2023 PCrLJ 1 تبدیلی تفتیش کے موضوع پر لاہور ہائیکورٹ کا انتہائی اہم فیصلہ
2023 PCrLJ 1
It is trite that where there is conflict
between the judgments of the Hon’ble Supreme Court the one rendered by the
Larger Bench prevails.
In the context of Article 18A of the Police
Order 2002, the DSB, RSB and the Review Board are obligated to formulate their
recommendations in such a manner that it shows that they have duly examined the
case file and considered the material placed before them. The Inspector
General’s SOPs dated 24.4.2014 also cast this duty on the DSB and RSB but, in
view of the law discussed above, the Review Board has the same obligation.
Article 18A expressly requires the Heads of
the District Police and the Regional Police Officers to record reasons when the
recommendations of the DSB and the RSB, as the case may be, are placed before
them. This statutory duty would not be discharged by simply reproducing those
recommendations. The order must demonstrate due application of mind by them
otherwise it would be regarded arbitrary and struck down.
Neither the Code nor the Police Rules, 1934,
provide any procedure for transfer of investigation of a criminal case from one
police officer to the other. This lacuna came to be exploited so when the
Police Order 2002 was promulgated to reconstruct and regulate the police, 3
certain provisions were made to rectify the situation. Subsequently, the Police
Order (Amendment) Act, 2013 (XXI of 2013), enacted Article 18A and introduced a
new regime for transfer of investigation of criminal cases.
The administrative authorities must exercise
their powers in accordance with law. “Where a statute empowering an
administrative authority contains a provision of appeal, revision or review, it
is statutory and can be availed of by an aggrieved party. The superior
authority or the authority which had decided the matter will exercise such
statutory power and grant an appropriate relief to the applicant.” 6If it comes
to discretion, every authority, whether original, appellate or revisional, must
exercise it reasonably and fairly. The courts may set aside an action in
exercise of the power of judicial review if it is arbitrary, discriminatory,
irrational, unreasonable or perverse.
Section 173 Cr.P.C. mandates that every
investigation should be completed without unnecessary delay. It further states
that as soon as it is done the officer in-charge of the police station shall
forward a report (through the Public Prosecutor) in the prescribed form to the
magistrate empowered to take cognizance of the offence. If the investigation is
not finalized within 14 days from the date of registration of the FIR, the
officer in-charge of the police station shall, within three days thereafter,
forward an interim report (through the Public Prosecutor) to the magistrate in
the prescribed form stating the result of the investigation made until then.
The court should then immediately commence the trial unless there are reasons
to postpone it.
