P L D 1964 (W (PLP)

(3) Ghulam Rasool son of Allahdad Mirasi resident of Line Par, Nawabshah." The matter was fixed for the 2nd of August, but since the applicant was not served, it was called up again on the 6th August, on which date the applicant again failed to appear as he was ill. Instead, applicant's counsel appeared before the S. D. M. and filed his power. It is now stated at the bar that a representation of the entire case on behalf of the applicant was made to the learned Magistrate, but no order was passed and the matter was adjourned to the 12th August, the learned S. D. M. insisting, according to counsel, that the applicant do produce Mst. Mariam before him. On 12th August 1963, a certified copy of a plaint filed by Mst. Mariam in S. No. 90 of 1963, for declaration and dissolution of marriage with the respondent No. 2, was produced before the learned S. D. M. but it is stated that the learned S. D. M. refused to drop the proceedings, and insisted again on the production of Mst. Mariam, and adjourned the matter for the 29th August. It is also stated that on the 6th August En oral application was made for a certified copy of the application filed by respondent No. 2, but the learned S. D. M. refused to grant it. Thereafter an application was made to this Court, and on the 27th August 1963, the case papers were called for, and stay of further proceedings was ordered on the 16th September 1963, by my learned brother Raymond, J.

4. Mr. Ibrahim Memon for the applicant has urged this application on the ground that the order of the learned S. D. M. dated 1st August 1963, earlier referred to, cannot be upheld as it fails to comply with the provisions of section 200, Cr. P. C. since it is obvious that the learned S. D. M. had proceeded to take cognizance of the complaint made by the respondent No. 2, and had failed to examine the complainant on oath, which it was necessary under the provisions of this section.

5. Section 200, Cr. P. Code enjoins as under :

"

200. A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint on oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate Provided as follows (a) When the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192 ; (aa) When the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant, in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties. (c) When the case has been transferred under section 192, and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred, shall not be bound to re‑examine the complainant."

6. The contention of Mr. Khas Kheli for respondent No. 2, is that upon the R and P, ‑as has been produced, it should be presumed that the learned S. D M. proceeded to take cognizance not under section 200, but under section 190, Cr. P. C., and that it should be further presumed that the learned S. D. M. acted under the provisions of clause (a) of subsection (1) of this latter section. The relevant portion of this section reads as follows :‑ " 190 (1) (a). Except as hereinafter provided, a District Magistrate, or Sub‑Divisional Magistrate and any other Magis trate, specially empowered in this behalf, may take cognizance of any offence. (a) upon receiving a complaint of facts which constitute such offence." On a plain reading of the above, it is clear that only the District Magistrate or a Magistrate specially empowered, can proceed to act under it, and that the learned S. D. M. could not do so.

7. Mr. Khas Kheli also relied on Badsha Mia v. The State (P L D 1958 Dacca 598) where two Judges of that Court observed that the Magistrate takes cognizance of a case only if he applies his mind to the complaint and proposes to proceed under section 200, Cr. P. C., and that the examination of the complainant on oath under such circumstances is not always obligatory, and failure to do so, is an irregularity. Further that a Magistrate may, without examining a complainant on oath, send on a complaint to the police for registering a case.

8. I am firmly of the view that by the manner in which the order dated 1st August 1963, was issued, and the wordings of that order, that the learned Magistrate had proceeded to take cognizance of the complaint made to him by respondent No. 2 and acted under the provisions of section 200, Cr. P. Code. The relevant words are :‑ " Please bind down the following persons to appear in this Court on 2nd August 1963, at 7‑30 a.m. without fail."

9. In Azizur Rahman v. The State (P L D 1960 Dacca 1054) Rahman, J. observed that section 200, Cr. P. C., makes it clear that the examination of a complainant can only succeed and not precede the taking of cognizance, for it is an act to be done after the taking of B the cognizance or whatever might amount to taking cognizance, and therefore, when a Magistrate receives a complaint and takes cognizance under section 190 (a) of the Code, and then examines the complainant under section 200, Cr. P. C., then the only inquiry or investigation that he can order is one under section 202 Cr. P. C. and not under section 156 (3) of the Code. The latter part of these observations do not apply to the facts of this case, but on the basis of the earlier remarks of Rahman, J. it is obvious that the S. D. M. Nawabshah had proceeded to act under the provisions of section 200, Cr. P. Code.

10. The learned State Counsel has referred to section 552, Cr. P. C. which empowers a Presidency Magistrate or a District Magistrate to proceed on a complaint for restoration of abducted females. The provisions of this section will also not apply as the learned S. D. M. Nawabshah is neither a Presidency Magistrate nor a District Magistrate.

11. From what I have heard from the three counsel appearing in this case, I am firmly of the view that the order of the learned S. D. M. cannot be sustained, and must be quashed. 1I may state in passing that in the course of these proceedings in this Court Mst. Mariam, who is the bone of contention between the parties, has filed an affidavit dated 26th August 1963, where in she has admitted that she was married to the respondent No. 2, and that she has been divorced by him in the presence of witnesses, and that she had voluntarily appeared before the section 30 Magistrate at Nawabshah, and filed an application, the original of which she produced with her affidavit. She has further stated that since her divorce, she has been making a living by doing odd jobs and working in the house‑holds of various families, and that she had filed a suit for dissolution of her marriage with respondent No.

2. Mr. Memon states that this suit has been decreed ex parte on 30th September 1963.

12. For reasons given earlier, the proceedings before the learned S. D. M. Nawabshah are quashed. The respondent No. 2 will be at liberty to file a fresh complaint, if so advised. K. B. A. Proceedings quashed.