# Waseem Haider v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-14
- **Case number:** Misc. Bench No. 24492 of 2020
- **Bench:** Ramesh Sinha, Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waseem-haider-v-state-of-u-p-ors-46111
- **Pages:** 17

## Headnote

(A) Criminal Law- Code of Criminal
Procedure,1973 - Section 154, 156, 190,
200 -ractice & Procedure - Alternative
remedies to FIR - Writ of mandamus to
compel the police to perform its statutory
duty under Section 154 Cr.P.C. can be denied
to the informant/victim for non-availing of
alternative remedy under Sections 154(3),
156(3), 190 and 200 Cr.P.C., unless the four
exceptions enumerated in the decision of the
Apex
Court
in
the
case
of
Whirlpool
Corporation Vs Registrar of Trade Marks
(1998) 8 SCC 1, come to rescue of the
informant/victim. .(Para 45)

The verdict of Apex Court in the case of Lalita
Kumari Vs Government of U.P. & Ors. (2014)
2 SCC 1 does not pertain to issue of
entitlement
to
writ
of
mandamus
for
compelling the police to perform statutory
duty under Section 154 Cr.P.C. without
availing alternative remedy under Section
154(3), 156(3), 190 and 200 Cr.P.C. .(Para
45)

The informant/victim after furnishing first
information regarding cognizable offence
does not become functus officio for seeking
writ of mandamus for compelling the police
authorities to perform their statutory duty
under Section 154 Cr.P.C. in the case the FIR
is not lodged. (Para 45)

The proposed accused against whom First
information of commission of cognizable
offence is made, is not a necessary party to
be impleaded in a petition under Article 226
of the Constitution of India seeking issuance
of writ of mandamus to compel the police to
perform their statutory duty under Section
154 Cr.P.C.(Para 45)

(B) Writs - Constitution of India - The
power to issue writ of mandamus has its own
well defined self-imposed limitations, one of
which is availability of alternative efficacious
remedy on the basis of which the Writ Court
can deny issuance of the said writ. (Para 17)

Writ Petition Rejected. (E-8)

List of Cases cited :-

## Text

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618 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A618
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE CHANDRA DHARI SINGH, J.

Misc. Bench No. 24492 of 2020

Waseem Haider ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Muballi Gussalam

Counsel for the Respondents:
G.A.

(A) Criminal Law- Code of Criminal
Procedure,1973 - Section 154, 156, 190,
200 -ractice & Procedure - Alternative
remedies to FIR - Writ of mandamus to
compel the police to perform its statutory
duty under Section 154 Cr.P.C. can be denied
to the informant/victim for non-availing of
alternative remedy under Sections 154(3),
156(3), 190 and 200 Cr.P.C., unless the four
exceptions enumerated in the decision of the
Apex
Court
in
the
case
of
Whirlpool
Corporation Vs Registrar of Trade Marks
(1998) 8 SCC 1, come to rescue of the
informant/victim. .(Para 45)

The verdict of Apex Court in the case of Lalita
Kumari Vs Government of U.P. & Ors. (2014)
2 SCC 1 does not pertain to issue of
entitlement
to
writ
of
mandamus
for
compelling the police to perform statutory
duty under Section 154 Cr.P.C. without
availing alternative remedy under Section
154(3), 156(3), 190 and 200 Cr.P.C. .(Para
45)

The informant/victim after furnishing first
information regarding cognizable offence
does not become functus officio for seeking
writ of mandamus for compelling the police
authorities to perform their statutory duty
under Section 154 Cr.P.C. in the case the FIR
is not lodged. (Para 45)

The proposed accused against whom First
information of commission of cognizable
offence is made, is not a necessary party to
be impleaded in a petition under Article 226
of the Constitution of India seeking issuance
of writ of mandamus to compel the police to
perform their statutory duty under Section
154 Cr.P.C.(Para 45)

(B) Writs - Constitution of India - The
power to issue writ of mandamus has its own
well defined self-imposed limitations, one of
which is availability of alternative efficacious
remedy on the basis of which the Writ Court
can deny issuance of the said writ. (Para 17)

Writ Petition Rejected. (E-8)

List of Cases cited :-

1. Lalita Kumari Vs Govt. of U.P. & ors. (2014)
2 SCC 1

2. Whirlpool Corporation Vs Registrar of Trade
Marks (1998) 8 SCC 1

3. Abhinandan Jha Vs Dinesh Mishra (1967) 3
SCR 668

4. H.N. Rishbud & Inder Singh Vs St. of Delhi
(1955) 1 SCR 1150

5. Sevi Vs St. of T.N. 1981 Supp SCC 43

6. Sakiri Vasu Vs State of U.P. & ors. (2008) 2
SCC 409

7. Aleque Padamsee & ors. Vs U.O.I. & ors.
(2007) 6 SCC 171

8. Sudhir Bhaskar Rao Tambe Vs Hemant
Yashwant Dhage & ors. (2016) 6 SCC 277

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. This writ petition has been filed by
the petitioner Waseem Haider seeking
1 All. Waseem Haider Vs. State of U.P. & Ors.
619
mandamus commanding the respondents
no. 2 & 3 to make direction to respondent
no.4
for
registration
of
the
First
Information Report on the application of
the petitioner.

2. Learned counsel for the petitioner
has submitted that original owner of land
Khasra Nos. 1120Ka, 1097, 2067, 1120Ka,
1121, 1122Ka, 1138, 2151Gha, 2245Ga
and 1120 situated at Village Katui
Paragana and Tehsil Akbarpur, District
Ambedkar Nagar, Old District Faizabad
was Shri Ambad Mehndi, who executed
Theekanama in favour of his chief
executive Quari Sayed Akhtar Husain
alongwith some conditions. It is submitted
that he did not transfer his title, and only
the right to use the aforesaid land was
given. It is also submitted that the aforesaid
gata numbers are new gata numbers and in
the deed of Theekanama, old numbers have
been mentioned.

3. Learned counsel has submitted
that Late Syed Ahmad Mehdi was
Tallukdar of Peerpur Estate and after his
death his only daughter Smt. Huma
Husain inherited the said property by way
of succession. The petitioner is attorney
holder of Smt. Huma Husain and
managing the affairs of Smt. Huma
Husain.

4. It is submitted that when the
petitioner came to know about the forged
and fraudulent sale deed which was
executed by Shri Jagdish Mishra in
favour of several persons through six sale
deeds on 29.01.2020, the petitioner
moved application for registration of First
Information Report to opposite party no.4
on 27.06.2020, but opposite party no.4
did not register the said F.I.R.

5. He has submitted that the petitioner
approached
opposite
party
no.3
i.e.
Superintendent of Police, Ambedkar Nagar
and
submitted
application
through
registered post dated 10.07.2020 for
registration of F.I.R., but nothing has been
done by the said authority.

6. Learned counsel has further
submitted that when the report of the
petitioner was not lodged by opposite party
no.4 and no direction was given by
opposite party no.3 to opposite party no.4
then the petitioner approached opposite
party no.2 i.e. Director General of Police,
U.P., Lucknow and moved an application
through E-mail on 04.12.2020, but again
nothing was done by the police authorities.

7. Learned counsel for the petitioner
has relied upon the judgment of Hon'ble the
Apex Court in the case of Lalita Kumari
vs. Government of U.P. and others; (2014)
2 SCC 1 and submitted that upon receipt of
information by a police officer in-charge of
a police station disclosing a cognizable
offence, it is imperative for him to register
a case under Section 154 of the Code.

8. Learned AGA has opposed the
prayer as made in the present writ petition
and
raised
a
preliminary
objection
regarding maintainability of the writ
petition and states that if the petitioner is
aggrieved by the fact that his first
information report is not being registered,
he has an alternative remedy to approach
the Magistrate concerned under section
156(3) Cr.P.C. Learned AGA has also
vehemently
submitted
that
proposed
accused has not been made a party, which
is necessary for proper adjudication of this
case. Therefore, the writ petition may be
dismissed merely on this ground itself.
620 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Heard Mohd. Muballi Gussalam,
learned counsel for the petitioner, Sri J. S.
Tomar, learned A.G.A. for the State and
perused the record.

10. The core issue raised herein is
whether a writ of mandamus can be issued
under Article 226 of the Constitution of
India directing the police to register an
offence under Section 154(1) Cr.P.C. in a
petition raising grievance that despite
informing the police about the commission
of cognizable offence, no FIR is lodged.

11. In some cases the writ Court has
directed the police authorities to perform their
statutory duty under Section 154 Cr.P.C by
following the law laid down by the Apex Court
in the Constitution Bench decision of Lalita
Kumari (supra). The State has taken serious
objection and submitted that the Writ Court
should have declined issuance of writ of
mandamus for the reason of availability of
statutory remedy under Section 154(3), 156(3),
190 and 200 Cr.P.C.

12. The core issue mentioned above in
fact involves a number of principal and
peripheral issues, which are as under :-

Principal Issues :-

(i) Whether in the face of remedies under
Sections 154(3), 156(3), 190 & 200 Cr.P.C.,
writ of mandamus can be issued to police
authorities to perform their statutory duty under
Sections
154(1)
Cr.P.C.
in
a
petition
complaining non-registration of FIR despite
furnishing first information of commission of
cognizable offence?

(ii) Whether the Constitution Bench
decision of the Apex Court in Lalita Kumari
(supra) is an answer to the above said principal
issue No.1?

Peripheral Issues :-

(i) Can relief of writ of mandamus be
denied to the informant merely on the
ground that the informant is not an
aggrieved person or victim and whether
such person becomes functus officio after
informing the police of commission of
cognizable offence?

(ii) Whether the proposed accused is
required to be heard before writ of
mandamus can be issued in a petition
complaining failure of police authorities to
register offence despite being informed of
commission of cognizable offence?

13. Before embarking upon the
process of adjudication it would be
appropriate to reproduce the relevant
statutory provisions which have bearing on
the issued involved herein. Section 154,
Section 156, Section 190 and Section 200
of the Cr.P.C. are reproduced in seriatim
for convenience and ready reference :-

"Section
154.
Information
in
cognizable cases. - (1) Every information
relating to the commission of a cognizable
offence, if given orally to an officer in
charge of a police station, shall be reduced
to writing by him or under his direction,
and be read Over to the informant; and
every such information, whether given in
writing or reduced to writing as aforesaid,
shall be signed by the person giving it, and
the substance thereof shall be entered in a
book to be kept by such officer in such form
as the State Government may prescribe in
this behalf.

(2) A copy of the information as
recorded under sub- section (1) shall be
given forthwith, free of cost, to the
informant.

(3) Any person aggrieved by a refusal
on the part of an officer in charge of a
police station to record the information
referred to in subsection (1) may send the
1 All. Waseem Haider Vs. State of U.P. & Ors.
621
substance of such information, in writing
and by post, to the Superintendent of Police
concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate
the case himself or direct an investigation
to
be made
by any police
officer
subordinate to him, in the manner provided
by this Code, and such officer shall have all
the powers of an officer in charge of the
police station in relation to that offence.

Section 156. Police officer' s power to
investigate cognizable case. - (1) Any
officer in charge of a police station may,
without
the
order
of a
Magistrate,
investigate any cognizable case which a
Court having jurisdiction over the local
area within the limits of such station would
have power to inquire into or try under the
provisions of Chapter XIII.

(2) No proceeding of a police officer
in any such case shall at any stage be
called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered under
Section
190
may
order
such
an
investigation as above- mentioned.

Section 190. Cognizance of offences
by Magistrates. - (1) Subject to the
provisions of this Chapter, any Magistrate
of the first class, and any Magistrate of the
second class specially empowered in this
behalf under Sub-Section (2), may take
cognizance of any offence-

(a) upon receiving a complaint of facts
which constitute such offence

(b) upon a police report of such facts;

(c) upon information received from
any person other than a police officer, or
upon his own knowledge, that such offence
has been committed.

(2) The Chief Judicial Magistrate may
empower any Magistrate of the second
class to take cognizance under Sub-Section
(1) of such offences as are within his
competence to inquire into or try.

Section.
200.
Examination
of
complainant.
-
A
Magistrate
taking
cognizance of an offence on complaint
shall examine upon oath the complainant
and the witnesses present, if any, and the
substance of such examination shall be
reduced to writing and shall be signed by
the complainant and the witnesses, and
also by the Magistrate:

Provided that, when the complaint is
made in writing, the Magistrate need not
examine
the
complainant
and
the
witnesses-

(a) if a public servant acting or-
purporting to act in the discharge of his
official duties or a Court has made the
complaint; or

(b) if the Magistrate makes over the
case for inquiry or trial to another
Magistrate under Section 192:

Provided further that if the Magistrate
makes over the case to another Magistrate
under Section 192 after examining the
complainant and the witnesses, the latter
Magistrate need not re-examine them.

14. Writ of Mandamus is one of the
prerogative writs issued by the superior
Courts (High Court or Supreme Court),
which is in shape of command to the
State,
its
instrumentality
or
its
functionaries to compel them to perform
their constitutional/statutory/public duty.
To clarify, the extract of decision of
Apex Court explaining the discretionary
limitations adopted by the Writ Court
while issuing writ of mandamus are as
follows:-

(i)
Thansingh
Nathmal
Vs.
Superintendent of Taxes, AIR 1964 SC
1419 :-
622 INDIAN LAW REPORTS ALLAHABAD SERIES

"The jurisdiction of the High Court
under Article 226 of the Constitution is
couched in wide terms and the exercise
thereof is not subject to any restrictions
except the territorial restrictions which are
expressly provided in the Articles. But the
exercise of the jurisdiction is discretionary;
it is not exercised merely because it is
lawful to do so. The very amplitude of the
jurisdiction demands that it will ordinarily
be exercised subject to certain self-imposed
limitations. Resort to that jurisdiction is not
intended as an alternative remedy for relief
which may be obtained in a suit or other
mode prescribed by statute. Ordinarily the
Court will not entertain a petition for a writ
under Art. 226, where the petitioner has an
alternative remedy which, without being
unduly onerous, provides an equally
efficacious remedy."

15. The writ remedy is extra-ordinary
remedy and equitable remedy. Further, the
writ Court need not entertain a writ petition
merely because a case is made out of
alleged inaction or negligent in acting on an
issue by an authority vested with power, in
these cases to register crime/to complete
investigation into crime, if statutorily
engrafted remedy is available to seek
redress on such grievance. Even if, a case is
made out on alleged illegal action by
statutory authority, which require redressal,
ordinarily writ Court does not entertain the
writ petition if the aggrieved person has not
availed other remedies, more so, such
remedies are incorporated in a statute.

16. In the case of Whirlpool
Corporation. v. Registrar of Trade Marks,
- (1998) 8 SCC 1, the Apex Court had held
as follows:-

"15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. But the High Court has
imposed upon itself certain restrictions one
of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction. But the alternative remedy has
been consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or where
there has been a violation of the principle
of natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged."

17. The power to issue writ of
mandamus has its own well defined self
imposed limitations, one of which is
availability
of
alternative
efficacious
remedy on the basis of which the Writ
Court can deny issuance of the said writ.

18. This Court deems it appropriate to
answer principal issue No.2 first. The
principal issue No.2 is as follows :-

(ii) Whether the Constitution Bench
decision of the Apex Court in the case of
Lalita Kumari (supra) is an answer to the
above said principal issue No.1 ?

19. The decision of Lalita Kumari
(supra) of the Apex Court arose out of a
petition
under
Article
32
of
the
Constitution of India seeking issuance of
writ of habeas corpus or directions of like
nature against the respondents therein for
the protection of minor daughter who was
kidnapped. As per paragraphs 1 & 6 of the
said judgment, the Apex Court framed the
question raised and decided therein which
are reproduced below :-
1 All. Waseem Haider Vs. State of U.P. & Ors.
623

"Para 1. The important issue which
arises for consideration in the referred
matter is whether "a police officer is bound
to register the first information report
(FIR) upon receiving any information
relating to commission of cognizable
offence under Section 154 of the Code of
Criminal Procedure, 1973 ( in short' the
Code') or the police officer has the power
to conduct 'preliminary inquiry' in order to
test the veracity of such information before
registering the same"?

Para 6. Therefore, the only question
before this Constitution Bench relates to
the interpretation of Section 154 of the
Code and incidentally to consider Sections
156 and 157 also".

20. Perusal of the judgment of Lalita
Kumari (supra) and the final directions
passed in paragraphs 120.1 to 120.8 clearly
reveal the laying down of ratio that the
police has no option but to register the
offence in shape of FIR under Section 154
Cr.P.C. on receipt of first information
regarding
commission
of
cognizable
offence without verifying the veracity of
the first information.

21. Though the Apex Court while
formulating the question in paragraph 6
(supra) made reference to Sections 156 &
157 but the entire judgment of Lalita
Kumari and final directions issued therein
centre around the statutory obligation of the
police to register the offence under Section
154 Cr.P.C, with only passing reference of
Section 156 & 157 without laying down
any law as regards these provisions
(Section 156 and 157 Cr.P.C.).

22. Therefore, it can safely be
concluded that the Apex Court while
interpreting the statutory provision under
Section 154 Cr.P.C said nothing further as
regards remedy available to the informant
whose information of commission of
cognizable offence does not invoke any
response from the police. Thus, the
judgment of Lalita Kumari does not lay
down any law in respect of remedies
available to the informant under Cr.P.C. to
be invoked in case of failure on the part of
the police to perform its statutory duty
under Section 154(1)/154(3) Cr.P.C. as a
sine qua non for seeking writ of mandamus.

23. Consequently, the case of Lalita
Kumari of the Apex Court does not answer
the principal issue No.1 framed by this
Court.

24. Now this Court takes up the
principal issue No.1.

25. The self imposed restriction of
availability of statutory remedy while
considering issuance of writ of mandamus
is universally applied with few exceptions
as enumerated above.

26. The Code of Criminal Procedure
provides
various
avenues
before
the
informant/victim
to
initiate
criminal
prosecution. The first avenue is of lodging
of FIR under Section 154(1)/154(3) which
can be availed by the victim and as well as
a stranger to the offence, provided the first
information
discloses
commission
of
cognizable offence. The lodging of FIR
under Section 154 Cr.P.C. sets the
investigative
machinery
into
motion
without prior permission of the Magistrate
as is otherwise required for non-cognizable
offences.

27. The second avenue available to
the victim and as well as a stranger to the
cognizable offence, is under Section 156(3)
by approaching the concerned Magistrate
624 INDIAN LAW REPORTS ALLAHABAD SERIES
by informing commission of cognizable
offence. The Magistrate can then conduct
an enquiry himself or direct the concerned
police station to register the offence
alleged,
thereby
triggering
the
investigation.

28. The third avenue available is
under Section 190 Cr.P.C empowering the
competent Magistrate to take cognizance of
any offence upon receipt of complaint of
facts containing allegation constituting the
offence, or upon a police report of such
facts or upon information received from
any person other than a police officer, or
upon his own knowledge of commission of
cognizable and as well as non-cognizable
offence, except offences punishable under
Chapter XX of IPC, for which procedure
prescribed under Section 198 Cr.P.C. is to
be adhered to.

29. The fourth avenue is under
Section 200 Cr.P.C where a complaint, oral
or in writing if made before the competent
Magistrate
leads
to
hearing
by
the
Magistrate on the question of taking
cognizance of offence or not and if it is
found that complaint discloses commission
of any offence punishable in law then the
Magistrate issues summons to the proposed
accused on appearance of whom statements
of rival parties are recorded and the
Magistrate decides on the question of
framing of charge or discharging the
accused. If charges are framed then trial
proceeds.

30. The above said discussion makes
it clear that there are four different
remedies available under Cr.P.C for the
informant/victim to initiate prosecution in
respect of the cognizable/non-cognizable
offence which is alleged in the first
information furnished which fails to invoke
response from the police. More so, these
statutory remedies cannot be branded as
non-efficacious or onerous. Accordingly,
informant whose first information does not
lead to registration of offence under
Section 154 Cr.P.C is not remedy-less and
therefore, the constraints exercised by the
writ Court while issuing writ of mandamus
come into play. These constraints as
enumerated above are self imposed and lie
within the domain of discretion rather than
rule but none the less are invariably applied
by superior courts while exercising writ
jurisdiction.
To
elaborate,
if
it
is
demonstrated that impugned action or
inaction
is
vitiated
by
violation
of
principles of natural justice, or being bereft
of jurisdiction or violates any statutory
provision or causes breach of fundamental
rights, then non-availing of alternative
remedy cannot restrain the informant or
victim to successfully invoke the writ
jurisdiction of the superior Court.

31. In the case of Abhinandan Jha v.
Dinesh Mishra - (1967) 3 SCR 668, the
Supreme Court took great pains in
demarking the powers of the police and the
judiciary. They explained the duties of the
police, in the matter of investigation of
offences, as well as their powers. It is
necessary to refer to the provisions
contained in Chapter XIV of the Code,
Sections beginning from Section 154, and
ending with Section 176. Section 154 deals
with
information
relating
to
the
commission of a cognizable offence, and
the procedure to be adopted in respect of
the same. In each of these sections, there is
no role of Judiciary. The sections provide
guidelines to the police on how to proceed
with the Investigation but there is always a
discretion to the police officer to conduct a
preliminary inquiry in case a complaint
does not clearly disclose a Cognizable
1 All. Waseem Haider Vs. State of U.P. & Ors.
625
offence or has doubts over the veracity of
the complaint. The relevant extract (Para -
7) is as follows:-

"7. In order, properly, to appreciate
the duties of the police, in the matter of
investigation of offences, as well as their
powers, it is necessary to refer to the
provisions contained in Chapter XIV of the
Code. That chapter deals with "Information
to the Police and their Powers to
investigate"; and it contains the group of
sections beginning from Section 154, and
ending with Section 176. Section 154 deals
with information relating to the commission
of a cognizable offence, and the procedure
to be adopted in respect of the same.
Section
155,
similarly,
deals
with
information in respect of non-cognizable
offences. Sub-section (2), of this section,
prohibits a police officer from investigating
a non-cognizable case, without the order of
a Magistrate. Section 156 authorises a
police officer, in-charge of a police station,
to investigate any cognizable case, without
the order of a Magistrate. Therefore, it will
be seen that large powers are conferred on
the police, in the matter of investigation
into a cognizable offence. Sub-section (3),
of
Section
156,
provides
for
any
Magistrate, empowered under Section 190,
to order an investigation. In cases where a
cognizable offence is suspected to have
been committed, the officer in-charge of a
police station, after sending a report to the
Magistrate, is entitled, under Section 157,
to investigate the facts and circumstances
of the case and also to take steps for the
discovery and arrest of the offender. Clause
(b), of the proviso to Section 157(1), gives
a discretion to the police officer not to
investigate the case, if it appears to him
that there is no sufficient ground for
entering on an investigation. Section 158
deals with the procedure to be adopted in
the matter of a report to be sent, under
Section 157. Section 159 gives power to a
Magistrate, on receiving a report under
Section
157,
either
to
direct
an
investigation
or,
himself
or
through
another Magistrate subordinate to him, to
hold a preliminary enquiry into the matter,
or otherwise dispose of the case, in
accordance with the Code. Sections 160 to
163 deal with the power of the police to
require attendance of witnesses, examine
witnesses and record statements. Sections
165 and 166 deal with the power of police
officers, in the matter of conducting
searches, during an investigation, in the
circumstances, mentioned therein. Section
167 provides for the procedure to be
adopted by the police, when investigation
cannot be completed in 24 hours. Section
168 provides for a report being sent to the
officer in charge of a police station, about
the result of an investigation, when such
investigation
has
been
made
by
a
subordinate police officer, under Chapter
XIV. Section 169 authorises a police officer
to release a person from custody, on his
executing a bond, to appear, if and when so
required, before a Magistrate, in cases
when, on investigation under Chapter XIV,
it appears to the officer in-charge of the
police station, or to the police officer
making the investigation, that there is no
sufficient evidence or reasonable ground of
suspicion, to justify the forwarding of the
accused to a Magistrate. Section 170
empowers the officer, in charge of a police
station, after investigation under Chapter
XIV, and if it appears to him that there is
sufficient evidence, to forward the accused,
under custody, to a competent Magistrate
or to take security from the accused for his
appearance before the Magistrate, in cases
where the offence is bailable. Section 172
makes it obligatory on the police officer
making an investigation, to maintain a
626 INDIAN LAW REPORTS ALLAHABAD SERIES
diary recording the various particulars
therein and in the manner indicated in that
section. Section 173 provides for an
investigation, under Chapter XIV, to be
completed, without unnecessary delay and
also makes it obligatory, on the officer in
charge of the police station, to send a
report to the Magistrate concerned, in the
manner provided for therein, containing
the necessary particulars."

32. In the case of H.N. Rishbud and
Inder Singh v. State of Delhi - 1955 (1)
SCR 1150, the Hon'ble Supreme Court held
that the Judiciary should not interfere with
the police in matters such as Investigation
especially of cognizable offence which is
the statutory right of the police. The court
observed
that
the
police
needs
no
authorisation of the judiciary. The court
opined that the functions of the police and
judiciary are complimentary and not
overlapping keeping in mind individual
liberty and law and order situation in the
Country. The judiciary role comes into play
when a charge is established and not before
that. The relevant extracts (Paras - 5 & 8)
are as followes:-

"5. To determine the first question it is
necessary to consider carefully both the
language and scope of the section and the
policy underlying it. As has been pointed
out
by
Lord
Campbell
in Liverpool
Borough Bank v. Turner [(1861) 30 LJ Ch
379] , "there is no universal rule to aid in
determining
whether
mandatory
enactments shall be considered directory
only or obligatory with an implied
nullification for disobedience. It is the duty
of the Court to try to get at the real
intention of the Legislature by carefully
attending to the whole scope of the statute
to be construed". (See Craies on Statute
Law, p. 242, Fifth Edn.) The Code of
Criminal Procedure provides not merely
for judicial enquiry into or trial of alleged
offences but also for prior investigation
thereof. Section 5 of the Code shows that
all offences "shall be investigated, inquired
into, tried and otherwise dealt with in
accordance with the Code" (except in so
far as any special enactment may provide
otherwise).
For
the
purposes
of
investigation offences are divided into two
categories
"cognizable"
and
"noncognizable". When information of the
commission of a cognizable offence is
received or such commission is suspected,
the appropriate police officer has the
authority to enter on the investigation of
the same (unless it appears to him that
there is no sufficient ground). But where
the information relates to a non-cognizable
offence, he shall not investigate it without
the order of a competent Magistrate. Thus
it may be seen that according to the scheme
of the Code, investigation is a normal
preliminary to an accused being put up for
trial for a cognizable offence (except when
the Magistrate takes cognizance otherwise
than on a police report in which case he
has the power under Section 202 of the
Code to order investigation if he thinks fit).
Therefore, it is clear that when the
Legislature made the offences in the Act
cognizable, prior investigation by the
appropriate
police
officer
was
contemplated as the normal preliminary to
the trial in respect of such offences under
the Act. In order to ascertain the scope of
and
the
reason
for
requiring
such
investigation to be conducted by an officer
of high rank (except when otherwise
permitted by a Magistrate), it is useful to
consider what "investigation" under the
Code comprises. Investigation usually
starts on information relating to the
commission of an offence given to an
officer in charge of a police station and
1 All. Waseem Haider Vs. State of U.P. & Ors.
627
recorded under Section 154 of the Code. If
from information so received or otherwise,
the officer in charge of the police station
has reason to suspect the commission of an
offence, he or some other subordinate
officer deputed by him, has to proceed to
the spot to investigate the facts and
circumstances of the case and if necessary
to take measures for the discovery and
arrest of the offender. Thus investigation
primarily consists in the ascertainment of
the facts and circumstances of the case. By
definition, it includes "all the proceedings
under the Code for the collection of
evidence conducted by a police officer".
For the above purposes, the investigating
officer is given the power to require before
himself the attendance of any person
appearing to be acquainted with the
circumstances of the case. He has also the
authority to examine such person orally
either by himself or by a duly authorised
deputy. The officer examining any person
in the course of investigation may reduce
his statement into writing and such writing
is available, in the trial that may follow, for
use in the manner provided in this behalf in
Section 162. Under Section 155 the officer
in charge of a police station has the power
of making a search in any place for the
seizure
of
anything
believed
to
be
necessary
for
the
purpose
of
the
investigation. The search has to be
conducted by such officer in person. A
subordinate officer may be deputed by him
for the purpose only for reasons to be
recorded in writing if he is unable to
conduct the search in person and there is
no other competent officer available. The
investigating officer has also the power to
arrest the person or persons suspected of
the commission of the offence under
Section 54 of the Code. A police officer
making an investigation is enjoined to enter
his proceedings in a diary from day-to-day.
Where
such
investigation
cannot
be
completed within the period of 24 hours
and the accused is in custody he is enjoined
also to send a copy of the entries in the
diary to the Magistrate concerned. It is
important
to
notice
that
where
the
investigation is conducted not by the officer
in charge of the police station but by a
subordinate officer (by virtue of one or
other of the provisions enabling him to
depute such subordinate officer for any of
the steps in the investigation) such
subordinate officer is to report the result of
the investigation to the officer in charge of
the police station. If, upon the completion
of the investigation it appears to the officer
in charge of the police station that there is
no sufficient evidence or reasonable
ground, he may decide to release the
suspected accused, if in custody, on his
executing a bond. If, however, it appears to
him that there is sufficient evidence or
reasonable ground, to place the accused on
trial, he is to take the necessary steps
therefore under Section 170 of the Code. In
either case, on the completion of the
investigation he has to submit a report to
the Magistrate under Section 173 of the
Code in the prescribed form furnishing
various details. Thus, under the Code
investigation consists generally of the
following steps: (1) Proceeding to the spot,
(2)
Ascertainment
of
the
facts
and
circumstances of the case, (3) Discovery
and arrest of the suspected offender, (4)
Collection of evidence relating to the
commission of the offence which may
consist of (a) the examination of various
persons (including the accused) and the
reduction of their statements into writing, if
the officer thinks fit, (b) the search of
places or seizure of things considered
necessary for the investigation and to be
produced at the trial, and (5) Formation of
the opinion as to whether on the material
628 INDIAN LAW REPORTS ALLAHABAD SERIES
collected there is a case to place the
accused before a Magistrate for trial and if
so taking the necessary steps for the same
by the filing of a charge-sheet under
Section 173. The scheme of the Code also
shows that while it is permissible for an
officer in charge of a police station to
depute some subordinate officer to conduct
some of these steps in the investigation, the
responsibility for every one of these steps is
that of the person in the situation of the
officer in charge of the police station, it
having been clearly provided in Section
168 that when a subordinate officer makes
an investigation he should report the result
to the officer in charge of the police station.
It is also clear that the final step in the
investigation, viz. the formation of the
opinion as to whether or not there is a case
to place the accused on trial is to be that of
the officer in charge of the police station.
There is no provision permitting delegation
thereof but only a provision entitling
superior officers to supervise or participate
under Section 551.

8. A number of decisions of the
various High Courts have been cited before
us
bearing on
the questions
under
consideration. We have also perused the
recent unreported Full Bench judgment of
the Punjab High Court [ Criminal Appeals
Nos. 25-D and 434 of 1953 disposed of on
3rd May, 1954] . These disclose a conflict
of opinion. It is sufficient to notice one
argument based on Section 156(2) of the
Code on which reliance has been placed in
some of these decisions in support of the
view that Section 5(4) of the Act is
directory and not mandatory. Section 156
of the Criminal Procedure Code is in the
following terms:

"156.(1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the
local area within the limits of such station
would have power to inquire into or try
under the provisions of Chapter XV
relating to the place of inquiry or trial.

(2) No proceeding of a police-officer
in any such case shall at any stage be
called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered under
Section
190
may
order
such
an
investigation as above-mentioned."

The argument advanced is that Section
5(4) and proviso to Section 3 of the Act are
in substance and in effect in the nature of
an amendment of or proviso to Section
156(1) of the Code of Criminal Procedure.
In this view, it was suggested that Section
156(2) which cures the irregularity of an
investigation by a person not empowered is
attracted to Section 5(4) and proviso to
Section 3 of the 1947 Act and Section 5-A
of the 1952 Act. With respect, the learned
Judges appear to have overlooked the
phrase "under this section" which is to be
found in sub-section (2) of Section 156 of
the Code of Criminal Procedure. What that
sub-section cures is investigation by an
officer not empowered under that section
i.e. with reference to sub-sections (1) and
(3) thereof. Sub-section (1) of Section 156
is a provision empowering an officer in
charge of a police station to investigate a
cognizable case without the order of a
Magistrate and delimiting his power to the
investigation of such cases within a certain
local jurisdiction. It is the violation of this
provision that is cured under sub-section
(2). Obviously sub-section (2) of Section
156 cannot cure the violation of any other
specific statutory provision prohibiting
investigation by an officer of a lower rank
than a Deputy Superintendent of Police
unless specifically authorised. But apart
1 All. Waseem Haider Vs. State of U.P. & Ors.
629
from the implication of the language of
Section 156(2), it is not permissible to read
the emphatic negative language of subsection (4) of Section 5 of the Act or of the
proviso to Section 3 of the Act, as being
merely in the nature of an amendment of or
a proviso to sub-section (1) of Section 156
of the Code of Criminal Procedure. Some
of the learned Judges of the High Courts
have called in aid sub-section (2) of Section
561 of the Code of Criminal Procedure by
way of analogy. It is difficult to see how
this analogy helps unless the said subsection is also to be assumed as directory
and not mandatory which certainly is not
obvious on the wording thereof. We are,
therefore, clear in our opinion that Section
5(4) and proviso to Section 3 of the Act and
the corresponding Section 5-A of Act 59 of
1952 are mandatory and not directory and
that
the
investigation
conducted
in
violation thereof bears the stamp of
illegality.

33. In the case of Sevi v. State of
Tamilnadu - 1981 Supp SCC 43, the
Hon'ble Supreme Court has held that before
registering an FIR under Section 154 of the
Code, it is open to the police officer to hold
a preliminary inquiry to ascertain whether
there is a prima facie case of commission
of a cognizable offence or not. The relevant
extract (Para - 3) is as follows :-

"3. One of the disturbing features of
the case is the strange conduct of PW 15
the Sub-Inspector of Police. According to
him he was told by PW 10 on the telephone
that there was some rioting at Kottaiyur
and that some persons were stabbed. He
made an entry in the general diary and
proceeded to Kottaiyur taking with him the
FIR book, the hospital memo book etc. This
was indeed very extraordinary conduct on
the part of the Sub-Inspector of Police.