1995 PLP 604 (MLD)

(i) It was suffering from infirmity and legal error as the learned Sessions Court had referred the complainant to the Joint Civil Judge and F.C.M. for holding preliminary enquiry without examining the complainant. (ii) There was no iota of truth in the allegations made in the complaint. The learned Sessions Judge did not like to touch the first observation to test the propriety of his order, perhaps on account of its stinging effects on his intellect, but at the same time he did not like to interfere with the observations and findings enlightened by the learned Joint Civil Judge & F.C.M. in support of his calibre to dismiss the complaint of the petitioner.

3. The High Courts, while exercising revisional jurisdiction under sections 435 and 439, Cr.P.C., must refrain from interfering with an order of dismissal of a complaint by a Court competent to take cognizance unless there is a question of propriety, legality or correctness of any order of the subordinate Court. It would have been most appreciable if the learned Sessions Judge had discussed the first observation made by the learned F.C.M. before mounting upon his second observation because the same touching his jurisdiction. For the sake of convenience the relevant provisions of the Code of Criminal Procedure are reproduced below:‑‑‑ Section 202(1): Postponement of Issue of Process.‑‑‑Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by a police‑officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200. (2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1) direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. (3) ............................................... (4) ............................................... Section

203. Dismissal of complaints.‑‑‑The (Court) before whom a complaint is made or to whom it has been transferred. (or sent) may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.

4. In the present case, the petitioner/complainant had submitted the direct complaint before the Court of S.D.M., Mirpurkhas, Since the sections of P.P.C. applied in the complaint were attracting the offences triable by the Court of Sessions Judge, therefore, the complaint was transferred by the S.D.M. to the Sessions Judge who had powers to dismiss the complaint, if, there was in his judgment no sufficient grounds for proceeding, after‑‑‑ (i) considering the statement on oath (if any) of the complainant, and (ii) the result of the investigation or inquiry (if any) under section

202. Thus it is evident that the learned Sessions Judge should have proceeded, after receiving the complaint, from the stage envisaged in section 200, Criminal Procedure Code by recording the statement of the petitioner on oath. He could issue process if he felt so advised or postpone the issue of process for compelling the attendance of the person complained against, and either inquire or investigation to be made by a police officer or by such other person as it thought fit for the purpose of ascertaining the truth or falsehood of the complaint but no such directions could be made unless the complainant had been examined on oath under the provision of section 200, Cr.P.C. It appears from the record that the statement of the complainant was recorded on solemn. affirmation by the learned Joint Civil Judge and F.C.M. which he was not competent to do in law because‑ such statement could only be recorded by the learned Sessions Judge himself as and when the private complaint was received by him under section 190(3), Cr.P.C. Moreover the learned Sessions Judge was not supposed to jump into the deep appreciation or depend upon the observations, if any, made by the Magistrate at the preliminary stage for the final disposal of the complaint as was done by the learned Sessions Judge in this case.

5. On account of the reasons listed above, I am of the considered opinion, that the abovementioned substantial error of law is not curable under section 537, Cr.P.C. therefore all the proceedings taken by the learned Sessions Judge from the stage of his order sending the case to the learned Joint Civil Judge and F.C.M. for enquiry without having recorded the statement of the complainant on oath stand vitiated, with the result that the revision is allowed, order of the learned Sessions Judge dated 27th day of March 1994 is set aside and the case is sent back to the learned Sessions Judge for fresh proceedings in accordance to the provisions of law as discussed above. N.H.Q./A‑1514/K Revision allowed.