P L D 1958 (W (PLP)

(c) Criminal Procedure Code (V of 1898), S. 526 (3)‑ Transfer of case‑Record showing that Magistrate Wiled warrants in undue taste‑High Court can suo Motu transfer case to another Magistrate. Iqbal Hussain petitioner in person. Irshad Hussain respondent absent though served. Muhammad Salim Aslam Pirzada for the State. SHABIR AHMAD, J.‑-- Irshad Hussain brought a complaint against Iqbal Hussain and others under section 506 of the P. P. C. on the 4th of June 1957, in the Court of Sayyed Zulfiqar Ahmad Shah Trimzey, Magistrate, Ist Class, Hasilpur. On the day when the complaint was put in the state ment of the complainant was recorded and bailable warrants for the arrest of the accused issued without taking any other evidence. Iqbal Hussain, who was one of the accused, moved the Additional District Magistrate for sending the case to this Court with a view to having the order summoning the accused quashed on the ground that it was passed without sufficient material on the record. Malik Abdur Rashid, Additional District Magistrate, Bahawalpur, went through the record and ‑has recommended that the proceedings before the Magistrate 1st Class, Hasilpur, be quashed on the following grounds :‑ (1) that the Magistrate had not complied with the pro visions of section 356 of the Code of Criminal Procedure in so far as though the statement of the complainant was recorded not by the Magistrate himself but by his Reader the Magistrate had not made a memorandum of the substance of what the witnesses deposed, nor had lie recorded the reasons of his inability to record the state ment himself ; and (2) that the statement alleged to have been made by the complainant was a verbatim copy of the complaint which fact would show that the complainant had not made a state ment and the complaint put in by him had been copied out as his statement on oath. This recommendation of the learned Additional District Magistrate is before me as Criminal revision No, 66 of 1957 (BWP).

2. On the 4th of July 1957, Muhammad Alt lodges a complaint in the Court of Mr. Trimzey, Magistrate 1st class, Hasilpur, with regard to an offence under section 506 cit the P. P‑C. against Iqbal Hussain. The statement of the complainant in that case was also recorded on the day that the complaint was put in and bailable warrants for the arrest of lqbal Hussain issued the same day without any other evidence being taken. Iqbal Hussain put in a petition in the Court of the Additional District Magistrate, Bahawalpur, who has sent up the case to this Court with the same recommendation as in Criminal Revision No. 66 of 1957 (BWP) oil precisely the same grounds as in that case. This petition is before me as Criminal Revision No. 68"of 1957 (BWP). As both the petitions raise the same questions they will be disposed of by this order.

3. The point taken by the learned Additional District Magistrate to the effect that the statement of the com plainant was not recorded in accordance with section 356 of the Code of Criminal Procedure is correct, but the question for determination is whether or not non‑compliance with that section has any effect. The learned Additional District Magistrate has mentioned in his report that by non-complying with section 356 of the Code of Criminal Procedure the learned trial Magistrate had contravened the instructions of the High Court. I have not been able to lay hands on any such instructions, nor could Mr. Muhammad Salim Aslam, who appeared for the State, point to any such instructions. He brought to my notice a decision of the now extinct High Court of Bahawalpur in Abdur Rahman v. Allah Diwaya which is reported in (P L D 1950 B J 96). In that case, Abdul Aziz, C. J. held that as the Magistrate before whom a complaint was lodged had not complied with the provisions of section 356 of the Code of Criminal Procedure when recording the statement of the complainant and some of his witnesses before process was issued to the accused, the record of those statements could not be taken into consideration. It is possible that the learned Additional District Magistrate had this decision in mind when he said in his orders of reference that the High Court had issued instructions that the provisions of section 356 of the Code of Criminal Procedure be complied with when re cording the statements of complainants before issue of process. With all respect to the learned judge who gave the decision reported in P L D 1950 B J 96, I might point out that he had failed to notice that subsection (1) of section 356 of the Code of Criminal Procedure makes it clear that the statements dealt with therein are those recorded in inquiries held by Magistrates under Chapters XII and XVIII and at trials held by Sessions Judges and Magistrates. When a complaint is lodged before a Magistrate the procedure to be followed is detailed in Chapter XVI of the Code of Criminal Procedure. Section 200, which is the first section occurring in Chapter XVI of the Code of Criminal Procedure, lays down that when a Magistrate takes cognizance of an offence on complaint he shall at once examine the complainant on oath and the substance of the examination shill be reduced to writing and shall be signed by the complainant :rod also by the Magistrate but does not lay down that the examination of the complainant is to be reduced to writing by the Magistrate himself. Nor is there any provision in Chapter XVI which enjoins on the Magistrate the duty cat recording the statements of the witnesses which the com plainant wants to produce in support of his case iii accord ance with the provisions of section 356 of the Code of Criminal Procedure Proceedings under Chapter XVI of the f Code of Criminal Procedure cannot be deemed to be trials held by Magistrates because the earliest stage at which the trial of a warrant case, which the offence mentioned in each of the two complaints was, can be deemed to have begun is when the accused appears or is brought before the Magistrate, as would be apparent from Chapter XXI of the Code of( Criminal Procedure. I am of the view that mere non-compliance with section 356 of the Code of Criminal Pro cedure in proceedings under Chapter XVI of that Code does not vitiate the proceedings of the Magistrate though II might say that it is desirable that a Magistrate should himself record the statement of the complainant and of his witnesses in proceedings under Chapter XVI of the Code of Criminal Procedure.

4. The learned Additional District Magistrate has said in his report that from the tact that the statement of the complainant, on the basis of which the Magistrate had issued warrants, was an almost verbatim copy of the complaint, the statement should be held to have been written by the Reader of the Magistrate without the complainant making it and, therefore, the proceedings of the Magistrate were vitiated. The fact that the statement of the complainant tallies, in almost all material respects, with the complaint is no doubt a suspicious circumstance, but in the absence of definite proof I am not prepared to hold that the record was not prepared in the manner in which it is shown to have been prepared. In view of what I have said above. I hold that neither of the grounds mentioned by the learned Additional District Magistrate is sufficient for quashing the proceedings in the two complaints mentioned above and I would therefore decline to act on the recommendations. It appears to me, however, that the undue haste with which warrants, though bailable. were issued by Mr. Trimzey against the accused makes it desirable that he should not hear the cases and, acting under subsection (3) of section 526 of Code of Criminal Procedure, I, of my own E accord, transfer both the cases mentioned above to the Court of the Magistrate, 1st Class, Chishtian, who will hear them in accordance with Chapter XXI of the Code of Criminal Procedure. K. B. A. Recommendations not accepted Cases transferred suo motu.