P L D 1950 Baghdad﷓ul﷓Jadid 66 (PLP)

Criminal Procedure Code (V of 1898)

Ss. 203, 204 Complaint‑Alagistratemust either dismiss or issue‑process Order staying proceedings pending chalan case against complain ant illegal‑Revision under S. 43.9, Criminal Procedure Code. A.I.R 1936 Lah. 356 ; A I R 1930 Mad 190 and A I R 1924 Cal. 634 referred to. Saleem for Petitioner. Mustafa Khan for Respondent. ORDER.‑

A challan case under section 433, I. P. C. was pending in the Court of Mr. Mustafa Nawaz Khan, Magistrate, 1st Class, Bahawalpur and the present petitioner Master Muhammad Ibrahim is one of the accused. During the pendency of that challan a complaint under sections 347; 352, 504 and 342 I. P. C. was brought by Master Muhammad Ibrahim in the same Court against Muhammad Akbar Khan, Assistant Sub‑Inspector, Police and Allah Rakha and other constables. The learned Magistrate by his order dated the 21st of January 1950 stayed the proceedings in the complaint case till the decision of the challan case. This order is the subject of revision to the Court. Mr. Saleem's contention was that it was not a cross complaint and even if it was, the Court should not have stayed proceedings in it till the decision of the challan case: In cross cases the proceedings should have continued so that the Court could apply its mind to both the cases at a time and give its decision simul taneously. In support of his contention he has referred me to 1924 Ca). 634 1930 Mad. 190 and 1936 Lah.

356. The challan case was absolutely distinct and separate from the complaint case and the Court after proceeding under section 202 Criminal Pro cedure Code should have proceeded either under section 203 or suction 204 Criminal Procedure Code. It was admitted by Mr. 1llustafa Khan on behalf of the, respondent that complaint by Master Muhammad Ibrahim could not be treated as a cross case and consequently it is not necessary for me to discuss the rulings quoted by the learned counsel for the petitioner in extenso though I would treat the principle laid down therein as a salutary one for the guidance of the Courts. Mr. Mustafa Khan therefore concedes to the contention of the counsel for the petitioner, that the Magistrate should either have proceeded under sections 203 or 204 of the Criminal Procedure Code. He should not have thrown the file in cold storage. In the face of the agreement between the two counsels on the point in issue, and the point being so clear that there could not be but an agreement thereon between the counsel, I have no alternative but to treat the order or the Magistrate unsupported by law. He therefore failed to exercise the powers which he ought to have exercised under law and exercised those which he ought not have exercised. The order of the Magistrate therefore should be set aside and is hereby set aside, and he is ordered to proceed with the case in accordance with the law. The file shall go back to him for further proceedings. A.H. Revision accepted.