1968 P Cr (PLP)

The petitioner, Mr. M. B. Zaman, who is a Senior Advocate of the Supreme Court and also an Advocate of long standing of this Court, was summoned as a witness by respondent No. 1, Rana Muhammad Sarwar Khan, Magistrate Ist Class, Lahore, in case entitled State v. Raja Muhammad Ayub, etc., fixed for 9th December of 1967 before him. The summons had been served on the petitioner on the 8th of December 1967. As the petitioner had professional engagements on the 9th of December 1967, he sent his Clerk, namely, Sheikh Muhammad Amin to the Court of respondent No. 1 at 9 a.m. in order to adjust his pro gramme for the purpose of his appearance before respondent No. 1 it was found that respondent No. 1 had not turned up to commence his work. While the petitioner was busy in his professional engagements, he again sent his aforementioned Clerk to the Court of respondent No. 1 between 10 or 11 a.m The clerk returned with the information that the case had been adjourned to the 6th January 1968. It appears that respondent No. 1 did take up the case sometime after 9 a.m. and respondent N

9. I passed the following order without making any effort to find out as to whether the petitioner intentionally omitted to attend his Court:- Respondent No. 1

In pursuance of the above order drew up a complaint against the petitioner under section 174, P. P. C. and sent it to the Additional District Magistrate, Lahore, who forwarded the same for trial to Mr. Mahmood Ahmad Khan, Magistrate 11 Class, Lahore. On the 4th of January 1968, a process server came with bailable warrants from the Court of respondent No. 1 for appearance of the petitioner on the 6thof January 1968. The petitioner in pursuance of the same appeared on that date and his statement as a witness was recorded. The petitioner's Clerk, Sheikh Muhammad Amin, who also happened to be a witness in the case, although having not been summoned or served with any summon, voluntarily appeared before the Court and his statement was also recorded The petitioner was not informed by respondent No. 1 that be had made a complaint against him under section 174, P. P. C. which was fixed up for 23rd of January 1968, the petitioner received summons from the Court of Mr. Mahmood Ahmad Khan, Magistrate II Class, Lahore, to appear as an accused person on the 23rd of January 1968 for allegedly having committed an offence under section 174, P D C. on the complaint filed by respondent No. 1 on the 9th of December 1967. The summons had been issued without making any inquiry under section 202, Cr. P. C. The petitioner has now moved this Court under section 439 read with section 561-A of 0 the Code of Criminal Procedure for the quashment of the order log dated the 9th of December of 1967 of respondent No. 1 and Ft quashing the proceedings pending against him (the petitioner) before the trial Magistrate Mr. Mahmood Ahmad Khan.

2. It was contended by Doctor Nasim Hassan Shah, learned ` Advocate for the petitioner, that the necessary ingredient of section 174, P. P. C. is wilful disobedience of the summons from any public servant legally competent to issue the soma;. In the present case there was no material before respondent No. I that the petitioner had wilfully or intentionally omitted to appear on the 9th of December 1967. The mere omission to appear, according to the learned counsel, did not constitute an offence as contemplated by section 174, P. P. C., which reads as follows:- "whoever, being legally bound to attend in person or by an agent at a certain plate and time its obedience to a summon, '' notice, order or procl4mation proceeding from any public servant legally competent, as such public servant same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." Respondent No. 1 has also filed a written statement in which he has not denied that on the En of December 1967 the petitioner's clerk had come to his Court twice to find out about the case. All what is mentioned in the written statement is that since the petitioner had not turned up in spite of personal service, he filed the complaint as already mentioned above. In para graph 3 of the written statement it is mentioned, that when the case was called up for hearing, the petitioner was not present to give his evidence nor was there any information on his behalf that for any reasons he could not be present in the Court. Since the accused in the case was also an Advocate, he and his counsel insisted that either the accused should be discharged or the Court should proceed to take action against the prosecution witnesses, c``' who failed to appear in spite of their personal service. "In view of the above the learned counsel for the petitioner contended that the order dated the 9th of December 1967 was passed by respondent No. I in order to placate the accused in that case, hence the order was mala fide. Learned counsel for respondent No. 1 vehemently denied that the order in question was mala fide, and that it was not incumbent upon respondent No. 1 to either hold an inquiry or give a show cause notice to the petitioner in order to find out as to whether the petitioner's absence was wilful, before drawing up complaint under section 174, P. P. C. This would mean that the Magistrate has to act mechanically without applying his mind to find out as to whether an offence under section 174, P. P. C. has been committed, before drawing up the complaint. In case George Burgh Mcnair v. J. D. Campbell and others (A I R 1918 Cal. 240) solicitor of a well known position in Calcutta, having been served with a notice by a Commissioner to attend before him to give evidence and produce a letter written to him by his client, did not appear before the Commissioner, but wrote a letter saying that he could not produce the letter, as it was a privileged one, being under the mistaken notion that his attendance was required only for the production of the document. Thereupon the Commissioner returned the commission unexecuted, and the Court, which was in a district far off from Calcutta called upon solicitor to show cause why he should not be prosecuted under the provisions of section 174, I. P. C. He "that having regard to the position of the solicitor and the circumstances of the case, the procedure of the Court was not justified" . In case Mul Singh v. Emperor (A I R 1923 Lab. 163) it was observed:- "That the word `intentional' seemed to limit the application under section 174 to cases where the omission was clearly wilful and was not intended to be applied to case where the omission arose from some circumstances which rendered it impracticable for the person to attend." From the above rulings it is clear that it was the duty of the Magistrate before drawing up the complaint under section 174, P. P. C. to find out as to whether the omission of the petitioner to attend the Court was wilful or not. In the present case I find that there was no material at all before respondent No. 1 to have come to the conclusion that the petitioner had willfully disobeyed the order of the Court by not attending on the 9th of December1967. As already mentioned above he is a Senior Advocate of the Supreme Court and an Advocate of long standing of this Court and, therefore, there cannot be any question of wilful disobedience of the summons by him. Even the learned Assistant Advocate General conceded this point and stated that the complaint was misconceived. From the perusal of paragraph 3 of the written statement it appears that respondent No. I had passed the re levant order on the 9th of December 1967 when Raja Muhammad Ayub, who is an accused in the case before him and his counsel, insisted that either the accused should be discharged or the Court should proceed to take action against the prosecution witnesses, who failed to appear in spite of service. In other words the order was passed in order to placate Raja Muhammad Ayub. Further the fact that respondent No. 1 took the extreme step of passing the order only against the petitioner and not against the other witnesses, who had failed to turn up in spite of service, shows that the order against the petitioner was not only uncalled for, but also mala fide.

4. The learned trial Magistrate should have also held an inquiry under section 202, Cr. P.. C. because one of the objects behind this provision is to enable him to scrutinise; carefully the allegations made in the complaint with a view to prevent an accused person from being called upon to face an obviously frivolous complaint. In fact it was his bounden duty to make an inquiry to elicit all facts before issuing summons to the petitioner.

5. In the result I accept the petition, set aside the order dated the 9th of December 1967, of respondent No. 1 and quash the proceedings pending against the petitioner before Mr. Mahmood Ahmad Khan, Magistrate 11 Class, Lahore.