' These two petitions filed by the State, one under Article 199 of the Constitution (Writ Petition No, 2961 of 1978) and the other under section 561-A, Cr. P. C. (No, 493/M of 1978), arise out 'of the same case and are, therefore, being disposed of together.
2. A case under section 302, P. P. C., was registered on 23-4-78 on the statement of Abbas Ali Shah respondent. The deceased Naseem Akhtar was his daughter and the accused named by him, his son-in-law, Muhammad Afzal Shah. According to the F. I. R., she died instantaneously on a rifle shot fired by the accused, hitting her on the head-the brain matter had also come out. The occurrence is said to have been witnessed by eyewitnesses, including the first informant. During investigation, bloodstained cement plaster scrappings from the spot and the rifle from the accused have, amongst other, been taken into possession:
3. The Investigating Officer prepared the injury statement and inquest report and sent the dead body for autopsy to mortuary. Prior to the post-mortem examination, Akbar Ali Shah respondent moved an application (addressed to A. D. C. (G)) before the Duty Magistrate, requesting that post- mortem examination be dispensed with and that only the external examination be dispensed with and that only the external examination of the head injury would be enough. The learned Magistrate, after examining some witnesses, passed order on the same day, i,e,, 24-4-78, directing that "the post-mortem of the deceased should not be held", because, as he put it, "the case has been probed thoroughly". Thus, the dead body was accordingly buried on the same day without post- mortem or even an external medical examination by a doctor. The Investigating Officer moved an application under section 176 (2), Cr. P. C., again, requesting disinterment of the dead body for post-mortem examination, on 25-4-78. The learned Magistrate passed an order on the same day permitting disinterment of the body and post-mortem thereof, under his own supervision. It reads as follows: {{URDU TEXT}}
4. Akbar Ali Shah respondent filed revision petition under section 439-A, Cr. P. C., for reversal of the order of learned Magistrate dated 25-4-78. It was marked to a learned Additional Sessions Judge who allowed the same, vide judgment dated 2-5-78. As second revision is barred under section 439 (4), therefore, these two petitions under extraordinary and inherent jurisdiction of this Court.
5. Learned Additional Sessions Judge, in a well-considered and elaborate judgment, decided that the first order by the learned Magistrate dated 24-4-78 prohibiting the post-mortem examination was unexceptionable. The concluding part of the judgment reads as follows :- "To save the parties from future litigation and keeping in view the dispute in this regard particularly when the controversy in hand stands entrusted to this Court, I embark upon to make an analysis of the earlier order dated 24-4-1978 passed by Ch. Altaf Hussain Duty Magistrate 1st Class, Gujrat restraining the autopsy upon the dead body of Mst. Naseem Akhtar. I do not agree with the learned Public Prosecutor who pointed out that the police has been condemned unheard in the matter. The report of the S. 1-1. O., P. S. Saddar, Gujrat and D. S. P., Gujrat were before the learned Magistrate who held inquiry by recording the statements of Syed Akbar Ali Shah and Syed Noor Hussain Shah. He being the Duty Magistrate was the nearest Magistrate empowered to hold the inquest within the purview of section 174, Cr. P. C. And he was the sole Incharge for the purpose. He considered the matter in a salubrious, legal and proper manner. He considered the view points of the parties. He recorded the statements of the complainant of the case who is none else than the father of the deceased and he (complainant) expressed his desire on oath before him not to get conducted autopsy on the dead body of her daughter Mst. Naseem Akhtar. He properly appreciated the fact that the complainant was a Syed who did not want to get conducted the post-mortem examination on the dead body of his daughter. The desire in the matter was not expressed before the learned Magistrate by a third party. Hence the discretion used by Ch. Altaf Hussain Duty Magistrate 1st Class, Gujrat on 24.4-1978 in favour of the complainant (petitioner) is not arbitrary which is rather justified and bona fide. Obviously in the eyes of law the use of the said discretion can be looked into and analysed by the Court of Session. There is no justification on the part of the police to question the same. In the circumstances before me the learned Duty Magistrate which have been looked into minutely by this Court no exception can be taken to the said order dated 24-4-78 passed by Ch. Altaf Hussain Duty Magistrate 1st Class, Gujrat, and I affirm the same."
6. In. An earlier part of the impugned judgment, learned Additional Sessions Judge had, while dealing with the order of the learned Duty Magistrate dated 25-4-78, which was assailed before him, held as follows "Obviously the death of Mst. Naseem Akhtar has not been caused in suspicious circumstances and it is not the stand of the police that some other person has committed her murder. It is a single accused case. It is the initial case of the complainant-petitioner that with 7 mm rifle her daughter Mst. Naseem Akhtar was murdered by Syed Muhammad Afzal Shah who fired at her once only which hit her head. This fact is also incorporated in the injury statement and the inquest report prepared by the Investigating Officer at the initial stage. It is contained in the F. I. R. That the cause (motive) of death of Mst. Naseem Akhtar is her strained relations with her husband Syed Muhammad Afzal Shah accused. Further the religious sentiments of Syed Akbar Ali Shah petitioner who is a Syed have also stolen the eminence before me. I, therefore, cannot sustain the impugned order dated 25-4-1978."
' It has to be mentioned here that in the opening part of the impugned judgment, learned Judge had noted that "on 23-4-1978 at 7-15 p.m. Syed Muhammad Afzal Shah accused fired with a rifle at his wife Mst. Naseem Akhtar in his house while she was at the stairs to go up and the said accused was on the second floor. The occurrence was seen by Syed Akbar Ali Shah petitioner (father of Mst.
Naseem Akhtar) and Syed Mazhar Mustafa Shah. The bullet had hit the head of Mst. Naseem Akhtar who died there and then. At 8 p.m. On the same date i,e, on 23-4-1978 Syed Akbar All Shah made the report to the police and F. I. R. No, 116 dated 23-4-1978 was registered at P. S. Saddar, Gujrat under section 302. P. P. C. Mr. Amir Ahmad S. H.
0. Reached the place of occurrence. He took into his possession the dead body of Mst. Naseem Akhtar who prepared the injury statement and found one fire-arm injury in-between the right eye and right ear. The brain had come out of the skull. He also prepared the inquest report thereafter (on 23-4-1978) and in Column No, 10 mentioned the same injury. In Column No, 12 of the inquest report he incorporated that the injury was caused with a fire-arm. He sent the dead body to the mortuary for autopsy. He took into possession some pieces of cement floor containing the blood and sealed those into a parcel. He prepared a memo. In this regard. Vide another memo. He took into possession one 7 mm rifle, 4 cartridges and one crime empty on 23-4-1978 which were produced by Syed Muhammad Afzal Shah accused. On 24-4-1978 he took into possession the licence in respect of the keeping of the said rifle issued in favour of Syed Muhmood All Shah, father of Syed Muhammad Afzal Shah accused.
7. The following provisions contained in the Criminal Procedure Code and the Police Rules have been read and relied upon from both the sides :- (Cr. P. C.)
"174. Police to inquest and report on suicide, etc.-(1) The Officer-in-Charge of a Police Station or some other Police Officer specially empowered by the Provincial Government in that behalf, on receiving information that a person-
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by machinery, or by an accident, or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such Police Officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate.
(3) When there is any doubt regarding the cause of death, or when for any other reason the Police Officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(5) The following Magistrates are empowered to hold inquests, namely any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, and any Magistrate especially empowered in this behalf by the Provincial Government or the District Magistrate.
176. Inquiry by Magistrate into cause of death.-(I) When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall and, in any other case mentioned in section 174, clauses (a), (b) and (c) of subsection (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the Police Officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.
(2) Power to disinter corpses.-Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interfered, in order to discover the cause of his death, the Magistrate may, cause the body to be disinterred and examined."
(Police Rules, Vol. III)
"25.34. Disinterment of bodies.-The following rules relate to the disinterment of bodies :-
(1) An Officer-in-Charge of a Police Station and any superior Police Officer lawfully making an investigation into the unnatural or sudden death of any person shall, on learning that the body of the deceased person has been formally buried, record in writing the information which has reached him and the grounds he considers it necessary that the body should be disinterred.
(2) He shall forward the information so recorded to the nearest Magistrate empowered to hold inquests and ask for an order under section 176 (2), Code of Criminal Procedure, and in the meantime shall guard the grave.
(3) On receipt of such order, if the Magistrate himself does not attend the disinterment, such Police Officer shall, in the presence of two or more respectable inhabitants of the neighborhood, cause the body to the disinterred. Such Police Officer shall then comply with the provisions of section 174, Code of Criminal Procedure.
(4) Police Officers shall invariably examine witnesses to prove the identity of disinterred bodies before commencing their investigation.
(5) When a body has laid in the grave for a period exceeding three weeks no disinterment shall be made by any Police Officer until the opinion of the District Health Officer has been obtained, and then only with the concurrence of the District Magistrate.
25.36. Post-mortem examination-When and by whom held.-(1) The legal requirements in respect of post-mortem examination by a qualified surgeon are contained in section 174 (3), Code of Criminal Procedure. In every case where death appears to have been due to suicidal, homicidal, accidental or suspicious causes, and where any doubt exists as to the exact cause of death, or if it appears to the officer conducting the investigation-whether under section 157 or section 174, Code of Criminal Procedure-expedient to do so, the body shall be sent to the nearest Medical Officer authorized by the Provincial Government to conduct post-mortem examinations. The sending of bodies for examination may only be dispensed with where such action is otherwise required when conditions exist, such as advanced putrefaction, which would clearly make examination useless.
(2) An Investigating Officer is empowered by law with the discretion to dispense with a surgical examination of the body-(a) if he is fully satisfied that the cause of death is established beyond doubt, (b) in the circumstances described at the end of the proceeding sub-rule. In regard to the former condition, it must be remembered that the existence of an apparently fatal wound does not necessarily establish the cause of death. In cases where investigation establishes the accidental nature of the event which led to the death and the history of the deceased and of the case suggests no reason to suspect that expert examination of the body will reveal any cause of death other than the apparent one, such examination may be dispensed with. In all cases where suspicion exists that the death was due either to suicide or to an act rendering the perpetrator thereof liable to a criminal charge the body must be examined by a qualified Medical Officer, if possible.
(3) The law requires that the body shall be sent to the nearest qualified Medical Officer, and the orders of the Provincial Government prohibit the summoning of such officer to conduct his examination at or near the scene of the death save in exceptional cases. These may occur, where, owing to advanced putrefaction or the circumstances in which the corpse was found, movement of the corpse may make it impossible for the Medical Officer to form a correct opinion as to the nature of the injuries or the exact cause of death. In such cases if the Investigating Officer considers expert post-mortem examination essential in the interests of justice, he shall report the facts by the most expeditious means available to the Superintendent of Police or Gazetteer Officer in charge of the case, with a request that a qualified officer shall be sent to the spot. If the officer receiving this report endorses the opinion of the Investigating Officer, he shall request the District Magistrate or the next Senior Magistrate in the absence of District Magistrate from headquarters to give orders for the medical examination of the body at the scene of death.
(4) In cases where it is impossible either to send a body to a qualified Medical Officer, or to have it examined by such officer on the spot, the Investigating Officer may, at his discretion, request the nearest Government Medical Officer, even though such officer be not authorized to conduct post- mortem examination, to assist him with his anatomical and other expert knowledge in estimating the effects and causes of injuries, etc. Such Medical Officers are not empowered to perform any operation on the body. Medical Officers of the Irrigation and Public Health Departments and of local bodies cannot be called upon in this connection unless they have been specially authorized by the Provincial Government to undertake medico-legal work (vide rule 25.19)."
' A passing reference was also made by the learned counsel for the respondent to the Coroners Act, 1871, but he did not rely upon the same.
8. Learned counsel for the State, assisted by the P. D. S. P. And the S. H. O., relying on Emperor v.
Khwaja Nazir Ahmad (1), argued that the Courts should not interfere with the police investigation processes. He also contended that the Investigating Officer having come to the conclusion that the post-mortem examination was necessary, it was not open to the learned Magistrate, nor to the learned Additional Sessions Judge, to hold otherwise. In this connection, he pointed out that disinterment of dead body could be refused only tinder two conditions : (1) en account of advanced putrefaction and (ii) when the cause of death, is established beyond doubt. According to him, none of these conditions were satisfied. He also, agreeing with the learned Additional Sessions Judge, argued that the second order of the learned Magistrate dated 25-4-78, being in the nature of review, is barred by section 369, Cr. P. C. His attack on both the orders of the learned Magistrate, .Presumably, is with a view to preserve the power of the Investigating Officer to decide about these matters. And because the Investigating Officer had decided firstly for the post- mortem examination of the dead body and, after its burial, for the disinterment thereof, therefore, according to the learned counsel, the interference by the learned lower Courts, merits removal by the High Court in its extraordinary and inherent jurisdiction.
9. Learned counsel for the contesting respondent, i,e,, the father of the deceased who also is the first informant in the murder case, contended that there is no doubt with regard to the cause of death and that, at present stage, the dead body must have putrefied to an advanced stage ; therefore, no useful purpose would be served now, by directing disinterment and post-mortem examination. He vehemently contended that the learned Magistrate was competent under section 174/176, Cr. P. C., to prevent the post-mortem examination, because, he has superior authority than that of the Investigating Officer and further that he is the supervising Court in this behalf. He having passed order prohibiting the post-mortem examination, could not subsequently reverse the same.
The bar of review under section 269, Cr. P. C. Was also pressed in this behalf. He also argued that the disinterment under section 176 (2) was permissible only if the dead body was buried before the lodging of information with the police with regard (1) AIR 1945 P C 18 to death, as is provided in section 174 (1). In the end, he emphasized that the Additional Sessions Judge having ,exercised revisional power vesting in him under section 439-A, Cr. P. C., there is not enough justification for interference by the High Court-neither in writ jurisdiction nor under section 561-A, Cr. P. C.
10. One simple question which arose indirectly can be answered straightway. Although there are some old rulings showing as if orders passed under section 174 and/or section 176, Cr. P. C., are administrative in nature, therefore, not revisable under section 439, Cr. P. C., but recent authority on this question, particularly from our own High court, is to the contrary. Dissenting from an Indian authority from East Punjab High Court, this Court held in Muhammad Anwar v. Sheikh Qurban Ali and 3 others (1) that the aforesaid orders are passed in exercise of judicial functions, therefore, they are revisable. There is a Division Bench ruling of erstwhile West Pakistan High Court (Lahore) which also supports the same view-see Khuda Bakhsh v. Province of West Pakistan and another (2). I am in respectful agreement with the views expressed in this behalf in the rulings of Muhammad Anwar and Khuda Bakhsh. I may add that although the word "inquest" used in sections 174 and 176, Cr. P.
C., has not been defined in the Code, it carries particular significance when the same is conducted by a Magistrate. Subsection (5) of section 174 provides only that the District Magistrate, a Sub- Divisional Magistrate or Magistrate of the 1st Class and any other Magistrate specially empowered in this behalf can hold inquests. Subsection (1) of section 176 gives an indication as to what would be the ordinary procedure in conducting the inquest. It is necessary for the Magistrate, when holding an enquiry as a part of the inquest, to "record the evidence taken by him in connection therewith", in an of the manners prescribed in the Code of Criminal Procedure for conducting enquiries. The choice from amongst "the manners" has been left to the Magistrate and it would depend upon the circumstances of each case. Thus, the Magistrate, when holding an inquest, would be making an "enquiry" in accordance with the provisions of the Criminal Procedure Code and, thus, it would, all the more, make it a judicial function. Any order passed as a result of such an enquiry would, obviously, be revisable. It is needless to emphasize that the power to be exercised under subsection (2) of section 176 for disinterment of the body is a part of the jurisdiction conferred on the Magistrate to hold inquests. If the entire process of the inquest is to be conducted as an enquiry, then the disinterment of the body would also form part of the enquiry and any order passed in this behalf would also be a judicial function. Looked at from this angle also, the orders dated 24-4-78 and 25-4.78 passed by the learned Magistrate in this case have to be treated as judicial orders and the learned Additional Sessions Judge could decide the revision and pass the judgment, which has been impugned in these petitions.
11. The next legal question which needs determination is whether a Magistrate can pass an order prohibiting the post-mortem examination of a dead body if the case falls in any of the clauses (a),
(b) and (c) of subsection (1) of section 174, Cr. P. C. As already pointed out, the word "inquest" has not been defined. One meaning thereof has already been discussed in the preceding paragraph.
Another composite meaning assigned to this word can be found in the ruling of Khuda Bakhsh.
Their Lordships of the Division Bench were pleased to observe in this behalf as follows :- " ...... ...What is intended is that the Magistrate should prepare a report (1) 1973 P Cr. L J 882 (2) PLD 1957 Lah. 662 as to the apparent cause of death of the deceased person, mentioning the wounds etc., found on the body and the weapons which appear to have been used for causing the injuries which have resulted in fatality."
Subsection (1) of section 176 gives a clear indication that the power of the Magistrate to hold inquest in cases other than those in which the person dies in the custody of the police is "either instead of, or in addition to, the investigation held by the Police Officer". This "investigation" is provided in subsection (1) of section 174 and is in the nature of an inquest and that is why, when the Investigating Officer in the process of the said investigation draws a report of the apparent cause of death describing wounds, fractures, etc., as also the manner and weapon by which such marks appear to have been inflicted, the process is described as inquest. Thus, the "investigation" under section 174 (1) or the "enquiry" under section 176 (1) is in reality, the inquest and although the procedure for the police might be different from what the Magistrate has to do during the enquiry, the object remains the same as described above. Subsection (3) of section 174 provides for occasions when a Police Officer, "conducting investigation in the nature of an inquest", might not consider it expedient to get the post-mortem examination performed by the competent doctor, of course, subject to, as provided therein, the rules framed by the Provincial Government in this behalf.
This power to get the post-mortem done or not done emanates from the power of the Police Officer to conduct investigation in the nature of inquest. The Magistrate, when acting under subsection (5) of section 174 or under section 176 (1), which is in some ways an extension of section 174 (5), would have at least the same power, if not more, as the Police Officer has under section 174.
It would not be possible to imagine that the Magistrate would not have the power, when holding the enquiry in the nature of inquest, to direct the post-mortem examination and if he has the power, without there being express provision in this behalf, to order C post-mortem examination, it would be legitimate to spell out a power from the same provisions to direct otherwise-not to hold the post-mortem examination on similar grounds as are mentioned in section 174, Cr. P. C. It is, therefore, held that the order passed by the learned Magistrate on 24-4-78 in this behalf prohibiting the post-mortem examination was within his competence. The analysis of the provisions of the Police Rules (rule 25.34 and 25.36) framed in this behalf does not lead to any different conclusion. The power spelled out above, exerciseable by the nearest Magistrate can, as provided in subsection (5) of section 174, also be exercised by a District Magistrate, Sub-Divisional Magistrate or a Magistrate of the 1st Class as also by any Magistrate specially empowered in this behalf. This would show that the District Magistrates have also the power to pass orders, as have been visualized above.
12. Linked with the foregoing discussion is the question whether a Magistrate, once having passed an order, can modify the same and whether the resultant order would not be hit by the bar of review contained in section 369, Cr. P. C. In order to resolve this controversy, it would be of advantage to cite some rulings of the superior Courts on similar questions. One relates to the exercise of power under sections 497 and 498, Cr. P. C., relating to bail from time to time, as and when fresh facts and circumstances are disclosed. The second category of rulings relates to the question of multiple investigations and results thereof in the same case-see Gulzar Hassan Shah v.
Ghulam Murtaza PLD 1970 SC 335.
(ii) Alam Din v. State PLD 1975 Lah. 304 ; Ata Mohammad v. Inspector-General of Police, West Pakistan, Lahore and others PLD 1965 Lah. 734; Muhammad Hayat v. Chief Settlement and Rehabilitation Commissioner and another PLD 1970 Lah. 679 and Muhammad Niwaz v. The State 48 Cr. L J 774.
It is clear from the rulings noted in the second category that the police can conduct more than one investigations in the same case, of course, depending upon the circumstances of each case, justifying such an extraordinary act. If two investigations can be done, then the inquest being a part of the investigation, a process included therein (inquest) can also be conducted more than once, provided the circumstances justifying the same. For example, one post-mortem examination by one doctor would not bar by another post-mortem by another doctor or a Board of Doctors.
Similarly, after one general post-mortem has been done, there will be no bar to a part of the post- mortem being done by a different specialist, say, in anatomy or pathology. Again, if a police officer, acting under subsection (3) of section 174, during one investigation comes to a conclusion that post-mortem examination is not necessary, he may come to a different conclusion during the other investigation and may seek the post-mortem examination before the burial or, with due observance of procedural requirements in this behalf, after the burial. That would involve disinterment of the body. If the police officer, during the investigation can ask for more than one post-mortem examinations and resultant inquests in the same case and has also the power, having once decided not to seek post-mortem, to subsequently get it done ; the Magistrate can also exercise similar power which is deducible as already discussed, from the combined reading of sections 174 and 176, Cr. P. C. He can, after having passed the order prohibiting postmortem examination, on disocvery of new facts, direct the conduct of such an examination and vice versa.
Accordingly, the necessary corollary that would follow in this case is that the learned Magistrate having passed the order on 24-4-78 prohibiting the post-mortem examination, was competent, under the above spelled out conditions, to pass fresh order on 25-4-78 for disinterment of the body and its autopsy under his supervision. His action was not beyond his jurisdiction. The other ruling (of the Supreme Court) relating to bail would also, support the above conclusion. If a learned Magistrate having once exercised his power under section 174 and/or 176, if new circumstances emerge, exercises the same power, this would not be a review of his earlier judgment. The foregoing discussion would apply to the questions relating to post-mortem as also burial and disinterment of the body.
13. Another question which also arises from the combined reading of sections 174 and 176, Cr. P. C., has presented some difficulty. According to the learned counsel for the respondent, the Magistrate exercising the powers under those provisions can also control and supervise the exercise of powers by the police under section 174, Cr. P. C. On first reading, there does not appear to be any support for this view. Had it been so, it could have been specifically provided in either section 174(5), or section 176(1), Cr. P. C. But this method of interpretation is not of universal application. Sometimes, the Legislature, considering something to be too obvious, leaves it to the interpretation by the Courts. In subsection (1) of section 174, it is provided that on receiving information with regard to the facts relating to the death of a person mentioned in clauses (a), (b) and (c) of section 174(1), the police officer concerned is bound, by a mandatory provision, immediately to give information thereof to the nearest Magistrate empowered to hold inquest and, unless otherwise provided by a rule to be framed by the Provincial Government or by any general or special order of the District Magistrate or Sub-Divisional Magistrate, he shall proceed to the spot and hold the inquest.
Thereafter, he is bound, under section 174(2), to forward his report on inquest forthwith to the District Magistrate or the Sub-Divisional Magistrate. This shows that the police officer is required by law to keep informed the nearest Magistrate who is otherwise empowered to hold inquest as also the District Magistrate or Sub-Divisional Magistrate who are also competent to hold inquest under section 174(5). One reason for this statutory duty of the police officer would be simply to keep the said judicial functionaries informed about an important incident. The other more reasonable interpretation would be that the police officer, who is the local Government functionary to have an eye on such like occurrences, should inform the Magistrates concerned, who would normally be not expected to become aware of the said occurrences immediately; so that, if they or any one of them so desire, may exercise their powers under section 174(5) or section 176(1) and (2). The police officer has not been prohibited from conducting the inquest. Till the information and/or report reaches the Magistrate concerned, he would have ordinarily performed some functions relating to inquest. If the Magistrate, on coming to know of the case, decides to exercise his functions under any of the above referred provisions, he can hold the inquest as provided in section 176(1) either instead of, or in addition to, what the police officer might have done. In either of the two positions, he would be able to exercise the same powers as have been discussed in the preceding paragraph, namely, of conducting a second investigation, inquest and passing orders relating to post-mortem and disinterment, different to those which might have already been passed by the police officer. Obviously, if he can pass orders changing his own earlier orders, he can also pass such orders which might supersede the orders already passed by the police officer, subject of course to the earlier discussed main limitation, namely, that there should be facts and circumstances justifying such an extraordinary action. This would amount, to some extent, the supervision and control of the inquest, conducted by a police officer, by Magistrates under section 174(5) read with section 176(1). In this case, even if the Investigating Officer had decided that post- mortem examination would be conducted, the Magistrate in view of the foregoing discussion had the competence to direct that it would not be conducted. Similarly, if the police officer at any stage desired that the dead body should be disinterred for purpose of post-mortem examination (subject, of course, to the limitations contained in the Police Rules with regard to the condition of the body and known causes of death as also the limitation period of three weeks together with the obtaining of the magisterial orders), the learned Magistrate was competent to hold otherwise.
Accordingly, keeping this aspect in view, neither the order passed by the learned Magistrate on 24- 4-78 nor the second order passed by him on 25-4-78, was without jurisdiction.
14. It is true that the last order passed by the learned Magistrate (and as held above, with competence) on 25.4-78 to the effect that the dead body should be disinterred and post-mortem examination conducted under his supervision, favors the position taken by the State in these petitions. But the only fact that it was a lawful order and was passed with competence would not mean that it could not be set aside by a Court of revisional jurisdiction. This order was challenged before the Sessions Court and, as pointed out in the opening part of this judgment, a learned Additional Sessions Judge, in a well-reasoned judgment, found that it was not sustainable, Although one of his reasons relating to the question of review has not been approved in this judgment but the learned Judge, in exercise of his revisional jurisdiction, also decided the question of maintainability of either of the two orders of the learned Magistrate on merits. I have observed that the reasoning qua merits by the learned Additional Sessions Judge is unexceptionable. Even if this Court would have differed with that reasoning, it is emphasized, it would not have set aside the impugned judgment in so far as the merits are concerned ; because the Legislature, in its wisdom, has not empowered this Court to entertain a second revision when, once, the revisional jurisdiction has been exercised at the district level under section 439-A, Cr. P. C. As regards extraordinary jurisdiction under section 561-A, Cr. P. C., suffice it to observe that unless the exercise of jurisdiction under section 439-A, Cr. P. C., amounts to abuse of process of Court or the other conditions of the said provision are satisfied, this Court would not interfere with the exercise of revisional jurisdiction by a Sessions Court. It may be observed here that the exercise of jurisdiction under section 561-A, Cr. P C., by this Court with regard to orders passed under section 439, Cr. P. C., would not at all be exercised in such a manner as to give an impression as if a second revisional jurisdiction is being assumed. Only rare cases would really fall under section 561-A, Cr. P. C., where it would be possible to discern the exercise of inherent power clearly under section 561-A, Cr. P. C., and where it is impossible, to confuse it with revisional jurisdiction. Thus, in this case, in so far as the merits are concerned, if the order of the learned Additional Sessions Judge is interfered with, it would amount to exercise of revisional jurisdiction and as second revision has been barred, therefore, the petition moved by the State under section 561-A, Cr P. C , has no merit and the same is accordingly dismissed.
15. I have held that none of the orders passed by the learned Magistrate was beyond his jurisdiction. When passing either of the two orders, he acted within his lawful authority. But the learned Additional Sessions Judge also, when setting aside the order passed by the learned Magistrate on 25.4-78, as discussed above, acted in accordance with law and within his lawful authority. And his order cannot otherwise be considered as' arbitrary. Therefore, no justification has been made out for interference in writ jurisdiction of this Court. The Writ Petition (No, 2961/78) moved by the State under Article 199 of the Constitution, therefore, is also dismissed. There shall be no order as to costs.
16. Before parting with this judgment, it needs to be observed that the ruling in the case of Khuda Bakhsh to the effect that the powers of a Magistrate under sections 174 and 176, Cr. P. C., are in place of, or in addition to, an investigation held by a police officer but do not empower the Magistrate "to hold an enquiry after one has been held by another Magistrate" does not affect the decision in this matter because only one Magistrate passed different orders in this case. However, in view of the discussion on the question in para. 12 above, as to whether repeated magisterial inquests can be held under the said provisions, with respect, it is remarked that it might be doubtful whether, in view of the rulings cited therein including that of the Supreme Court on interpretation of section 369, Cr. P. C., and later Division Bench authorities of this Court on the question of repeated investigations, the view expressed in the case of Khuda Bakhsh can be held any more as a correct exposition of law.