Registration and investigation of a case has been brought under challenge through this writ petition. Learned counsel has contended that as issue in a civil suit having been framed with regard to the same subject matter, which is sought to be investigated by the police, it is not lawful for the police either to register a case or investigate the same; that the civil Court concerned is alone competent under section 476, Cr. P. C. To try the accused and in case it decides not to try, it can send the case for trial to another Court under section 476-A, Cr. P. C. Proceeding on the above premises, learned counsel has raised other ancillary arguments that it would amount to contempt 'If the police comments upon the same subject which is pending consideration before the civil Court; that the law does not provide for any way out for the police to deal with various aspects of the investigation. For example, submissions of reports and challans before a Court competent to try the accused. The precise argument being that the ordinary procedures provided in the Criminal Procedure Code for the police to follow, in any ordinary investigation cannot be followed in cases like the present one because the Courts other than the civil Courts would not be competent to take cognizance of the case. Learned counsel also contended that the police cannot. Investigate the case unless the Civil Court decides to take action against the accused. Learned counsel in this behalf relies on the provisions contained in sections 195, 476 and 476-A, Cr. P. C.
2. The F. I. R. (Annexure D) is an interesting and important document. The complainant's version is that the petitioner, after having failed before all authorities in all proceedings tried to use a forged agreement for claiming ownership. It is also mentioned in para. 5 of the writ petition that the matter having earlier been before the Rent Controller, petitioner's appeal is now pending in the High Court. The F.1. R. Is dated 22-8-1977 while the suit was filed on or about 20-4-1977. It is not disclosed in the petition as to when the written statement was filed but the date of the framing of the controversial issue regarding "forgery" is mentioned as I-IC-1977. It is in the above context that the above arguments have been advanced.
3. A similar question was dealt in Muhammad Hayat v. The Chief Settlement and Rehabilitation Commissioner and another (PLD 1970 Lah. 679). Argument was raised that unless a complaint is made by a specified person the police could not register and investigate the case. Reliance in that case was placed on section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which contains the same phrases as are used in section 195, Cr. P. C. It provided that "no Court shall take cognizance" of any offence punishable under the said Act except on the "complaint in writing" made by an officer appointed under that Act. It was held that: "The reading of this section shows that it deals with the cognizance of offences by the Court and not with the registration or investigation of cases. There is no bar to the registration of a case by the police on the application or report of any person. He may or may not be an officer appointed under the Act. The bar is only in respect of the taking of cognizance of the offences by the Court. It will be only at that stage that the petitioner may have any grievance, if it is found that the prosecution in the Court is not launched by a competent person. That stage has not yet reached in this case". In the present case also a similar situation has arisen. Under section 195, Cr. P. C. The Court trying the suit, as argued, would be competent to file the complaint in writing with a view that the Criminal Court competent to try the case should take cognizance thereof. But section 195, does not bar the registration and investigation of cases falling within its ambit. What would happen in such like case is that after the investigation is complete the police would make reference to the Court concerned and it would then be open for that Court to file or not to file a complaint. It is only when a complaint is filed that the Criminal Court competent to try the offence would be able to take cognizance of the matter.
Section 476, Cr. P. C. As amended has not made much difference.
I do not agree with the learned counsel that the Court originally dealing with the matter, say a civil Court, is by virtue of section 476, Cr. P. C. Exclusively empowered to try such an offence. It is provided in sub- section (t) thereof that "the Court may take cognizance of the offence", If it decides otherwise, it can send the case to another Court, Subsection (1) of section 476-A, Cr. P. C.
Makes it more clear. It provides that such Court may forward the case "to a Court having jurisdiction to try the case". This shows that ordinary criminal Courts which have jurisdiction to try the case would remain competent and ready to try the case but would not be able to try the same and take cognizance unless and until provisions contained in section 195 and section 476-A, Cr. P.
C. Are complied with. Thus, "such Court", I.e., Civil, Revenue or Criminal Court, as is referred to in sections 476 and 476-A, Cr. P. C. Is not the only Court competent to take cognizance of the offence concerned. Under section 476-A, Cr. P. C. Another Court to which the h the case is forwarded would also be competent to try and punish the offender.
4. The procedural aspects visualized by the learned counsel do not present any real impediment in so far as the ultimate 'taking cognizance' by a Court is concerned. So long as the complaint is not filed as is, provided under section 195, Cr. P. C. The Magistrate's Court would deal with the questions of remand, receiving of reports, grant of bail and even the 'mere formal receiving of the challan' as distinguished from 'taking a cognizance of the case'. As held above the Magistrate would not be competent to take cognizance without the procedural formalities provided in sections 195 and 476-A, Cr. P. C. This mythology is not unknown to criminal procedure. The other apprehension expressed by the learned counsel is that the police might, without any intention to do so, commit contempt of "such Court" by making comments on a subject which is still to be decided by that Court. If such a comment is permitted by the authority of law dealing with crime and its punishment, the law of contempt would be interpreted and applied accordingly. The argument of the learned counsel if extended to its logical ends would produce extraordinary results. Any person intending to frustrate a case of cheating and forgery would be able to prevent the investigating agency from submitting the challan on the assumed fear of contempt of civil Court.
5. I have also examined the case from various angles of interference with police actions discussed in the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind & Baluchistan and another (PLD 1971 SC 677 ). The restricted scope, which it appears to have been opened therein for interference, after due caution "may be possible" only qua clear lack of jurisdiction and mala fides of the investigator/police, as distinguished from private parties, cannot be interpreted to have laid down a basis of routine examination of such like matters in writ jurisdiction of this Court. The parties should pursue the ordinary remedies both under the Criminal Procedure Code and other laws including the police rules.
6. In view of what is stated above, there is no force in this petition and the same is dismissed in limine.