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Report No. 47

Chapter 17

Interference by writs with Investigation

17.1. Introductory.-

In some of the replies to the Questionnaire issued by the Commission, as also during oral discussions with some officers, it was stated that the investigation of economic offences is sometimes hampered by writs issued by the High Courts which stay the proceedings of the investigating agencies until the matter is disposed of.

17.2. Categories of orders.-

A study of summaries of sample cases forwarded by some of the officers at the request of the Commission, as also of a few reported decisions, relevant to the subject, shows that orders of Courts which were supposed to hamper investigation fell into the following main categories:-

(a) orders passed by the High Courts or Courts of Session on an interlocutory revision;

(b) writs issued by the High Courts under Article 226, not staying investigation as such, but restraining the executive officers from taking certain steps, such as search and the like;

(c) writs issued by the High Courts restraining the entire process of investigation;

(d) orders issued by the trial court itself, staying the trial until decision of some question of law in the High Court, being a question which would affect the proceedings in the trial court itself.

17.3. So far as category (a) is concerned, it should be stated that the question does not pertain to economic offences alone, but to the entire field of criminal procedure. It may be of interest to note that in the recent Bill on Criminal Procedure Code1 there is a proposal to bar revision in respect of interlocutory orders.

So far as category (b) is concerned, the usual type of case presented is a petition questioning the legality of search. Since seizure of a document or other property and search of premises frequently involves questions of fundamental rights, it has been possible for the parties affected by the seizure or search to approach the High Court for the issue of appropriate writs on the basis of violation of this or that fundamental right. Interference with the whole process of investigation-category (c) above-one should think, should be a very rare situation. The situation has, however, arisen in one or two cases, not yet finally decided, and the following paragraphs seek to deal with the legal position in brief.

[Category (d) need not be discussed in detail.]

1. Criminal Procedure Code, Bill, 1970, Clause 407(1).

17.4. Interference with investigation.-

Attempts made in the past to invoke interference by the Court with the process of investigation by the police have not usually succeeded. Rulings1 under Chapter 14 of the Criminal Procedure Code-particularly, section 159-have made it clear that the court cannot control or interfere with investigation by the police. Same has been the fate of attempts to invoke the inherent power2 of the court (section 561A, Criminal Procedure Code).

1. Khwaja Nazir Ahmad, AIR 1945 PC 18.

2. Khwaja Nazir Ahmad, AIR 1945 PC 18.

17.5. However, it is pertinent to refer to a recent Supreme Court judgement1. The actual decision was concerned with section 59, Criminal Procedure Code and was as follows:-

"The scheme of these sections2, 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 decides not to investigate the case that the Magistrate can intervene and either direct the 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 investigate has been made independent of any control by the Magistrate."

But, dealing with the mala fide exercise of the power by the police, the Supreme Court made the following observations obiter

"It appears to us that, though the Code of Criminal Procedure gives to the police unfettered powers to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers."

The Court added-

"The fact that 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 section 159 of the Code."

1. S.N. Sharma v. Bipin Kumar, AIR 1970 SC 786 (788, 789).

2. Sections 156, 157 and 159, Criminal Procedure Code.

17.6. Case-law examined.-

We have also examined a number of decisions which relate to writs issued in connection with steps taken towards investigation or administrative adjudication. These decisions relate to search and seizure1, admissibility of certain statements2, custody of documents3 or extension of time4.

1. (a) AIR 1966 SC 1209;

(b) AIR 1967 SC 1298;

(c) (1967) 71 Cal WN 814;

(d) AIR 1970 Cal 212.

2. (a) AIR 1970 SC 1065; (b) AIR 1970 SC 940.

3. AIR 1962 SC 759.

4. AIR 1968 Mys 89.

17.7. Amendment not recommended.-

In almost all these cases, writs were applied or issued on the ground that some fundamental right or other of the petitioner was violated or threatened to be violated. The writ was not directed at the process of investigation as such, but at particular steps forming part of the process. No doubt, the blocking of one step blocks the prompt completion of the investigation. But in a Constitution which guarantees fundamental rights, such situations are unavoidable. We do not think that a constitutional amendment to prohibit the issue of writs in such cases is called for.

17.8. Need for bearing in mind importance of economic offences.-

Nevertheless, we must note that there is a complaint that the issue of writs prohibiting the taking or continuance of some steps necessary for completion of the investigatory process hampers investigation. We are free to confess that this complaint cannot be regarded as baseless. It is not for us to comment on the legality or propriety of the judicial orders passed in such cases.

But we hope that while exercising their extraordinary jurisdiction to issue writs in these cases, courts will not overlook the need for speedy and unhampered investigation of these offences which cause grave harm to the whole nation. We would also like to emphasise that, in dealing with proceedings initiated before them by parties mainly not solely for stalling or delaying the investigation of offences alleged to have been committed by them, courts should bear in mind what the Privy Council laid down in a very pithy and emphatic manner when it observed that the function of the courts begins after the investigation is complete1.

1. Nazir Ahmed's case.

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