1981 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 192-Transfer of criminal case-Raiding Magistrate himself taking cognizance of case but realizing illegality transferring same to another Special Magistrate, WAPDA without any order from District Magistrate, as required under S. 192, Cr. P. C.--Whole of trial, held, suffered from illegality-Conviction set aside.--[Transfer of criminal cases). Sharif Hussain Bakhari for Appellant. Nemo for the State. Date of hearing : 13th May, 1981. This is a revision petition filed by Sh. Muhammad Hussain, petitioner, against the judgment of an Additional Sessions Judge of Lahore dated 8th April, 1981 dismissing his appeal, but reducing his sentence to the payment of fine of Rs. 2,000 only or in default to undergo three months' R. I. Earlier, the Special Magistrate WAPDA, Lahore, by his judgment dated 22nd August, 1979 had convicted the petitioner under section 379, P. P. C. read with section 39-A of the Electricity Act, 1910, and senten ced him to six months' rigorous imprisonment and a fine of Rs. 2,000 or in default to undergo further three months' rigorous imprisonment. 2. This revision petition, can be disposed of on a short ground as urged by the learned counsel for the petitioner, namely, that as no prosecution cart be instituted against any person for any offence against the Electrictly Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector or of a person aggrieved by the same and since the prosecution in the instant case was not instituted at the instance of the Government or the Electric Inspector Or by the WAPDA or by any person duly authorised by WAPDA as provided under section 12/20 of the WAPDA Act, XXX1 of 1958. WAPDA being the person aggrieved, the institution of the challan/complaint against the petitioner was illegal and the Special Magistrate, WAPDA was, therefore, not competent to accept or process the said challan/complaint. It was also submitted that Ch. Muhammad Sharif, Special Magistrate WAPDA, Lahore, who took cognizance of the case and framed the charge against the petitioner on 3rdOctober, 1979, happened to tie a member of the raiding party and had himself signed the recovery memo Exh. P. A. and appeared as P. W. 1 in the case, could not have acted as a Judge in the case. 3. I have given my anxious consideration to this case. Before I, admitted this case, on 22ndApril, 1981, I called the Director, Commercial Surveillance, WAPDA House, Lahore, to appear in person in Court on 2ndMay, 1981 and to show under what authority of law the prosecution had been initiated against the petitioner. On 2nd May, 1981 Mr. Ijaz Rubbani, Director, Commercial Surveillance, WAPDA, Lahore, appeared in Court and admitted that the Line Superintendent, WAPDA, who registered the case, was not competent in law to do so, as he had not been delegated the said power by Notification No. 42803/OB/Com/A-7 dated 21stNovember, 1964 issued by the WAPDA for carrying out the purposes of section 50 of the Electricity Act, 1910. From the said notification it appears that eight persons have been delegated the said authority, but the Line Superintendent, WAPDA, does not figure therein. In these circumstances, the case was initiated against the petitioner by a Derson not having authority to do so and the Special Magistrate WAPDA, Lahore, was incompetent to take cognizance of the case. If any authority is required for this view Nasibur Rehman v. The State (1977 P Cr. L J 109) and Dina Nath v. Emperor (A I R 1935,64. 191) may be referred with advantage. Still further, Ch. Muhammad Sharif, Special Magistrate, who was a member of the raiding party and appeared as P. W. 1 in Court, had himself first taken cognizance of the case and charge-sheeted the petitioner but later realising that he was committing an illegality, had himself transferred the case to another Special Magistrate, WAPDA, without proper order from the District Magistrate, as required by section 192, Cr. P. C. In these circumstances, the whole trial suffers from an illegality and the conviction and sentence of the petitioner is not justified in law. 4. For the foregoing reason this petition is accepted and the judgment of the learned Addition to Sessions Judge, Lahore, dated 8th April, 1981, is set aside. The fine if realised from the petitioner, shall be refunded to him. Revision allowed