P L D 1967 Lahore 176 (PLP)

2.. It was contended by the learned counsel for the petitioner that the cognizance had been taken by Mr. Saeed‑ul‑Hassan, the predecessor of Mr. Ghulam Rasul Azhar, the learned Sub -Divisional Magistrate, and the latter, therefore was not required to comply with the provisions of section 191, Cr. P. C. Respondent No. 1 after he was admitted to bail by the learned Sessions Judge appeared before Mr. Saeed‑ul‑Hassan, .the learned Sub‑Divisional Magistrate on the 14th of March 1964. The challan had not been put before him on that date. It was presented on the 20th of March 1964. Mr. Saeed‑ul‑Hassan did not take any proceedings in the‑case nor did he record any evidence. All that he did after respondent No. 1 appeared before him on the 14th of March 964, was that he adjourned the case to a future date. Such an order in my opinion, does not amount to taking of cognizance: In the case of cognisable offence, the Magistrate takes cognizance only when the police had completed investigation and it comes to the Magistrate for the issue of a process. Moreover, before it can be said that any Magistrate has taken cognizance of an offence under section 190, Cr. P. C:, he must have applied his mind to the offence for the purpose of proceeding in a particular way. The expression taking cognizance of an offence' means the Court deciding to proceed against the offender with a view to determine his guilt. The stage for such determination does dot arise unless the police submits challan under section

173. The contention raised on behalf of the petitioner is, therefore, devoid of force and the cognizance in this case was taken by Mr. Ghulam Rasul Azhar learned Sub‑Divisional Magistrate.

3. It was next contended by the learned counsel for the petitioner that the learned trial Magistrate did not take cognizance against respondent No. 1 under clause (c) of subsection (1) of section 190 and that he did so only under clause (b) upon report of the police officer and that, therefore, section 191, Cr. P. C., was not attracted to the facts of this case. The learned Magistrate proceeded against respondent No.

1. He obviously did not accept the opinion of the police that there was not sufficient evidence against him. He, therefore, took cognizance of the offence alleged against respondent No. 1 also. There are only three ways in which a Magistrate can take cognizance of an offence and they are described in section 190, Cr. P. C: (a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. The question therefore arises as to under what clause the learned Magistrate has taken cognizance against respondent No.

1. He obviously did not take cognizance under clause (a) because there, was no complaint made to him. It was either upon report in writing of such facts made by police officer under clause (b) or upon his own knowledge or suspicion that such offence has been committed under clause (c). The police had shown respondent No. 1 in column No.

2. A person is shown in column No. 2 if it appears to the officer incharge of the police station that there was not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. The case of the respondents is that the police did not forward respondent No. 1 to the Magistrate because in their opinion there was not sufficient evidence or reasonable ground of suspicion to justify it and the report of the police being in favour of respondent No. 1 and not against him, the learned Magistrate had not taken cognizance against him upon a report of the police. Clause (b) of subsection (1) of section 190 does not say "upon a report in writing of facts against the accused". All that it states is that, upon a report id writing of such facts made by any police officer. The basis for taking cognizance under the said section is not the report against the accused but on a report of facts as made by the police officer.

4. The purpose of the investigation is to enquire into the allegations of offence made against the persons and to find out if the allegations are true or otherwise. The relevant sections in this connection are sections 169 and

170. Section 169 relates to cases in which it is found that there is not sufficient evidence for forwarding the accused to a Magistrate and consequently no person is sent up for trial. If, however, such an accused is in custody, the police officer is required to release him upon his executing a bond with or without sureties to appear if and when required before the competent Magistrate. Section 170 applies to cases where upon investigation it is found that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate and he is consequently sent up for trial. Section 173 contains general directions relating to both. If it is a case falling under section 170, the case is forwarded to the Magistrate under sub‑clause (b) of section 173 (1) with a report setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case. On the other band if his case falls under section 169 and he was asked to furnish bond by the Magistrate, his case is covered by sub section (3) of section 173 which provides, "whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit" If the bond is not taken by the police under section 169, as in the present case where respondent No. 1 was admitted to bail before arrest by the Sessions Judge, the question of the Magistrate discharging him of any bond under subsection (3) of section 173 does not arise. The police does not forward a person falling under section 169 to the Magistrate but it will have to state all the same in the report that there was not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. It is for this reason that such persons whether they are released by the police on their executing the bond or they are otherwise on bail that they are shown in column No. 2 of the challan. Section 173, therefore, is applicable to every investigation irrespective of the opinion formed at the close of the investigation by the police officer; and reports under this section would appear to be required even in cases where the police officer acts under section 169, in relation to the accused. The Magistrate on the receipt of the report has the power to make such order in the case as he thinks fit. He may direct that the bond furnished by the accused be discharged and it is obvious that such art order would be appropriate in a case in which the Magistrate agrees with the opinion of the police officer and considers that further proceedings are not necessary. In another case where such an accused person has not furnished the bond to the police and is admitted to bail by the Magistrate himself or under the orders of the Sessions Judge or the High Court he will have to appear before the Court in terms of the conditions of such bond before him. If the police report that there was not sufficient evidence or reasonable ground of suspicion against him, the Magistrate may in that case release him of the bond, which he has executed under his orders or of the Sessions Judge or the High Court. The Magistrate is not bound by the police officer's opinion. On the contrary, he may, by relying on the material furnished in the report, take cognizance of a case against the person whom the police officer believed to be innocent. Where cognizance is taken by a Magistrate of a case on the basis of a negative report under section 173, such cognizance is taken obviously on the police report and not upon his own knowledge or suspicion. The case, therefore, falls under clause (b) of subsection (48 Cr. L J 774) of section 190 and not under clause (c). It was so held in Muhammad Niwaz v. Crown (1), Emperor v. Dalip Singh (5 Cr. L J 275), Sarwa v. Emperor (14 Cr. L J 290) and In re: Alfred Paul (A I R 1944 Mad. 166), the Sub- Inspector of Police reported after investigation that the assault was exaggerated, that the complainant was not very anxious about the case, and that under the circumstances and in accordance with the orders of the Inspector of Police he had treated the case as a mistake of fact. The Magistrate on that ordered that if there was any witness, the case should be charged. Thereupon a charge‑sheet was submitted and the trial proceeded, ending in the conviction of the petitioner. It was argued that the principle enunciated in section 191 should be applied to the case and that as the Magistrate was the origin of the prosecution, he ought not to have tried the case. It was held that the Magistrate "under such circumstances is not taking cognizance under section 190 (1) (c), Cr. P. C." Learned counsel for the respondents relied on Muhammad Abbas v. State (P L D 1964 Lab. 7). The police in this case presented the challan under section 173 against Muhammad Yaqub and showed Muhammad Abbas accused in column No.

2. It was mentioned in the police report that there was not sufficient evidence to justify his forwarding to the Court. The Magistrate did not summon him. He started with the trial of Muhammad Yaqub. During the trial the police applied to the Magistrate for summoning Muhammad Abbas and the Magistrate on that application summoned him. Muhammad Abbas challenged this order and it was quashed on the ground that the Magistrate had acted mechanically on the application of the police. The learned Judge held, "if he is deemed to be acting under clause (c) it will be incumbent upon him to comply with the provisions of section 191, Cr. P. C., and. to inform the accused that he was entitled to have the case tried by another Court". The facts of that case are distinguishable from the present case. The Magistrate in that case did not proceed against Muhammad Abbas immediately on receipt of the police report. He in fact acted .on that report and did not summon Muhammad Abbas. It was only after some evidence was recorded that he summoned Muhammad Abbas. He was obviously in that case not acting on the police report but on the information, which he might have received subsequently from the statements of the witnesses whose evidence he had recorded. In Abdus Satar Molla v. Crown (P L D 1953 P' C 145), a case under sections 148 and 326/149, P. P. C. was registered against nine persons and one of them was Abdus Sattar Molla and the allegation was that he had opened the attack with a spear blow on the left side of the body of Abdul Samad, father of Humayun Kabir All the nine accused were admitted to bail by the Magistrate. The police after the investigation submitted a challan under section 173, Cr. P. C.' against eight persons excluding Abdus Sattar Molla. Abdus Sattar‑was admitted to bail on the 3rd of August 1949, and the report under section 173, Cr. P. C. was put in on the 13th of October, 1949. The trial Magistrate took cognizance of the case on the 14th of October 1949. Five' persons were granted bail and the remaining three were to produce sureties on the 10th of November

049. The Magistrate started recording the evidence on the 1st of December 1949. When he was recording the evidence of the second witness, he directed that Abdus Sattar should also be produced, to stand his trial along with the other accused. He accordingly issued warrant of his arrest. The trial thereafter proceeded against all the nine persons. The trial Magistrate convicted them by his order dated the 13th of July 1950. It was held by the Federal Court that the trial of appellant was vitiated not only because the trial Magistrate was not empowered under section 190 (1) (c), Cr. P. C. but also because the appellant had not been informed under section 191 that he could claim to be tried by another Magistrate". It will‑be seen that on the facts of that case the Federal Court had held that the Magistrate had taken cognizance under clause (c) of subsection (1) of section

190. The police had submitted a report under section 173 that Abdus Sattar was not guilty. The Magistrate on that report did not choose to summon him. He, on the other hand, started recording evidence and only after he had concluded the evidence of one witness and started recording the evidence of the second witness that he ordered to summon Abdus Sattar. He was not summoned on the police report but on the information which the, Magistrate got from the evidence recorded by him of the prosecution witnesses. Cornelius, J. (as he then was and now the Chief Justice of Pakistan) held: "On the facts stated above, the argument advanced on behalf of the appellant is that in directing the issue of a warrant of arrest against him after the Police Officer had excluded him from the case and the Sub‑Divisional Magistrate who had taken cognizance of the case on the 13th of October 1949, had also not chosen to proceed against Abdus Sattar, but on the other hand, appears to have discharged him from his bail bond (as is indicated by the necessity for issue of a warrant for his arrest) the trial Magistrate took fresh cognizance of the offense against him on the basis of information derived from the evidence of two witnesses examined by him. Such cognizance, for the initiation of judicial proceedings, could only have been taken by a duly empowered Magistrate under section 190, subsection (1) (c) since it could not be said to have been taken on the basis of the police report, and it was certainly not taken upon complaint". The Magistrate on the opinion of the police did not discharge respondent No. 1 under subsection (3) of section 173, and instead decided to proceed against him. He had not any personal knowledge nor an information from any person that an offence had been committed. He only had police, report before him. He obviously took cognizance against respondent No. 1 also on the police report. The facts of the case of Abdus Sattar are thus q distinguishable from the facts of the present case. This point was considered in Mehrab and another v. The Crown (1) and it was held that notwithstanding the fact that it appeared to the Investigating Officer that there was not sufficient evidence against the two persons to justify their forwarding to the Court, it was still a police report within the meaning of sub clause (b). Thus if a person is shown in column No. 2 of the challan and the investigating officer reports that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate for trial, it is competent for the Magistrate to direct that the bond given by the accused be discharged. It would mean that the Magistrate on perusal of the report is satisfied that the report of the police was correct and considered that it was in the interest of justice that no further proceedings should be taken against the accused. The Magistrate, however, is under no obligation to act in accordance with the opinion of the police officer and he can on, the material which is furnished in the report take cognizance of a case against the person whom the investigating officer believed to be innocent or that there was not sufficient evidence to justify his trial. If he takes such an action before he records any evidence, he will be deemed to be acting on the police report within the meaning of clause (b) of subsection (1) of section

190. He would, under the circumstances, not be taking cognizance under clause (c) of subsection (1) of section 190 and that being so the accused cannot object to his being tried by such Magistrate.

5. The learned Sub‑Divisional Magistrate in proceeding against respondent No. 1 although it was reported by the police that there was not sufficient evidence against him, has acted under clause (b) and not clause (c) of subsection (A I R 1924 Sind 71) of section 190 of the Code of Criminal Procedure, and the finding of the learned Additional Sessions Judge to the contrary is not sustainable. The order of the learned Additional Sessions Ju0ge is set aside and the case is remanded to him for the disposal of the appeal on merits. K, B. A. Petition accepted. Case remanded.