# S. N. SHARMA v. BIPEN KUMAR TIWARI AND ORS

- **Citation:** [1970] 3 S.C.R. 946
- **Court:** Supreme Court of India
- **Decided:** 1970-03-10
- **Bench:** S. M. Sikri, V. Bhargava, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-n-sharma-v-bipen-kumar-tiwari-and-ors-5000
- **Pages:** 7

## Headnote

B
· Code 6f Criminal Procedure, (5 of 1898), s. 159-Maiutrote-if can
hold tnquiry himself, and stop police investign1ion.
A first information report was lodged in respect of a crime and the
appellant, who was the AJditional District Ma&istrate · (Judicial)
was
named therein as principal accused. The offences mentioned were coani·
zable and the Police after re¥istering the case, started investigation. The
appellant applied to the Judicial Magistrate for invocation of the provisions
of s. 159 Cr.P.C., and for conducting preliminary enquiry by the Court
itself and for issuance of nei;essary directions to the Police to stop
investiaation alleging that a false report had been lodged at the instance
of the local police. The Magistrate directed the police to stop investip·
lion and decided to hold the enquiry himself. Thereupon an application
was moved in the High Court under s. 561 A Cr.P.C. for quashing the
order of the Magistrate as he had no jurisdiction to pass such an order
under s. 159 Cr.P.C. The High Court accepted the application and set
aside the Magistrate's order. Dismissing the appeal. this Court.
HELD : Section 159 Cr.P.C. does not empower a Magistrate to stop
investigation by the police.
c
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This section first mentions the power of the Magistrate to direct an in·
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vestigation on receiving the report under s. 157, and then states the alternative that, if he thinks fit, he may at once proceed, rJr depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or
otherwise to dispose of, the case. On the face of it, the first alternative of
directing an investigation cannot arise in a case where the report it:self shows
that investigation by the police is going on in accordance with s. 156. It is
to be noticed that the second alteroative does not give the Magistrate an
unqualified power to proceed himself or depute any Magistrate to hold
F
the preliminary enquiry. That power is preceded by the condition that
he may do so, "if he thinks fit'. The use of this expression makes it
clear that s. I 59. is primarily meant to give to the Magistrate the power
of directinJ?: an investigation in cases where ,the police decides not to
investie:ate the case under the proviso to s. 157 ( 1). and it is in tho·se cases
that. it he thinks fit, he can choose the second alternative. Without the
use of the exoression "if he thinks fit" the second aJte~nati\-e could have
been held to be independent of the first; but the use of this
cxpres·sion
G
!rnakes h plain that the oo,ver confelrred bv the second clause of this
section is only an alternative to the power given by the first clause and
can. therefor~. be e,,;ercised only in those cases in Whicfl the first clause
is applicable.
·
Even in sub..s.(3) of section 156, the only po,~:er given to the Magi5trate, who can take cognisance of an
offence under section
190. is to
H
order an 'investiJation~ there is no mention of any power to
stop
an
investigation by the oolice. The scheme of the·se sections. thus, clearly is
that the oower of the oolice to investi~ate any cognizable offence is un~
controlled by the Magistrate, and it is only in cases where the police
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s. N. SHARMA V. B. K. TIWARI (Bhargm·a, J.)
947
decide not to investigate the case that the Magistrate can intervene and
either direct an investigation. or, in the alternative, himself proceed or
depute a Magistrate subordinate to him to proceed to enquire into the
case. [949 G-950 F]
The Crown v. Mohammad Sadia Naiz. A.LR. 1949, Lah. 204, Pancham
Singh v. The State. A.J.R. 1967 Pat. 416 and King Emperor V'. Khwaia
Naziil Ahmad, 71 I.A. 203, refelrred to.
(2) The Code of Criminal Procedure gives to the police unfettered
power to investigate all cases where they suspect a cognizable offence has
been committed. If the police engineer a false report of a cognizable
offence a~ainst anv oerson he can in aoorooriate cases always invoke the
'•
power of the High Court under Art. 226. Therefore, the fact that t

## Text

946
S. N. SHARMA
A
v.
BIPEN KUMAR TIWARI AND ORS.
March 10, 1970
[S. M. SIKRI, V. BHARGAVA & C. A. VAIDIALINGAM, JJ.]
B
· Code 6f Criminal Procedure, (5 of 1898), s. 159-Maiutrote-if can
hold tnquiry himself, and stop police investign1ion.
A first information report was lodged in respect of a crime and the
appellant, who was the AJditional District Ma&istrate · (Judicial)
was
named therein as principal accused. The offences mentioned were coani·
zable and the Police after re¥istering the case, started investigation. The
appellant applied to the Judicial Magistrate for invocation of the provisions
of s. 159 Cr.P.C., and for conducting preliminary enquiry by the Court
itself and for issuance of nei;essary directions to the Police to stop
investiaation alleging that a false report had been lodged at the instance
of the local police. The Magistrate directed the police to stop investip·
lion and decided to hold the enquiry himself. Thereupon an application
was moved in the High Court under s. 561 A Cr.P.C. for quashing the
order of the Magistrate as he had no jurisdiction to pass such an order
under s. 159 Cr.P.C. The High Court accepted the application and set
aside the Magistrate's order. Dismissing the appeal. this Court.
HELD : Section 159 Cr.P.C. does not empower a Magistrate to stop
investigation by the police.
c
D
This section first mentions the power of the Magistrate to direct an in·
E
vestigation on receiving the report under s. 157, and then states the alternative that, if he thinks fit, he may at once proceed, rJr depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or
otherwise to dispose of, the case. On the face of it, the first alternative of
directing an investigation cannot arise in a case where the report it:self shows
that investigation by the police is going on in accordance with s. 156. It is
to be noticed that the second alteroative does not give the Magistrate an
unqualified power to proceed himself or depute any Magistrate to hold
F
the preliminary enquiry. That power is preceded by the condition that
he may do so, "if he thinks fit'. The use of this expression makes it
clear that s. I 59. is primarily meant to give to the Magistrate the power
of directinJ?: an investigation in cases where ,the police decides not to
investie:ate the case under the proviso to s. 157 ( 1). and it is in tho·se cases
that. it he thinks fit, he can choose the second alternative. Without the
use of the exoression "if he thinks fit" the second aJte~nati\-e could have
been held to be independent of the first; but the use of this
cxpres·sion
G
!rnakes h plain that the oo,ver confelrred bv the second clause of this
section is only an alternative to the power given by the first clause and
can. therefor~. be e,,;ercised only in those cases in Whicfl the first clause
is applicable.
·
Even in sub..s.(3) of section 156, the only po,~:er given to the Magi5trate, who can take cognisance of an
offence under section
190. is to
H
order an 'investiJation~ there is no mention of any power to
stop
an
investigation by the oolice. The scheme of the·se sections. thus, clearly is
that the oower of the oolice to investi~ate any cognizable offence is un~
controlled by the Magistrate, and it is only in cases where the police
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A
B
s. N. SHARMA V. B. K. TIWARI (Bhargm·a, J.)
947
decide not to investigate the case that the Magistrate can intervene and
either direct an investigation. or, in the alternative, himself proceed or
depute a Magistrate subordinate to him to proceed to enquire into the
case. [949 G-950 F]
The Crown v. Mohammad Sadia Naiz. A.LR. 1949, Lah. 204, Pancham
Singh v. The State. A.J.R. 1967 Pat. 416 and King Emperor V'. Khwaia
Naziil Ahmad, 71 I.A. 203, refelrred to.
(2) The Code of Criminal Procedure gives to the police unfettered
power to investigate all cases where they suspect a cognizable offence has
been committed. If the police engineer a false report of a cognizable
offence a~ainst anv oerson he can in aoorooriate cases always invoke the
'•
power of the High Court under Art. 226. Therefore, the fact that the
Code docs not provide for a po~·er to a Magistrate to stop investigation by
C
the nolice cannot be a ~round for holding that such a powe" must be
read into s. 159 of the Code. [951 Hl
CRIMINAL APPELLATI! JURISDICTION : Criminal Appeal No.
256 of 1969.
'
Appeal by special leave from the jud~ment and order dated
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Janua.rv 15, 1969 of the Allahabad High Court in Criminal Misc.
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Case No. 1770 of 1968.
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R. K. Garg, S. C. Aga1wal, D. P. Singh, V. J. Francis and
S. Chak~avarty, for the appellant.
0. P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Bbargava, J.
A first inforrriation reiiort was lodged by one
Vijay Shanker Nfgam in Police Station Cantonment, Gorakhpur,
in respect of an incident alleged to have taken place ·at about 7
p.m. on 10th April, 1968 in fro~_ of his house.
The report
stated that one Bipen Kumar Tiwar1 had been attacked by certain
goondas who also stabbed him with a knife and further caused
injuries ot Vijay Shankar Nigam also.
One of the principal
accused named in that report was S. N. Sharma, Additional District Magistrate (Judicial), Gorakhpur, who is the appellant in
this appeal.
The allegation agains~ him was that it was at his
instigation that the goondas had attacked Bipen Kumar Tiwari
and attempted to murder him.
The offences ·made out by the
report lodged by Vijay Shankar Nigam were cognizable and the
Police, after registering the case, started investigation.
On the
13th April, 1968, the appellant moved an application before the
Judicial Magistrate having jurisdiction to take cognizance of the
offence, alleging that a false report had been lodged against him at
the connivance and instance of the local police. It was μrged
that it would, therefore, _be desirable in the interest of justice that
provisions of section 159 of the Code of Criminal Procedure be
948
. SUPREME COFRT REPORTS
(1970) 3 S.C.R .
invok~ and the preliminary enquiry J"Ilay be conducted by the
Court itself .and ~ece~sary directions may be issued to the Police
to s~op the mvest1gat10n. The Magistrate, after hearing both
parties, passed an order directi~g the police to stop investigation
and decided to hold the enquiry himself.
Thereupon, on 2nd
May, 1968, an application was moved in the High Court of
Allahabad under section 561A, Cr. P.C., to quash the order
passed by the Magistrate on 13th April, 1968, on the ground that
he had no jurisdiction to pass such an order under s. 159, Cr.
P.C. This application was allowed by the High Court by its
judgmen~ dated 15th January, 1969, so that the High Court
quashed the order of the Judicial Magistrate and held that the
police of Gorakhpur was at liberty to conclude the investigation
and submit its report to the Magistrate after which the case could
proceed in accordance with law.
The appeJ:ant has challenged
this order of the High Court in. this appeal brought up by special
leave.
Section 156(1) of the Code of Criminal Procedure empowers
an officer in charge of a police-station to investigate. any cognizable case without the order of a Magistrate. Sub-section (2) of s.
156 lays down that 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 no~ empowred under this
section to investigate, while sub-s. (3) gives power to any Magistrate empowered under section 190 of the Code to order such an
investigation in any case as mentioned in sub-s. (!). Section 157
requires that, whenever such infonnation in received by an officer
in charge of a police-stalion that he has reason to suspect the
commission of an offence which he is empowered to investigate
under section 156, he must forthwith send a report of it to the
Magistrate empowered to tak~ cognizance of such an offence upon
a police report and, at the same t-ime, he must either proceed in
person, or depute one of his subordinate officers to proceed, to
the spot to investigate the facts and circumstances of the case,
and, if necessary, to take measures for discovery and arrest of the
offender. This provision is qualified by a proviso which is in two
parts. The first clause of the proviso enables an officer in charge
of a police station not to proceed to make an investigation on the
spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case
is not of a serious nature. The second clause of the proviso permits the officer in charge of a police station not to investigate the
case if i~ appears to him that there is no sufficient ground for ,entering on an investigation. The report to be sent to the Magistrate
under sub-s. (1) of section 157 requires that in each of the cases
where the officer in charge of the police station decides to act
under the two clauses of the proviso, he must state in his report
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s. N. SHARMA I'. u. I.., TJWAR[ ( Bhargm·a, J.)
949
his reasons for not fully complying with the requirements of subsection ( l) and, in addition. in cases wh~re he decided not to in-
. vestigate on the ground mentioned in the second clause of the
proviso, he is required to notify to the informant the fact that he
will not investigate the case or cause it to .be investigated. These
provisions are followed by section 159 which is as follows :-
" 159. Such Magistrate. on receiving such report, may
direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to
proceed. to hold a preliminary inquiry into, or oth~r
wi>e to dispose of, the case in manner provided in this
Code."
The High Court has held that, under s. 159, the only power,
which the Magistrate ciln exercise on receiving a report from the
officer in charge of a police station, is to make an order in those
cases which arc covered by the proviso to sub-s. (1) of sec[ion
157, vi~ .. cases in which the officer in charge of the police station
does not proceed to investigate the case. The High Court has
further held that this s. 159 does not empower a Magistrate to
stop investigation by the police in exercise of the power conferred
on it by section 156. It is the correctness of this decision which
has been challenged by the appellant, and the ground taken is
that s. 159 should be interpreted as being wide enough to permit
the Magistrate to proceed, or depute any Magistrate subordinate
to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case in the manner provided in this Code,
even if the report from the police, submitted under section 157,
states that the police is proceeding with the investigation of the
offence.
It was urged by counsel for the appellant that the narrower interpretation of s. 15'1 accepted by the High Court will
leave persons at the mercy of the police who can harass any one
by having a false report lodged and starting investigation on the
basis of such a report without any control by the judiciary. He has
particularly emphasised the case of the appellant who was himself
a Judicial Officer working as Additional District· Magistrate and
who moved the Magistrate on the ground that the police had
engineered the case against him.
We. however, feel constrained to hold that the lang1rnge used
in s. l 59 does not permit the wider interpretation put forward by
counsel for the appellant. This section first mentions the power
of the Magistrate to direct an investigation on receiving the report
under s. l 57, and then states the alternative that, if he thinks fit,
he may at once proceed, or depute any Magistrat~ subordinate
H
to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case. On the face of it, the first alternative
of directing an inve>tigation cannot arise in a case where the report itself shows that investigation by the police is going on in
950
SUPREME COURT REPORTS
(1970) 3 S.C.R.
accordance withs. 156. It is to be noticed that the second alternative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary
enquiry. That power is prec.eded by the condition that he may
do so, "if he thinks fit''. The use of this expression makes it clear
thats. 159 is primarily meant to give to the Magistrate the power
of directing an investigation in cases where the police decide not
to investigate the case under the proviso to s. 157(1), and ii is in
those cases that, if he thinks fit, he can choose the second alternative. If the expression "if he thinks fit" had not been used, it
mighl have been argued that this section was intended to give in
wide terms the power to the Magistrate to adopt any of the two
courses of either directing an investigation, or of proceeding himself. or deputing any Magistrate subordinate to him to proc.eed to
hold a preliminary enquiry as the circumstances of the case may
require. Without the use of the expression "if he thinks fit", the
second alternative could have been held to be independent of the
first; but the use of this expression, in our opinion, makes it plain
that the power conferred by the second clause of this section is
only an alternative to the power given by the first clause and can,
therefore, be exercised only in those cases in which the first clause
is applicable.
It may also be further noticed that, even in sub-s. (3) of sec·
tion 156, the only power given to the Magistrate, who can take
cognizance of.an offence under section 190, is to order an investi·
gation; there is no mention of any power to stop an investigation
by. the police. The scheme of these sections, thus, clearly is that
the power of the police to investigate any cognizable offence is
uncontrolled by the Magistrate, and it is only in cases where the
police decide not to investigate the case that the Magistrate can
intervene and either direct an investigation, or, in the alternative,
himself proceed or depute a Magistrate subordinate to him to
proceed to enquire into the case. The power of the police to in·
· vestigate has been made independent of any control by the Magis·
trate. "
The High Court of Lahore in The Crown v. Mohammad
Sadiq Niaz('), and the High Court of Patina in Pancham Singh
v. The State( 2 ) interpreted section 159 to the same effect as held
by us above. The reasons given were different. Both the Courts
based their decisions primarily on the view expressed by the Privy
Council in King-Emperor v. Khwaja Nazir Ahmad('). That case,
however, was. not quite to the poipt that has come up for decision
before us.
'IJ!e Privy Council vjas concerned with the question
whether the High Court had power under section 561A of the'
. (1) A.l.R. 1949 Lah. 204.
(2) A.l.R. 1967 Patna418.
(3) 71 I.A. 203.
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s. N. SHARMA v. B. K. TIWARI (Bhargava, J.)
951
Code of Criminal Procedure to quash proceedings being taken by
the police in pursuance of first information reports made to the
police.
However, the Priv)' Council made some remarks which
have been relied upon by the High Courts and are to the following effect :-
"In lndia, as has been shown, there is a statutory
right on the part .of the police to investigate the circumstances of an alleged cognizable crime without requiring
any authority from the judicial authorities, and it would,
as their Lordships think, be an unfortunate result if it
should be held possible to interfere with those statutory
rights by an exercise of the inherent jurisdiction of the
court. The functions of the judiciary and the police are
complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order
is only to be obtained by leaving each to exercise its own
function, always, of course, subject to the right of the
court to intervene in an appropriate case when moved
under s. 491 of the Criminal Procedure Code to give
directions in the nature of habeas corpus."
This interpreMion, to some extent, supports the view that the
scheme of the Criminal Procedure Code is that the power of the
police to investigate a cognizable offence is not to be interfered
with by the judiciary.
Their Lordships of the Privy Council were,
of course, concerned only with the powers of the High Court under
sec!ion 561A, Cr. P.C., while we have to interpret section 159 of
the Code which defines the powers of a Magistrate which he can
exercise on receiving a report from the police of the cognizable
offence under section 157 of the Code. In our opinion, section
159 was really int~nded to give a limited power to the Magistrate
to ensure that the police investigate all cognizable offences and do
not refuse to do so by abusing the right granted for certain limited
cases of not proceeding with the investigation of the offence.
Counsel appearing on behalf_ of the appellant urged that such
an interpretation is likely to be very prejudicial particularly to
Officers of the judiciary who have to deal with cases brought up
by the police and frequently give decisions which the police dislike. In such cases, the police may engineer a false report of a .
cognizable offence against the Judicial Officer and may then harass
hirri by cauying on a prolonged investigation of the offence made ·
out by the report. It appears to us that, though the Code of Cri- ·
minal Procedure gives to the police unfettered power to investigate
all cases where they suspect that a cognizable offence has been
committed in appropriate cases an aggrieved person can always
seek a rem~dy by invokil!g the power of .the High Court under Art.
952
SUPREME COURT REPORTS
(1970] 3 S.C.R.
226 of the Constitution under which, if the High Court could be
convinced that the power of investigation has been exercised by a
police officer mala fide, the ffigh Court can always issue a writ of
A
mandamus restraining the police officer from misusi.Dg his legal
powers. The fact tha~ the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police
cannot be a ground for holding that such a power must be read in
II
section 159 of the Code.
In the resuJt,.the decision of the High Court in this case must
be upheld, so that the appeal fails and is dismissed.
Y.P.
Appeal dism·issed.
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