--Duty of S.H.O.--Cognizable offence--If a cognizable incident is reported to him--There is no question about it that whenever a person approached --

 PLJ 2022 Cr.C. 824

Criminal Procedure Code, 1898 (V of 1898)--

----S. 154--Duty of S.H.O.--Cognizable offence--If a cognizable incident is reported to him--There is no question about it that whenever a person approached --S.H.O., he has to record his statement but it is not necessary that in every case where a cognizable offence is reported to him, after recording same in prescribed book of Section 154, Cr.P.C., he or officer incharge is duty-bound to investigate it--Recording of F.I.R. and investigating same are two different aspects of initial stages of a criminal case--The investigation is a tedious job that needs considerable resources as such a highly doubtful and next to impossible criminal case doesn’t need to be investigated--There are certain other situations, which demand that criminal case should not be investigated--Hence, correct legal position is that if from face of such allegation of a cognizable incident and due to circumstances attached to Mcident, it becomes doubtful up to extent that S.H.O. is satisfied that incident does not require any investigation, he may avoid doing so--This power is given to S.H.O under Police Rules, 1934.                                       [P. 828] A

Cognizable Offence--

----Duty of S.H.O.--W hen there was only a direction for recording of statement and act accordingly if a cogni/able offence is made out--The reason is that as soon as a cognizable offence is reported, S.H.O. has no other option but to record F.I.R. as per verbatim of complainant for which he does not need any direction--Even if a cognizable offence comes into knowledge of S.H.O., he has to lodge F.I.R. on behalf of state, based upon his knowledge--Hence, whenever, there is only a direction recording of statement, compliance is done by recording statement and recording of F.I.R is a duty of S.H.O., in a cognizable case reported, which, in any case, he cannot refuse--However, after recording of statement, if S.H.O. considers that statement does not attract a cognizable incident, he may decline to lodge F.I.R--Nevertheless, after lodging of F.I.R. he may take further steps towards investigation by applying his intelligence and astuteness regarding reported incident Albeit, if after lodging F.I.R S.H.O or officer incharge has reasons to believe that incident is highly doubtful, he may refuse to investigate--Meaning thereby that in such a situation, is not necessary for him to arrest nominated accused, inspect place of incident, and record statements u/S. 161, Cr.P.C--Such powers to S.H.O. are given under Rule 24.4 of Police Rules, 1934.   [Pp. 828 & 829] B

Police Rules, 1934--

----R. 24.4(2)--From above provision of law, it is quite obvious that S.H.O. or incharge of police station is not duty-bound in every case to initiate investigation whenever a cognizable offence is reported to him--Conversely, if he has reasons to believe on basis of his information or intelligence that reported incident is doubtful, he may decline to investigate by himself or assigning same to any of his sub-ordinate but such information or intelligence, which has persuaded him that matter does not require investigation, should also be recorded in daily diary--The F.I.R. and daily diary having such record may be placed before superior officers of S.H.O. or incharge, as case may be, for further direction but in any manner, F.I.R. with daily diary or its extract should be placed before concerned Judicial Magistrate for any further order--Now a question arises, why legislature has given such power to S.H.O. or officer incharge of police station? The reason is obvious--The investigation, is a time-consuming job and it also needs considerable financial and human resources--The lawmakers have intention to save time and resources of investigating agencies in those cases, where incident is doubtful up to extent that it does not require investigation--No doubt, for reaching such a high degree of doubt, material and reasons urging to such a conclusion should also be produced before higher officers and judicial magistrate concerned It judicial magistrate is satisfied with material placed, lie may pass appropriate order including an order under famous disposal of a criminal case under A, B or C classes.          [P. 829] C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Police Rules, 1934, R. 24.4(2)--Such opinion of police, which indicates, that happening of alleged incident is highly doubtful--In existing position of affairs, Respondent No. 1 may approach S.H.O. concerned for recording of his statement but it does not mean that same should be investigated by S.H.O. or incharge of police station--The S.H.O. may refuse to do so if he considers that matter does not require investigation being false, frivolous, frolicsome as such same is highly doubtful--However, in such a situation, he has to act in accordance with provision of Rule 24.4 of Police Rules, 1934 described above--Counsel for respondent has articulated that this Court may issue direction for taking action u/S. 182, PPC against Respondent No. 1--No doubt, a false case is reported to S.H.O., or initiate a proceeding u/S. 182, PPC against informant but since such proceeding is falling within discretionary domain of S.H.O., as such no need to issue any direction in this regard--Whenever a direction is issued by an Ex-officio Justice of Peace for recording of statement and act accordingly then they may lodge F.I.R. but does not mention that F.I.R. is lodged on direction of a judicial officer.                                     [P. 830] D & E

Mr. Anwar Ali Lohar, Advocate for Applicants.

Mr. Muhammad Aslam Gadani, Advocate for Respondent
No. 1.

Mr. Aftab Ahmed Shar, Additional P.G. for State.

Date of hearing: 21.5.2021.

PLJ 2022 Cr.C. 824
[Sindh High Court, Sukkur Bench]
Present: Fahim Ahmed Siddiqui, J.
MASHEER AHMED and another--Applicants
versus
SABIR HUSSAIN SHAH and 2 others--Respondents
Crl. Misc. Appln. No. S-173 of 2021, decided on 21.5.2021.

Order

The applicants are claiming to be aggrieved with the order dated 16-03-2021 passed by Additional Sessions Judge-II, Ghotki in the capacity of Ex-officio Justice of Peace. Through the impugned order, the learned Ex-officio Justice of Peace has issued directions to Respondent No. 2 i.e. the SHO, PS A-Section, Ghotki for recording of statement of Respondent No. 1 and lodge F.I.R. if a cognizable offence is made out.

2. Mr. Anwar Ali Lohar, representing the applicants, submits that while passing the impugned order, the learned Ex-officio Justice of Peace has overlooked the report submitted by the S.H.O. concerned as well as by the DSP, Complaint Redressal Centre, Ghotki. According to him, both the officials have categorically stated that the contents of the application filed by Respondent No. 1 are false and no alleged offence was taken place. He continues to argue by emphasizing upon the said reports filed before the learned Ex-officio Justice of Peace and submits that if the respondent. 1 will record the statement based on the false allegation, the applicants will be highly prejudiced, as the S.H.O. will be under obligation to lodge FIR on such false statement. According to him, Respondent No. 1 has leveled a false allegation of committing sodomy by the applicants with the nephew of Respondent No. 1 namely Farhan Haider. According to him, the real facts are suppressed by Respondent No. 1 as the said Farhan Haider has committed theft of a mobile phone and a motorbike from the shop of the applicants, and when they put pressure to return the same, a false story is fabricated with malice and ulterior motives.

3. Mr. Muhammad Aslam Gadani, learned counsel for Respondent No. 1 supports the impugned order. He submits that his client has faced highhandedness and it is his right to get F.I.R. lodged regarding the incident. According to him, the S.H.O. is duty-bound to record the statement and he is also duty-bound to lodge F.I.R. He further submits that if the contents of F.I.R, so lodged proved to be false, the S.H.O can initiate proceeding against Respondent No. 1 u/S. 182, Cr.P.C. and this Court may issue such directions to the S.H.O.

4. Mr. Aftab Ahmed Shar, the learned Addl. P.G, submits that the allegations are serious but at the same time the report of S.H.O. and Complaints Cell are also meaningful. However, he contends that after recording the statement of the Respondent No. 1, the same doesn’t need to become the basis for the arrest and humiliation unless concrete evidence is available with the police.

5. I have heard the arguments and have gone through the available record. Although it is alleged by Respondent No. 1 that the applicants have caught hold of his nephew namely Farhan Haider and tying his legs while one of them was committing sodomy with him. Allegedly at that time, the shutter of their shop was half down while the date and time of the incident are mentioned as March 7, 2021, at 07:30 hours. The counter allegation against Respondent No. 1 is that his nephew has stolen a mobile phone and motorbike from the shop of applicants. The allegations leveled from both sides are no doubt serious in nature but at the same time, it should also be considered that not only S.H.O. but also the incharge of district complaint cell are not ready to swallow the story narrated by Respondent No. 1. It seems that Respondent No. 1 has not acted promptly and he did not try to get his F.I.R lodged or even he did not approach the medico legal officer with the narration of the incident. If such a thing was done, the medico legal officer must have called the S.H.O. to report a medico legal case directly brought to him.

6. The S.H.O. is supposed to act promptly if a cognizable incident is reported to him. There is no question about it that whenever a person approached the S.H.O., he has to record his statement but it is not necessary that in every case where a cognizable offence is reported to him, after recording the same in the prescribed book of Section 154, Cr.P.C., he or the officer incharge is duty-bound to investigate it. I am of the view that the recording of F.I.R. and investigating the same are two different aspects of the initial stages of a criminal case. The investigation is a tedious job that needs considerable resources as such a highly doubtful and next to impossible criminal case doesn’t need to be investigated. There are certain other situations, which demand that the criminal case should not be investigated. Hence, the correct legal position is that if from the face of such allegation of a cognizable incident and due to circumstances attached to the incident, it becomes doubtful up to the extent that the S.H.O. is satisfied that the incident does not require any investigation, he may avoid doing so. This power is given to the S.H.O under the Police Rules, 1934.

7. Another aspect of the case needs consideration that whenever an Ex-officio Justice of Peace issues directions to the S.H.O. for the recording of the statement of an applicants, it does not ipso facto mean that it is a direction for registration of F.I.R. I have seen in plenty of F.I.Rs that the scribe of the F.I.R. in the relevant column used to write that this F.I.R. is lodged on the direction of some Sessions Judge or Additional Sessions Judge. It appears that a good number of applications u/S. 22-A for lodging F.I.R. is made with the consent of the area police due to various reasons and with some ulterior motives. In those cases, the police try to shift responsibility by seeking directions, which in such cases are sometime misused. Such practice is not appreciable hence it is directed that wordings for lodging F.I.R. on the direction of a judge in the relevant column of F.I.R. should only be written when there is a specific and clear-cut direction for registration of F.I.R., otherwise it should be avoided when there was only a direction for the recording of the statement and act accordingly if a cognizable offence is made out. The reason is that as soon as a cognizable offence is reported, the S.H.O. has no other option but to record the F.I.R. as per verbatim of the complainant for which he does not need any direction. Even if a cognizable offence comes into the knowledge of the S.H.O., he has to lodge F.I.R. on behalf of the state, based upon his knowledge. Hence, whenever, there is only a direction for the recording of the statement, the compliance is done by recording the statement and recording of F.I.R is a duty of the S.H.O., in a cognizable case reported, which, in any case, he cannot refuse. However, after recording of the statement, if the S.H.O. considers that the statement does not attract a cognizable incident, he may decline to lodge F.I.R. Nevertheless, after the lodging of F.I.R. he may take further steps towards the investigation by applying his intelligence and astuteness regarding the reported incident Albeit, if after lodging F.I.R the S.H.O or officer incharge has reasons to believe that the incident is highly doubtful, he may refuse to investigate. Meaning thereby that in such a situation, is not necessary for him to arrest the nominated accused, inspect the place of the incident, and record statements u/S. 161, Cr.P.C. Such powers to the S.H.O. are given under Rule 24.4 of the Police Rules, 1934 which reads as under:

“24.4 Action when the report are doubtful.--(1) If the information or other intelligence relating to the alleged commission of a cognizable offence, is such that an officer in charge of a police station has reason to suspect that the alleged offence has not been committed, he shall enter the substance of the information or intelligence in the station diary and shall record his reasons for suspecting that the alleged offence has not been committed and shall also notify to the informant, if any, the fact that he will not investigate the case or cause it to be investigated.

(2) If the Inspector or other superior officer, on the receptor of a copy of the station diary, is of opinion that the case should be investigated, he shall pass an order to that effect, and shall, in any case, send on the diary or any extract therefrom to the District Magistrate for his perusal and orders.”

8. In sub-rule 2 of Rule 24.4, the word ‘District’ becomes redundant after the abolition of district magistracy and now it means the Area Magistrate. From the above provision of law, it is quite obvious that S.H.O. or incharge of the police station is not duty-bound in every case to initiate the investigation whenever a cognizable offence is reported to him. Conversely, if he has reasons to believe on the basis of his information or intelligence that the reported incident is doubtful, he may decline to investigate by himself or assigning the same to any of his sub-ordinate but such information or intelligence, which has persuaded him that the matter does not require investigation, should also be recorded in the daily diary. The F.I.R. and the daily diary having such record may be placed before the superior officers of the S.H.O. or incharge, as the case may be for further direction but in any manner, the F.I.R. with the daily diary or its extract should be placed before the concerned Judicial Magistrate for any further order. Now a question arises, why the legislature has given such power to the S.H.O. or the officer incharge of the police station? The reason is obvious. The investigation, is a time-consuming job and it also needs considerable financial and human resources. The lawmakers have the intention to save the time and resources of investigating agencies in those cases, where the incident is doubtful up to the extent that it does not require investigation. No doubt, for reaching such a high degree of doubt, the material and reasons urging to such a conclusion should also be produced before the higher officers and judicial magistrate concerned. If the judicial magistrate is satisfied with the material placed, he may pass appropriate order including an order under the famous disposal of a criminal case under A, B or C classes.

9. In the present case, it is strongly argued that the S.H.O. and the District Complaint Cell of the Police Department, have categorically stated that no such incident has taken place. The learned counsel has also drawn attention towards, such opinion of the police, which indicates, that the happening of the alleged incident is highly doubtful. In the existing position of affairs, Respondent No. 1 may approach the S.H.O. concerned for the recording of his statement but it does not mean that the same should be investigated by the S.H.O. or incharge of the police station. The S.H.O. may refuse to do so if he considers that the matter does not require investigation being false, frivolous, frolicsome as such the same is highly doubtful. However, in such a situation, he has to act in accordance with the provision of Rule 24.4 of the Police Rules, 1934 described above. The learned counsel for the respondent has articulated that this Court may issue direction for taking action u/S. 182, PPC against Respondent No. 1. No doubt, it a false case is reported to the S.H.O., or the initiate a proceeding under Section 182, PPC against the informant but since such proceeding is falling within the discretionary domain of the S.H.O., as such no need to issue any direction in this regard.

10. With these observations, the instant application is disposed of while S.H.O is directed to record the statement of Respondent No. 1 but it does not mean that the same should compulsorily become a cognizable criminal case required proper investigation. All the S.H.Os in the province are directed whenever a direction is issued by an Ex-officio Justice of Peace for the recording of statement and act accordingly then they may lodge F.I.R. but does not mention that the F.I.R. is lodged on the direction of a judicial officer. These words can only be inserted in the relevant column of F.I.R, if there is a clear-cut direction issued to SHO regarding the same i.e. when a judge, after applying his judicial mind, has concluded that a cognizable offence has

really taken place. The learned Sessions Judges in the province are directed to communicate this direction to the SSPs of their district and to keep a vigilant eye in this respect.

(A.A.K.)          Application disposed of