P L D 1962 (W (PLP)

2. Karam Dad went in revision to the Court of Session, where it was contended on his behalf that the Magistrate was not justified in discharging the accused without recording at least some evidence after the challan had been put in. On behalf of the accused it was contended that the order of the Magistrate in fact amounted to a cancellation of the case and that this was not a revisable order.

3. The learned Sessions Judge observed that as the original challan bad not been withdrawn and there was only the report of the Prosecuting D. S. P. recommending discharge, the action of the Magistrate was not one under section 173 of the Code of Criminal Procedure. Further the order passed by the Magistrate was not of an administrative character because "he had passed this order on the ground that the facts as given in the F. I. R. were divergent from those as divulged subsequently". He therefore accepted the petition and directed further inquiry. From this order Tikka Khan and his party have come in revision.

4. The Prosecuting D. S. P., while making his report and recommending discharge, explained that a "report of the case" will be sent separately. He was apparently referring to a report under section 173 of the Code of Criminal Procedure, and I will assume for the purpose of this case that such a report, that is, a report for the cancellation of the case, has been submitted by the investigating officer. I will also assume that the Prosecuting D. S. P. is the superior officer of police through whom all police reports pass under the directions of the Government under section 158 of the Code of Criminal Procedure. The veracity of both these assumptions should be ascertained by the Advocate -General before the case comes up for hearing again.

5. The question is whether after the police has sent a report under section 173 for the trial of a case and before any steps have been taken towards the commencement of the trial, the ' Magistrate can, on a second report by the police recommending cancellation, accept the second recommendation and not proceed with the trial of the first challan.

6. Under section 169, if it appears to the, investigating officer that there is no sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond and direct him to appear, if and when so requir ed, before a Magistrate empowered to take cognizance of the case on a police report. Under section 170 (1), if it appears to the police officer that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report.

7. Under section 173 (1), when the investigation is complet ed the police officer shall forward to the Magistrate a report 1n a prescribed form which has come to be known as a challan, stat ing, among other things, whether the accused (if arrested) has been forwarded in custody, or has been released on his bond. Under subsection (3), when it appears from the report forwarded under subsection (1) 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."

8. Section 190 provides that a Magistrate "may take cogni zance of any offence" (a) upon a complaint, (b) upon a police report or (c) upon information received by himself.

9. Section 204, which is the first section of Chapter XVII, headed "of the commencement of proceedings before Magistrates" is to the following effect: "If in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for pro ceeding . . . . . . " he may issue a summons, or warrant for the attendance of the accused.

10. These are all the provisions relevant to the present case. It is clear that under section 173(3), a Magistrate may agree or may not agree with the police report. What he can do if he disagrees is a different matter and does not arise before me. In the present case he apparently did not disagree when the challan came. But he had taken no steps before the Prosecuting D. S. P. sent his recommen dation for the discharge of the accused. If the mere presentation of the challan amounts to the taking of cognizance then, in my opinion, the Magistrate should proceed with the trial and himself decide upon the evidence whether or not he should discharge the accused. If, however, he has not taken cognizance of the challan and a second report comes to him recommending cancellation, since it is open to him to act under section 173 (3), he may accept the second recommendation and cancel the case. The question of trying the accused will not then arise.

11. My attention however has been drawn to a Division Bench judgment in Muhammad Nawaz v. The Crown (48 Cr. L J 774) which does not agree with this reasoning., In that case the police had presented a challan against two persons, Muhammad Iqbal and Mehbub, on the 15th of June 1945 and the case was adjourned to 21st June. But on the 20th of June an application was made by a D. S. P. that there was reason to believe that the accused were innocent and that, in order to enable the police to investigate the case further, it was necessary that the two accused should be enlarged on bail and orders for further investigation should be obtained. The two accused were, therefore, bailed out and further investigation was ordered by the Magistrate. On the 27th July the police presented a fresh challan, this time against Muhammad Nawaz (who was the informant in the previous challan) and three other persons. They presented a separate challan against Muhammad Nawaz alone for false complaint punishable under section 194, I. P. C. and an application for the discharge of Muhammad Iqbal and Mehbub under section 173 (3) of the Code. This application was allowed, but a revision petition having been made to the Sessions Judge, that officer referred for decision the following two questions to the High Court:‑ (1) After the challan has been forwarded by the police to a Court, whether the police is empowered to make farther investi gation either by the order of the Court or otherwise? (2) After the receipt of the challan, can the Court discharge the accused under the provisions of subsection (3) of section 173 of the Code of Criminal Procedure without hearing the prosecu tion evidence ? The answer to the first question was in the affirmative and to the second in the negative. On the second point it was held that the provisions of subsection (3) of section 173 related exclusively to cases provided for in section 169, that is, where the police officer has released an accused person on his own bond to appear if required by the Magistrate and has reported that there is no suffi cient evidence or reasonable suspicion against him. "Section 173(3) provides no power to a Magistrate to discharge an accused person, after he had taken cognizance of an offence alleged against him under section 190, Criminal Procedure Code". It was assumed that the Magistrate had taken cognizance of the offence when the challan was presented to him. It was further observed: ‑ "He was already seized of the case, by virtue of the cognizance taken on June 15, 1945 on the basis of the police report, dated June 10, 1945. The opinion of the police that the two accused persons were innocent, was not sufficient to deprive the learned Magistrate of his jurisdiction or to relieve him of the obliga tion imposed by the Criminal Procedure Code to continue the proceedings against Muhammad Iqbal and Mehbub until their proper termination as provided by law."

12. In the first place, I am not very clear that the moment a challan is presented the Magistrate takes cognizance of the case, and there are authorities for both views, but it would appear more sensible if he was supposed to take cognizance by a cons cious act leading to the trial and not by the mere fact that a challan had been received in his office and he had become aware of it by affixing a signature somewhere or in some other manner. Secondly, since it was open to the police to conduct another investigation and to make a report for the cancellation of the case as a result of the second investigation, it was also open to the Magistrate to accept the second report under subsection (3) of section

173. What will happen if he accepts this report and cancels the case while at the same time he is conducting a trial as a result of the first report ?

13. In view of the fact that this matter has been decided in a Division Bench, I would refer the case to a Full Bench. The questions to be answered are:‑ (1) Whether when a challan is received by a Magistrate, he takes cognizance of the case ? (2) Whether in the event of a second report by the police recommending cancellation of the case, he can accept the report before he has started with the trial in pursuance of the first challan ? JUDGMENT OF THE FULL BENCH KAYANI, C. J., SHABIR AHMED AND S. A. MAHMOOD, JJ.‑We are of the opinion that it would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a police challan bas been presented before bim.1 When a police officer makes a report under section 173 of the Code of Criminal Procedure that an offence has been committed, the section itself does not say what steps the Magistrate will take, and there is no further provision to meet the situation before we reach section 190, which provides that a Magistrate may take cognizance of an offence upon a police report. In other words, the police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magis trate Intends to start the proceeding. In a case where a Magistrate cannot take cognizance of an offence without the sanction of Government to prosecute and the sanction arrives a day after the police report is received by the Magistrate, it will be unreason able to argue that the Magistrate had taken cognizance of the offence before the sanction bad arrived. He may keep the case waiting until the sanction arrives and then pass some order to show that he intends to hold a trial. In the case of an incomplete challan, as in this case, although the Magistrate could start the trial, if he keeps it waiting until another report should come or until whatever is wanting should be made up, he clearly does not take cognizance of the offence. If, therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case.

2. We were told by learned counsel for the respondent that the cancellation could not be under subsection (3) of section 173, and that apart from that subsection there was no other provision which enabled a Magistrate to cancel a case. Subsection (3), he argued, was applicable to a case where the accused had been released on his bond under section 169, which provides that if it appears to the police officer that there is not sufficient evidence to justify the forwarding of the case to a Magistrate, such officer shall release the accused on a bond requiring him to appear before a Magistrate empowered to take cognizance of the offence and to try the accused or to commit him for trial. If this argument is accepted, then, in the event of an omission by the police officer to release the accused on a bond, the Magistrate will not be empowered to discharge the accused or to cancel the case even if the police officer had reported that there was no sufficient evidence against the accused. We think that such power is inherent in section 173 read with section 190 of the Code of Criminal Procedure, though the language of subsection (3) does not directly apply to the case.

3. We answer the reference accordingly. KAYANI, C. J.‑Since in the present case the Magistrate had power to cancel the case, and he cancelled it, there was no occasion j for the Sessions Judge to hold that the accused had been discharged and that consequently he had power to order a retrial. The accused could have been discharged only if some evidence had been recorded. The case does not fall within the revisional jurisdiction of the Sessions Judge, whose order directing further inquiry is, therefore, set aside. A. H Order accordingly.