P L D 2005 Lahore 470

Before Iftikhar Hussain Chaudhry, C. J., Asif Saeed Khan Khosa and Sheikh Abdul Rashid,
JJ

KHIZER HAYAT and others---Petitioners

Versus

INSPECTOR-GENERAL OF POLICE (PUNJAB), LAHORE and others---Respondents

Writ Petitions Nos. 11862, 14415, 17169 and 16453 of 2004, decided on 1st June, 2005.

(a) Criminal Procedure Code (V of1898)---

----Ss. 22, 22-A, 22-B & 25---Justices of the Peace---Historical and global perspective in respect of
the role of a Justice of the Peace in keeping the peace in the society, if any, surveyed.

Justice of the Peace, as the name' itself suggests, was an institution conceived and conjured up
centuries ago mainly to assist the police and the other law enforcing agencies in maintaining peace
in the society but over the last many centuries this concept has witnessed many developments, and
variations in different parts of the world. In some countries the role of a Justice of the Peace is still
restricted to an administrative function and relevant only till a stage when a crime is not yet
committed or where it has been committed and not yet reported to the police and not beyond that
stage but in others the role of a Justice of the Peace has been enlarged and extended to exercise of
some judicial and other powers including trial of petty offences and trifling civil disputes as well.

The concept of a Justice of the Peace has evolved and developed over the last many centuries; it had
originated in England and had been introduced by the British colonists in some of their colonies; the
original role of a Justice of the Peace was conservation of the peace within the area of his
jurisdiction through administrative and ministerial measures but gradually his role was enlarged in
some countries to include a minor judicial role qua summary trial of petty civil and criminal cases;
and every enlargement of his role had been achieved through express legislation. It is quite clear
that beyond the express authority, both administrative and judicial, conferred upon him by a statute
a Justice of the Peace does not possess any implied or inherent jurisdiction to dispense justice
among the people in his local area.

During their rule over the Indo-Pak sub-continent the British colonists had also introduced the
concept of Justices of the Peace in the local system of governance and conservation of the peace.
However, with almost simultaneous introduction of .an elaborate system of hierarchy of Magistrates
the role of Justices of the Peace never assumed any significant importance in the Indo-Pak sub-
continent and Justices of the Peace were never conferred any judicial power. Although since their
original induction in the system some additional powers have been bestowed upon Justices of the
Peace from time to time yet their role essentially remains restricted so far to conservation of the
peace and in case of breach of the peace their role ends by apprehending the culprit, if possible, and
by reporting the breach of the peace to the police. It can, thus, be observed without any fear of
contradiction that at least in the context of Pakistan the role of a Justice of the Peace at the present
juncture in Pakistan history is primarily of rendering assistance to the police in the matters of
keeping the peace and, in case of breach of the peace, apprehending the culprit and rendering
assistance to the police in investigation of the crime. On November 21, 2002 ex-officio Justices of
the Peace in Pakistan were conferred an additional role through promulgation of the Criminal
Procedure (Third Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 and this role
was in respect of entertaining complaints and issuance of appropriate directions to the police
authorities concerned regarding registration of criminal cases, transfer of investigation of criminal
cases and in respect of neglect, failure or excess committed by a police authority in relation to its
functions and duties. These and other roles of a Justice of the Peace and an ex-officio Justice of the
Peace in Pakistan are evident from provisions of Ss.22, 22-A and 22-B of the Code of Criminal
Procedure, 1898.

Halsbury's Laws of England 4th Edn., Vol.29; Jowitt's Dictionary of English Law 2nd Edn., Vol. 1;
Encyclopaedia Britannica, Vol. 13; The New Encyclopaedia Britannica 15th Edn., Vol. 6; Corpus
Juris Secundum Vol. 51; The Encyclopaedia Americana (International Edn.); American
Jurisprudence 2nd Edn., Vol. 47; Words and Phrases (Permanent Edn.); Grolier Encyclopaedia of
Knowledge; Collier's Encyclopedia Vol. 13; The Law Lexicon of British India; Venkataramaiya's
Law Lexicon with Legal Maxims, 2nd Edn; K.J. Aiyar's Judicial Dictionary, 11th Edn.; Law Terms
and Phrases Judicially Interpreted with Legal Maxims and Legal Words and Phrases in Ordinary
Usage; Hand Bhook of Legal Terms and Phrases by M. Ilyas Khan and Words and Phrases Legally
defined 2nd Edn. ref.

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

----Ss. 22, 22-A, 22-B & 25---Justice of the peace/ex-officio Justice of the Peace---Role statutorily
defined in Pakistan for a Justice of the Peach/ex-officio Justice of the Peace, detailed.

Provisions of Ss.22, 22-A, 22-B and 25 of the Code of Criminal Procedure, 1898 show that the roles
statutorily defined in Pakistan for a Justice of the Peace are, by and large, as follows:

A Justice of the Peace in Pakistan has the powers

(a) to make an arrest in circumstances enumerated in sections 54 and 55, Cr.P.C. and to hand over
custody of the arrested person to the officer in charge of the nearest Police Station;

(b) to call upon any member of the police force on duty to aid him in arresting or preventing the
escape of a person involved in commission of a cognizable offence;

(c) to call upon any member of the police force on duty to aid him in the prevention of crime,
breach of the peace or disturbance of the public tranquility; and

(d) to issue a certificate of identification of a person, to verify any document and to attest any
document.

An ex-officio Justice of the Peace in Pakistan (i.e., Sessions Judges and nominated Additional
Sessions Judges in the relevant Districts under section 25, Cr.P.C.) has the power to issue
appropriate directions, to the police authorities concerned on a complaint regarding non-registration
of criminal case, transfer of investigation from one police officer to another and neglect, failure or
excess committed by a police authority in relation to its functions and duties.

The duties of a Justice of the Peace in Pakistan are

(a) to make inquiries and- to report in writing to the nearest Magistrate and to the officer in charge
of the nearest police station whenever he receives information of an occurrence of any incident
involving a breach of the peace or of commission of any offence within his local area;

(b) if the information received by him is in respect of commission of a cognizable offence then to
also prevent any interference with the place of occurrence or removal of anything therefrom;

(c) to render assistance to a police officer,, if so required in writing by him, making an investigation
in respect of any offence within the relevant local area; and

(d) to record any statement, if so required in writing by a police officer making an investigation in
respect of any offence within the relevant local area, made under expectation of death by a person in
respect of whom a crime is believed to have been committed.

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

----Ss. 22, 22-A & 22-B---Justice of the Peace---Functions to be performed---Nature---Powers and

duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan as provided in
Ss.22-A & 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or
character---Functions to be performed by a Justice of the Peace or an ex-officio Justice of the Peace
are merely administrative and ministerial in nature and character---Principles.

The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan as
provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as
judicial in nature or character. In this context the role of a Justice of the Peace or an ex-officio
Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counterparts in
the United Kingdom and the United States of America where some . judicial role regarding
summary trial of petty 'civil and criminal cases has been conferred upon the Justices of the Peace
through legislative intervention. That surely is not the case in Pakistan where no statute confers any
judicial power upon a Justice of the Peace or an ex-officio Justice of the Peace. Functions to be
performed by a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan are merely
administrative and ministerial in nature and character. Such view is fortified by, the provisions of
section 6, Cr.P.C. which categorizes the classes of criminal courts and Magistrates in Pakistan and a
Justice of the Peace or an ex-officio Justice of the Peace is not included in any such class of courts
or Magistrates. Apart from that sections 28 and 29, Cr.P.C. specify as to which Courts are to try
which offences and in those, sections too a Justice of the Peace or an ex​-officio Justice of the Peace
does not figure at all.

Pir Abdul Qayyum Shah v. S.H.O. and 4 others 2005 PCr.LJ 357 ref.

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

----Ss. 22-A(6) & 25---Justice of the Peace/ex-officio Justice of the Peace---Extent and scope of
direct interference by an ex-officio Justice of the Peace under S.22-A(6), Cr.P.C. explored.

A Justice of the Peace or an ex-officio Justice of the Peace in Pakistan performs functions which art
administrative and ministerial in nature and not judicial in character. Even the superior Courts of
Pakistan having constitutional, legal, supervisory and inherent judicial jurisdiction have consistently
and consciously refrained from directly interfering with investigation of a criminal case by the
police and, therefore, it is but obvious that Justices of the Peace or ex-officio Justices of the Peace
possessing only administrative and ministerial powers should be twice shy of such direct
interference.

Thus, if despite possessing constitutional, legal, supervisory and inherent judicial powers the
superior Courts of Pakistan have generally considered it imprudent and ill-advised to directly
interfere with investigation of a crime by the police then it appears to be nothing but stating the
obvious that a Justice of the Peace or an ex-officio Justice of the Peace possessing merely
administrative and ministerial powers should all the more be reluctant and hesitant in issuing
directions to the police as to how and by whom a criminal case is to be investigated. It must not be
lost sight of that a Justice of the Peace in Pakistan has no judicial powers and an ex-officio Justice
of the Peace is a Justice of the Peace only by virtue of the office that he already holds and his
powers as such do not become judicial simply because the other office already held by him happens
to be a judicial office. By virtue of his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio
Justice of the Peace can issue appropriate directions to the police authorities concerned on the basis
of complaints regarding non-registration of a criminal case, transfer of investigation from one police
officer to another and neglect, failure or excess committed by a police authority in relation to its
functions and duties but the directions to be issued by an ex-officio Justice of the Peace under
section 22-A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the
grievance of the complaining person in accordance with the relevant law and through the
jurisdiction under section 22-A(6), Cr.P.C. An ex-officio Justice of the Peace cannot arrogate to
himself the power of redressing the actual grievance itself. An exception to this can be visualized in
cases of a clear legal obligation on the part of a police officer to act in a particular manner in which
situation a direction may be issued by an ex-officio Justice of the Peace to the concerned police
officer to do the needful. Under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace is to
perform the role of a facilitator and that of a bridge or a conduit between the complaining persons
and the police authorities concerned and the jurisdiction under section 22-A(6), Cr.P.C. does not
allow an ex-officio Justice of the Peace to put on the mantle of a higher police authority himself and
to start exercising all those executive powers himself which the relevant law has vested in the
concerned- police authorities. This interpretation appears to be a correct statement of the law as the
same is in accord with the ratio decidendi of the precedent cases besides being a safe and prudent
approach vis-a-vis the well-entrenched constitutional doctrine of separation of powers. If in their
capacity as ex-officio Justices of the Peace judicial officers like Sessions Judges and Additional
Sessions Judges are allowed to play a proactive, hands on and upbeat role of direct interference in
the administrative working of the police then such executive role of judicial officers may militate
against the constitutional mandate of separation of the Judiciary from the. Executive enshrined in
Article 175(3) of the Constitution of the Islamic Republic of Pakistan, 1973. In that eventuality the
provisions of section 22-A(6), Cr.P.C. may themselves become vulnerable to a serious challenge on
the touchstone of the Constitution.

Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Federation of Pakistan v. Shah Muhammad
Khan and others PLD 1960 SC (Pak) 85; Shahnaz Begum v. The Hon'ble Judges of the High Court
of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Saeed Azhar v. Martial Law
Administration, Punjab and others 1979 SCMR 484; Malik Shaukat Ali Dogar and 12 others v.
Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v.
Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR
2142; Anwar Ahmad Khan v. The State and another 1996 SCMR 24; Muhammad Latif v. Sharifan
Bibi and another 1998 SCMR 666; Muhammad Ali and 12 others v. District Magistrate, Faisalabad
and 3 others PLD 1978 Lah. 1325.; Nasir Ali Inspector-General of Police, `Punjab, Lahore and 8
others 2000 YLR 225 ref.

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

----S. 22-A(6)---General complaints in the context of criminal justice, against the working of the
Police in the Province of Punjab and kind of "directions" can/should an ex-officio Justice of the
Peace issue in respect of such complaints while exercising his jurisdiction under S.22-A(6), Cr.P.C.-
--High Court, for facility of cognition and for guidance of the ex-officio Justice of the Peace in the
Province of Punjab recorded resume and conclusions on the subject.

High Court had framed the following questions and had required the counsel for the parties to
address arguments in respect of the same so as to assist the Court in arriving at an appropriate
decision:

(a) Looked at in historical and global perspective what is the role of a Justice of the Peace in
keeping the peace in the society, in maintenance of law and order and in the criminal justice system,
if any?

(b) Whether in .Pakistan a Justice .of the Peace or an ex-officio Justice of the Peace exercises
judicial powers or his functions are merely administrative and ministerial in nature and character?

(c) What, in the context of-his jurisdiction under section 22-A(6), Cr.P.C., is the extent and scope of
direct interference by an ex-officio Justice of the Peace in Pakistan with investigation of a criminal
case by the police?

(d) What, in the framework of criminal justice, are the general complaints against the working of
the police in the Province of the Punjab and what kind of "directions" can/should an ex-officio
Justice of the Peace issue in respect of such complaints while exercising his jurisdiction under
section 22-A(6), Cr.P.C.?

(e) What are the remedies against non-compliance of directions issued by an ex-officio Justice of
the Peace under section 22-A(6), Cr.P.C.?

(f) Whether the orders passed by different ex-officio Justices of the Peace impugned through the
present and the connected writ petitions are legally sustainable or not?

Generally the public at large brings the following kinds of complaints against the police before the
High Court while invoking writ jurisdiction of High Court under Article 199 of the Constitution and
now similar complaints are being brought before ex-officio Justices of the Peace by filing petitions
under section 22-A(6), Cr.P.C.:

(i) complaints about unjustified harassment by the police in the absence of any criminal case having
been registered against the aggrieved person;

(ii) complaints regarding failure of the police to register a criminal case despite commission of a
cognizable offence having been reported to it;

(iii) complaints pertaining to failure by the investigating officer to add appropriate penal provisions
to an FIR or a cross-version of the accused party;

(iv) complaints about failure by the investigating officer to record a cross-version of the accused
party;

(v) complaints regarding failure to arrest an accused person nominated in the FIR or in the cross-
version of the accused party;

(vi) complaints pertaining to unfair, biased and improper investigation and, thus, seeking transfer of
the investigation; and

(vii), complaints about failure to finalize investigation of a criminal case and to submit a Challan
within a reasonable time.

High Court adverted to each one of such complaints one by one so as to examine what kind of
directions can/should be issued by an ex ​officio Justice of the Peace under section 22-A(6), Cr.P.C.
in respect of such complaints. While exercising its constitutional jurisdiction regarding judicial
review of administrative action a High Court is not to substitute its own decision for that of the
competent authority and that, after stating the correct legal position, the High Court is to issue a
direction to the competent authority to pass an appropriate order in terms of the legal position so
declared. Likewise, except in cases of a clear legal obligation on the part of a police officer to act in
a particular manner in which situation a direction may be issued by an ex-officio Justice of the
Peace to the concerned police officer to do the needful, it would be inappropriate to the verge of
being illegal for an, ex-officio Justice of the Peace to issue directions to the police arrogating to
himself the role of a supervisor or superintendent- of the police in the matter of actual investigation
of a crime. While exercising his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of
the Peace is only to activate the available legal remedy or procedure so that the grievance of the
complaining person can be attended to and redressed, if found genuine; by the competent authority
of the police. In this view of the matter if an ex-officio Justice of the Peace can issue the desired
direction under section 22-A(6), Cr.P.C. activating the available legal remedy or procedure which
the High Court would also have done if seized of a writ petition filed in that regard under Article
199 of the Constitution then the remedy before an ex-officio Justice of the Peace under section 22-
A(6), Cr.P.C. can ordinarily be termed and accepted as an adequate alternate statutory remedy
busting a direct recourse by an aggrieved person to the High Court by invoking its extraordinary
jurisdiction under Article 199 of the Constitution. - It is, therefore, declared that in the matters of
complaints against the working of the police covered by the provisions of section 22-A(6), Cr.P.C.
an aggrieved person, except where the High Court feels satisfied that it is an exceptional case
arising out of extraordinary circumstances warranting direct interference by the High Court and
rendering the remedy under section 22-A(6), Cr.P.C. inadequate, cannot tile a writ petition before
this Court under Article 199. of the Constitution before availing of the normally adequate alternate
statutory remedy before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.

For facility, of cognition and for guidance of the ex-officio Justices of the Peace in the Province of
the Punjab the discussion is summed up with the following resume and conclusions:

(i) The powers and dudes of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan
stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other additional power and
perform no other additional duty except that which is specifically conferred upon them by a statute.

(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan
do not involve any jurisdiction which can be termed as judicial and the functions performed by him
are merely administrative and ministerial in nature and character.

(iii) The superior Courts of Pakistan having constitutional, legal, supervisory, and inherent judicial
jurisdiction have consistently and consciously refrained from directly interfering with investigation
of a criminal case by the police and, therefore, Justices of the Peace or ex-​officio Justices of the
Peace possessing only administrative and ministerial powers should be twice shy of such direct
interference.

(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.
are to be directions to the concerned police authorities to attend to the .grievance of the complaining
person in accordance with the relevant law and through the jurisdiction under section 22-A(6),
Cr.P.C. An ex-officio Justice of the Peace cannot arrogate to himself the power of redressing the
actual grievance itself. An exception to this is a case of a clear legal obligation on the part of a
police officer to act in a particular manner in which situation a direction may be issued by an ex-
officio Justice of the Peace to the concerned police officer to do the needful. Under section 22-A(6),
Cr.P.C. an ex​officio Justice of the Peace is to perform the role of a facilitator and that of a bridge or
a conduit between the complaining persons and the police authorities concerned and the jurisdiction
under section 22-A(6), Cr.P.C. does not allow an ex-officio justice of the Peace to put on the mantle
of a higher police authority himself and to start exercising all those executive powers 1oimself
which the relevant. law has vested in the concerned police authorities.

(v) Barring exceptional and extraordinary cases, the remedy before an ex-officio Justice of the
Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an. adequate
alternate statutory remedy ousting a direct recourse by an aggrieved person to the High Court by
invoking its -extraordinary jurisdiction under Article 199 of the Constitution.

(vi) The proceedings before an, ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are
essentially summary in character. He is not required to treat such proceedings as regular lis and no
elaborate orders having semblance of a judgment are required to be passed.

(vii) In such proceedings notice, if required, may be issued only to the concerned police officer and
not to any private party as no direction adverse to any private party is to be issued in such
proceedings. A direction to the relevant police officer regarding activating any legal remedy of the
complaining person cannot be termed as a direction adverse to any party. Even a direction to a
police officer to comply with a mandatory provision of law cannot be called a direction adverse to
any person. Under Articles 4 and 5 of the Constitution it is an inalienable right of every citizen to be
treated in accordance with the law and obedience to the law is an inviolable obligation of every
citizen.

(viii) Complaints about unjustified harassment by the police.--A complaint before an ex-officio
Justice of the Peace under section 22-A(6), Cr.P.C. which does not contain all the necessary factual
details regarding the date, time and place of the alleged harassment as well as full particulars of the
concerned police officer who is being complained against is to be out-rightly dismissed. In an
appropriate complaint of this nature the ex-officio Justice of the Peace may require the concerned
police officer to submit his comments to the complaint. If through his comments the relevant police
officer fails to satisfy the ex-officio Justice of the Peace regarding falsity of the allegations leveled
against him then the ex-officio Justice of the Peace may, depending upon the circumstances of the
case, either warn the relevant police officer not to transgress the limits of the law in future or may
issue a direction to the relevant higher police authority or the relevant Public Safety and Police
Complaints Commission to consider the complaint and to take appropriate action against the
delinquent police officer under the relevant provisions of the Police Order, 2002. In an extreme case
of highhandedness and totally unjustified harassment the ex-officio Justice of the Peace may issue a
direction to the relevant police authority to register a criminal case against the delinquent police
officer if he had seemingly committed some cognizable offence during the harassment perpetrated
by him.

(ix) Complaints regarding failure of the police to register a criminal case.--The officer in charge
of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever
information disclosing commission of a cognizable offence is provided to him but the provisions of
section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of, the Peace to
necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a
complaint is filed before him in that regard. An ex-officio Justice of the Peace should exercise
caution and restraint in this regard and he may call for comments of the officer in charge of the
relevant Police Station in respect of complaints of this nature before. taking any decision of his own
in that regard so that he may be apprised of the reasons why . the local police have not registered a
criminal case in respect of the complainant's allegations. If the comments furnished by the officer in
charge of the relevant Police Station disclose no justifiable reason for not registering a criminal case
on the basis of the information supplied by the complaining person then an ex-officio Justice of the
peace would be justified in issuing a direction that a criminal case be registered and investigated. It
is not obligatory for the officer in charge of a Police Station or for ,an ex-officio Justice of the Peace
to afford an opportunity of hearing to the accused party before registration of a criminal case or
before issuing a direction in that regard. In an appropriate case; depending upon the circumstances
thereof, an ex​officio Justice of the Peace may refuse to issue a direction regarding registration of a
criminal case and may dismiss the complaint under section 22-A(6), Cr.P.C. reminding the
complaining person of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C. The
impression entertained by a large section of the legal community in our country that in case of filing
of a private complaint the accused person cannot be arrested and recovery cannot be effected from
him is nothing but erroneous and fallacious.

(x) Complaints about failure by an investigating officer to add appropriate penal provisions to
an F.I.R. or a cross-version of the accused party.--Such complaints are not worthy of being taken
with any degree of seriousness by an ex-officio Justice of the Peace. The stands taken by the
complaining persons in this regard normally touch the. merits of the allegations and an ex-officio
Justice of the Peace would be' well advised to refrain front entering into any such controversy at a
premature stage. The overall incharge of a criminal case is the Area Magistrate who, even during
the progress of an investigation, gets many opportunities to go through the record of investigation
conducted by the police and in an appropriate case and at an appropriate stage he can require the
investigating officer to consider addition or deletion of any, penal provision. After submission of a
report under section 173, Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial
Court taking cognizance of the case can take cognizance of any offence disclosed by the material
available on the record of investigation even if the police have not invoked the relevant penal
provision. Even at the time of framing of the charge a trial Court can frame a charge in respect of
any offence disclosed by the record even if the same finds no mention in the report submitted under
section 173, Cr.P.C./Challan. With so many opportunities being available with the Magistrate and
the trial Court regarding rectification of a mistake, deliberate or otherwise, committed by the police
in this connection it would be unwise for an ex​officio Justice of the Peace to interfere with such a
matter at an inappropriate and premature stage. In case of receipt of such a complaint an ex-officio
Justice of the Peace may advise the complaining person to approach the Area Magistrate or the trial
Court, as the case may be, rather than entertaining such a complaint himself.

(xi) Complaints about failure by the investigating officer to record a cross-version of the
accused party.--While dealing with a complaint of this nature an ex-officio Justice of the Peace
should call for comments of the investigating officer explaining as to why he has not recorded the
version of the accused party and if such comments confirm the complaint that despite having been
approached in that regard by the accused party the investigating officer has not recorded the version
of the accused party and there is no valid or justifiable reason for such default on his part then a
direction may be issued by the ex-officio Justice of the Peace to the investigating officer to do the
needful or in the alternative the Superintendent of Police (Investigation) of the relevant District may
be directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to ensure
that the needful is done by the investigating officer without further ado.

(xii) Complaints regarding failure by the police to arrest an accused person.--A general
impression entertained by some quarters that an arrest of a suspect or an accused person is
necessary or sine qua non for investigation of a crime is misconceived. A suspect is not to be
arrested straightaway upon registration of an F.I.R. or as a matter of course and, unless the situation
on the grounds so warrants, the arrest is to be deferred till such time that sufficient material or
evidence becomes available on the record of investigation prima facie satisfying the investigating
officer regarding correctness of the allegation levelled by the complainant party against such
suspect or regarding his involvement in the crime in issue. The law requires an investigating officer
to be generally slow in depriving a person of his liberty on the basis unsubstantiated allegations and,
thus, insistence by the interest complainant party regarding his immediate arrest should not
persuade the investigating officer to abdicate his discretion and jurisdiction in the matter before the
whims or wishes of the complainant party. An ex officio Justice of the Peace should not ordinarily
force an investigating officer in that regard where the investigating officer has not so far felt the
necessity, of an arrest or has not yet formed a tentative opinion about correctness of the allegation
against the suspect. However, in an appropriate case, after obtaining comments from the
investigating officer, an ex-officio Justice of the Peace seized of a complaint in this regard may
issue a direction to the Superintendent of Police (investigation) of the relevant District to attend to
this aspect of the matter. It must always be remembered that delaying the arrest till after formation
of an opinion regarding prima facie correctness of the allegation against a suspect goes a long way
in deterring false, frivolous and motivated complaints and also that there may not be any adequate
recompense or reparation for an unjustified arrest. It would be preposterous arid a mockery of
justice if a person may be deprived of his liberty first and later on the allegation against him may be
found by the arresting agency itself to be bogus; trumped up or false. Such an approach would
amount to putting the cart before the horse.

(xiii) Complaints seeking transfer of investigation of criminal cases.--The job of an investigating

officer is not to satisfy the parties to the case or to render any opinion about guilt or innocence of an
accused person but his duty is only to collect all the relevant evidence. In the reports to be
submitted by the police in connection with investigation of a criminal case it can comment about
sufficiency or otherwise of the evidence available against an accused person but it cannot comment
upon believability or otherwise of the evidence becoming available on the record against such
accused person. The question of believability or otherwise of such evidence is to be attended to by
the relevant Magistrate or the trial Court. The trend of getting a fresh investigation of a criminal
case conducted after submission of a Challan and after taking of cognizance by the trial Court is not
to be encouraged. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District
Police Officer cannot interfere with the process of investigation and, thus, an ex-officio Justice of
the Peace cannot direct a District Police Officer to attend to the complaining person's grievance
regarding an investigation. Article 18(6) of the Police Order, 2002 specifies the only manner in
which investigation of a criminal case can be changed. There is no other law authorizing or
empowering any other police officer or authority to change the investigation of a criminal case. Any
change or transfer of investigation of a criminal case by any officer or authority other than those
mentioned in Article 18(6) of the Police Order, 2002 is to be void and a nullity. `Verification' of
investigation, if necessary, must be confined to verification of the record of investigation and such
an exercise cannot be allowed to be conducted in a manner giving it a colour of fresh investigation
with fresh conclusions. The verifying officer has to confine himself, to the record of investigation
already conducted and cannot substitute his own conclusions for those of the investigating officer
and if he finds any serious fault with the investigation already conducted then the verifying officer
can bring such fault to the notice of the Superintendent of Police (Investigation) of the concerned
District who can then initiate the process contemplated by the provisions of Article 18(6) of the
Police Order, 2002 for change of investigation. An ex-officio Justice of the Peace cannot step into
the shoes of a competent police authority so as to himself pass an order transferring investigation of
a criminal case and his role in this regard is confined only to getting the process under Article 18(6)
of the Police Order, 2002 activated if the complaint before him establishes that the complaining
person's recourse under section 18(6) of the Police Order, 2002 has remained unattended to so far. If
the complaining person has not yet even applied before the competent authorities under Article
18(6) of the Police Order, 2002 seeking change of investigation then his complaint under section
22-A(6), Cr.P.C. is not to be entertained by an ex-officio Justice of the Peace as no occasion has so
far arisen for interference in the matter by an ex-officio Justice of the Peace. If the competent
authorities under Article 18(6) of the Police Order, 2002 have already attended to the request of the
complaining person regarding transfer of investigation and have not found the case to be a fit case
for transfer of investigation then too an ex-officio Justice of the Peace cannot interfere in the matter
as the competent authorities have already consciously attended to the matter and there is nothing
left for the ex-officio Justice of .the Peace to get activated or initiated. An ex officio Justice of the
peace is not to assume the role of an appellate, revisional or supervisory authority in that respect.
An ex-officio Justice of the Peace, like any judicial or other authority outside the police hierarchy,
should be extremely slow in directly interfering with the matter of transfer of investigation and in an
appropriate case he may interfere only where the authorities mentioned in Article 18(6) of the
Police Order, 2002 have already been approached by the complaining person but such authorities
have failed to attend to his grievance and the application of the complaining person is lying
unattended to. Even in such a case an Justice of the Peace may refuse to interfere in the matter
unless it is established to his satisfaction that some specific and particular material pieces of
evidence had been missed out by the investigating officer and the same remain to be collected by