) and 156(3), Cr.P.C., respectively can direct the police to register the F.I.R. In the present petitions, also, the same directions, if any, could be issued to the police.
In view of above position adequate remedy as defined in the case for Anjaman‑eAhmadiya (supra) within the meaning o Article 199 (1) of Constitution of 1973 is available to the petitioners therefore, the provisions of Article 199 cannot be invoked in the present circumstances of the petitions. Consequently all the petitions are dismissed. The petitioners are directed to adopt any one of the above mentioned modes to redress the grievances, if so advised. Petitions dismissed.