These are the settled principles of law that the courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law; when spoken about judicial review, it is also necessary to be alive to the concept of judicial restraint; the principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of powers; Judges are expected to interpret any law as per the limits laid down in the law; it is the source of law which the judges are called upon to apply and that Judges, when apply the law, are constrained by the rules of language.
The provision of Section 19 of the Act (ibid) undoubtedly gives no power or authority to the Special Court to constitute a JIT or to issue a direction to the Government in this regard. The words “if the government deems necessary JIT to be constituted by the government” are meaningful which have excluded the Special Court to exercise such powers therefore it is the exclusive domain of the government to or not to constitute JIT.
We have also observed that in one of the Challans of this case on the top/heading it is written as: -
چالان زیر دفعہ 512 ض ف
We have noticed such heading almost in every Challan where accused is declared Proclaimed Offender. This is done not only by police officers and Prosecution but also by the courts. As this practice is illegal, so for this reason we consider it to hold that what the correct position of law is?
The word ‘investigation’ has been defined under Section 2(L) of Cr. PC, which is as under: -
“Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf”
The process of investigation starts on receipt of information of a cognizable or non cognizable offence (155 and 156 Cr. PC). In cognizable offence once FIR is recorded, a police officer requires no permission for investigation as he possesses all the powers under the law vested in him under Section 156 Cr. PC. The position however, is different when case relates to non-cognizable offence as the powers to investigate are dependent on authorization by the Magistrate (155 {2} Cr. PC). The moment he is allowed to exercise his authority, he starts enjoying all the powers to be exercised in cognizable cases except power to arrest the accused.
Once the ‘investigation’ starts, either in cognizable or non cognizable offence then it has to be concluded after observing all the legal formalities and the moment it is completed, a report under Section 173 Cr. P.C (Challan) is to be forwarded to a Magistrate in the form prescribed by the Provincial Government.
The words “every investigation’ used in Section 173 Cr.P.C are significant and leaves no room of doubt that it may be in cognizable or non-cognizable offence, the report (Challan) has to be submitted in a form prescribed by the provincial government.
So it is the absolute legal position that on conclusion of investigation report (Challan) is to be submitted only under Section 173 Cr. PC and it has nothing to do with Section 512 Cr. PC.
What the Section 512 Cr. PC is and when this provision plays its’ role?
The role under the above provisions is post to submission of report (Challan) and that too when it is before the court of competent jurisdiction because of the words used ‘the Court competent to try such person for the offence complained of”.
As after the words ‘offence complained of’ the word ‘may’ has been used, therefore, discretion to proceed under Section 512 Cr.P.C also lies with the court to be performed keeping in view the facts and circumstances of each case and in particular if court finds that there is no immediate prospect of arresting the absconder.
We have also observed that these proceedings are called “trial in absentia” which is not the correct approach. The general rule is that evidence has to be recorded in the presence of accused or in presence of his advocate/pleader, if his personal attendance is dispensed with whereas, proceedings under Section 512 Cr.P.C are exception to general rule with an aim to preserve the evidence so accused may not take advantage of his illegal act of absconding. This is fair part of rule of the game as it covers advantages for the prosecution that it may not be at defeating end because of some clever move by an absconder. This interpretation is based on the plain reading of Section 512 Cr.P.C where it is provided that the evidence so recorded may be given against accused on trial for the offence with which he is charged, if the deponent (witness) is dead or incapable of giving evidence etc.
We, therefore, direct that copies of this order shall be sent to Inspector General of Police and Prosecutor General of Punjab who shall circulate it to all the concerned with directions that this illegal practice to mention “Challan under Section 512 Cr. PC”
چالان زیر دفعہ 512 ض ف
shall be discontinued forthwith. Office is further is directed to send the copies of this order to all the judicial officers of the Punjab (including on ex-cadre) for their guidance and compliance in future.
Writ Petition No. 15433 of 2021)
Syed Riaz Husain Shah Versus Government of Punjab & 2 others
0 Comments