STUDY CIRCLE:SUPERVISION OF INVESTIGATION; ROLE OF MAGISTRATE

By

Mohammad Zeb Khan

Director Instructions, KPJA

What is a study Circle?

A study circle is a small group of people who meet multiple times to discuss an issue. Study circles may be formed to discuss anything from politics to religion to hobbies. They are differentiated from clubs by their focus on exploring an issue or topic rather than on activities or socializing.

en.wikipedia.org/wiki/Study_circle

Is Supervision & Control synonymous ? Investigation and

Judicial Work are gas tight compartments, non of the two can encroach upon each other.

What are the provisions of Criminal Procedure Code that prescribes the supervisory role of Magistrate over investigation.

Scheme of The Code of Criminal Procedure, 1898

Investigation

Inquiry

Trial

Relevant Chapters / Sections of CrPCInvestigation Inquiry TrialPart V,Chp XIVSections 154 – 176202,Chp XXXIX, XLIII

Chp XXIIISections 266 – 336(Omitted by Law Reforms Ordinance, 1972)

Chp XVSections 177 – 199-B

Chp III, XV, XVII, XIX, XX, XXII, XXIV, XXV, XXVI

Target areas 1. FIR 2. Arrest & Seizure 3. Custody & Remand 4. Discharge 5. Interim Order in respect of case property 6. Post arrest transitory bail 7. Identification parade 8. Confessional Statement , statement u/s 164 CrPC 9. Post arrest bail 10. Bonding down witnesses 11. Report u/s 173 CrPC 12. Sending up case to Court of Sessions

Police Remand

Section 61 ----- Within 24 hours production of arrested accused before Magistrate.

Section 167 ---- Custody to Police, max 15 days in to to

Section 344 ---- Judicial custody max 15 days in one go

2013  SCMR  1326

S. 167 ---Investigation not completed within twenty four hours---Giving accused in custody of police--- Scope--- Under S.167 , Cr.P.C . it was the duty of the Magistrate to satisfy himself that there were grounds for believing that the accusation or information was well founded for justifying custody of an accused with the police. 

2012 PLD 260 LAHORE Section 61, stipulates that a police officer cannot detain

a person in custody for more than twenty four hours in the absence of a specific order of Magistrate under S.167 ,  ---Section 167 enables a Magistrate to pass an order extending the detention of an accused for a term not exceeding fifteen days and he has to record his reason for doing so---Section 344, postulates that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time and if sufficient evidence has been obtained to raise suspicion that accused might have committed an offence and it appears likely that further evidence may be obtained by a remand, it is a reasonable cause for remand. 

Seizure

Section 523 , 550 CrPC.

Duty of Police to Report the matter to Magistrate forthwith.

2009 PLD 382 LAHORE

Under S.523 , S.H.O. was duty bound to report seizure of the car to the area Magistrate without wasting a single moment so that the Magistrate could make an appropriate order regarding the disposal of the car or the delivery of the seized car to the person entitled to its possession---

2007 PCRLJ 1552 LAHORE --Ss. 550 & 523 ---Seizure of

vehicle by police under S.550 , Cr.P.C. as a stolen property---Validity---Seizure of property by the police under S.550 , Cr.P.C. would itself become illegal if the police did not report the same to a Magistrate as required under S.523 , Cr.P.C

Discharge:

Section 63 Special Order of Magistrate Section 169 Recommendation for

Discharge by I.O Section 173(3) Order of Magistrate on

such recommendations of the I.O.

2012 YLR 472 LAHORE

After completion of the investigation, the Investigating Officer had to submit case to the concerned Magistrate; and the Magistrate had power to discharge accused under S.63 of Cr.P.C . in case of their innocence---In case Magistrate would find the accused innocent, he would refuse to take cognizance of the matter

2006 PLD 316 SC

Provisions of S.63, had prohibited discharge of an accused person except under a special order of a Magistrate---Rule 24.7 of the Police Rules, 1934, had also prohibited cancellation of F.I.Rs without the orders of the Magistrate---

2005 MLD 1883 PESHAWAR

Discharge of an accused was also governed by S.169, which was at the conclusion of investigation and on submission of report under S.173,Cr.P.C . 

Interim order case property 516A CrPC

Basic ingredients: i. Used in the commission

of the offence ii. In respect of which the

offence is committed

2014 YLR 61 LAHORE

Car/vehicle was got on lease by the respondent and he paid all the installments to the Bank---Registration Book reflected the name of the respondent that he was lawful owner of the vehicle/car---Contention of the petitioner that he was benamidar and he paid all the installments including down payment could be decided by the civil court-

2013 YLR 1746 PESHAWAR

S. 516-A ---Release of case property to a person on superdari under S. 516-A , Cr.P.C.---Scope---Under S.516-A , Cr.P.C. law permitted release of case property to a person from whose possession it had been taken and who claimed to be its bona fide purchaser. 

2013 YLR 1746 PESHAWAR In the absence of any rival claimant of

vehicle…….High Court directed that vehicle in question should be handed over to petitioner on superdari on furnishing surety; that petitioner should undertake that he would not sell or transfer the vehicle to anyone till the decision of the case, and that petitioner would produce the vehicle as and when required by court, failing which the surety bond would be forfeited. 

Vehicles in accident cases PLD 1991 Kar 200 1992 PCrLJ 750

Post Arrest Transitory bail

Accused nominated in Fir out District & arrested in your District

Against Accused a warrant issued by a Court out District & arrested in your District

under section 54 CrPC

Section 186, 187

Magistrate shall sent him to that out District MagistrateOr If offence is bailable release him on post arrest transitory bailIncase he issue warrant to his arrestThen should forward him to his SJ

Section 85, 86

Magistrate shall sent him to that out District MagistrateOrIf offence is bail able release him on post arrest transitory bailIncase Offence was non bail able then SJ, can grant post arrest transitory bail.

Explain the difference of those sections to section

86A CrPC

Would you grant bail while holding the inquiry under section 86-A CrPC?

PLD 2006 Pesh 1.

PLD 1995 Pesh 118

Identification Parade

Art 22 QSO:

Art.22---Identification parade ---Scope---Holding of Identification parade , was not only a check against false implication, but was a good piece of evidence against genuine culprits

2014  YLR  1412     LAHORE. 

2014 YLR 584 KARACHI Identification parade was not only

delayed by twenty three days of the incident, but ratio of dummies had also not been maintained because four accused had been mixed up with ten dummies -Identification parade was of no use on that score

  2012  YLR  1954 FSC

Art. 22---Identification parade ---In the present case, mainly general structural features had been mentioned which could fit into innumerable faces, without assigning roles

position of accused was not changed in the Identification parade ---Person who identified the accused, simply touched him without giving identified role---Identification parade was not conducted as per legal requirements.

2009 PCrLJ 359 KARACHI No Identification parade memo

had been produced to show whether accused was identified by the complainant as he was not named in the F.I.R.---Case of accused at present stage would require further inquiry---Accused was admitted to bail in circumstances

Confessional Statement, statement u/s 164 CrPC

Is a confessional statement under oath?

IF NO why? & would it vitiate the evidentiary value of such statement?

2007 PLD 202 SUPREME-COURT Ss.164 and 364 ,invariably apply to all sorts of

statements---Confessional statement recorded on oath is violative of S.5 of oaths Act, 1873, which prohibits administration of oath to accused person---Rule enacted in S.5 of oaths Act, 1873, is based on the concept that law does not compel accused to make confession and he is under no obligation to speak the truth---If accused willingly and voluntarily makes a judicial confession, his statement is an evidence---Administration of oath or affirmation to accused is considered not based on public policy and is an illegality in law---Recording of judicial confession on oath is certainly prohibited under oath  Act, 1873- 

2007  PLD  202 SUPREME-COURT --If a Magistrate records statement of accused

in the manner which is prohibited under the law, he may have committed illegality in exercise of jurisdiction but if confessional statement contained true statement of facts, it may not lose the status of evidence merely because of adopting of procedure for recording confession by Magistrate which is prohibited under law, unless it is shown that accused was misled and injustice was caused to him by adopting such procedure---Such procedural illegality would assume the character of irregularity which may not render the confession inadmissible.

 2014 PCrLJ  323  PESHAWAR --accused, in a murder case, was entrusted to

custody of Magistrate, the Magistrate was required to clear his Court room from all police officials/officers in uniform or in plain clothes and accused was to be provided chair , also disclosing to him that he was in safe and secured hands of Magistrate and he would not entertain any fear of police---Magistrate was also to infuse courage and confidence into accused and was to provide assurance that in case he did not make confession, he would not be handed over back to police--- Simply filling of printed pro forma or dictating such important matters to typist was not a faithful obligation under law---Magistrate had shown irresponsible attitude while dealing with such sensitive matter………

2014 MLD 942 PESHAWAR

Confessional Statement ---Voluntariness---Proof---Two accused not knowing Urdu language while Magistrate did not understand Pashto language---Magistrate recorded confessions through his steno and such fact was not mentioned by him in confessional Statement ---Complete disorder existed in verbal communication between Magistrate concerned and accused---Even the stenographer was not produced as witness---Magistrate failed to satisfy himself regarding voluntariness of confessional Statements in circumstances. 

Post Arrest Bail

Section 496 : Bail able offences bail right

Section 497: Non bailable offences bail grace

Offences not falling in prohibitory clause bail rule --- 1995 PLD SC 34

Further inquiry

The sine qua non for grant of bail is existence of further inquiry

Further inquiry means

2012 MLD 599 KARACHI further inquiry into guilt of

accused means that the question should be such which has nexus with the result of the case and may show that accused is not guilty of the offence with which he is charged. 

2014 PLD 760 SUPREME-COURT "Reasonable grounds"---

Scope---Reasonable grounds had to be grounds which were legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous. 

Fugitives grant of bail

Where accused is entitled to the concession of bail on merit, his abscondance would not form an impediment.

See Mithu Pitafi’s case

Fresh ground The ground which was not available at the stage of the earlier petition.

. Bounding down the witnesses

Section 173(5) Where the Officer in charge of a P.S forwards a report, he shall produce the witnesses except the public servants, and the Mag shall bound such witnesses for appearance before him or some other court on the date fixed for trial

Time frame u/s 173 CrPC

Mode of sending of the cases to the Court of Sessions

Thanks