P L D 1966 Supreme Court 178 (PLP)

Bharat Kishore Lal Singh Deo v. Judhistir Modak A I R 1929 Pat. 473 and Mappillaisami Thevar v. Muthuswami lyer A I R 1949 Mad. 76 ref. A. C. Samaddar v. Suresh Ch. Jana A I R 1949 Cal. 197 considered. Hashim Haji Sharif v. Mir Khan Jan P L D 1950 Bal. 7 distinguished. Muhammad Ashfaq Khan Rao Senior Advocate Supreme Court instructed by Wali Muhammad Senior Attorney for Appellant. Iftikharul Haq Khan Advocate Supreme Court instructed by Ijaz Ali Attorney for the State. Respondent No. 2: Ex parte. Date of hearing: 18th October 1965. . S. A. RAHMAN, J.‑This is an appeal by special leave from an order of the High Court of West Pakistan by which a learned Single Judge of that Court declined to quash the proceedings pending against Shamim appellant in a Magistrate's Court under section 380, P. P. C. The relevant facts may be briefly summarized. One Muhammad Bashir, lodged a first information at Police Station Kabirwala, complaining of the theft of his mare on the night of the 20th and the 21st February 1962. Suspicion had been cast in that report against the appellant as well as another man, Shahmand. After investigation the Police, however, decided to prosecute Shahmand alone for the theft. The challan was submitted in Court against him on the. 7th of October 1962. The complainant, Bashir, filed a petition before the learned Magistrate asking for the issue of process against the appellant as well. Without examining the complainant in pursuance of his complaint, the learned Magistrate, after hearing his counsel and perusing the complaint, issued process to the appellant as an accused person in the case. It was this order which was challenged as illegal in the High Court. The learned Single Judge of the High Court took the view that the Magistrate had committed an irregularity in not examining the complainant before issuing process to the appellant, but that the appellant had not been prejudiced in the case and consequently the trial was not vitiated. Special leave to appeal was granted in this case to consider the question whether in the circumstances of this case it was consistent with the accepted principles of the administration of criminal justice that a person should be placed in jeopardy of losing his liberty merely on the basis of an unverified complaint of a person when the investigating agency had, after investigation, found no prima facie case against the suspected person. The High Court relied on the decisions reported as Mehr Chiragh Din v. The Crown (1) I L R 4 Lah. 359, Emperor v. Bateshar and others (2) I L R 37 All. 628 and Badsha Mia and others v. The State(3) P L D 1958 Dacca 598 for supporting the, proposition that the failure of Magistrate to examine the complainant as required by section 200 of the Code of Criminal Procedure was a mere irregularity, curable under section 537 of the Code and not an illegality such as would invalidate the trial. The ruling cited as Zafar Niaz v. Riazuddin (4) P L D 1958 Lah. 738 was distinguished on the ground that though the learned Judge who decided that case observed therein that under section 200 of the Code, the Magistrate taking cognizance of an offence on complaint, is bound to examine, at once, the complainant on oath and to reduce to writing the substance of the examination, yet it was nowhere laid down that failure to do so would vitiate the trial. Mr. Rao Muhammad Ashfaq Khan who appeared for the appellant before us invited our attention to Hashim Haji Sharif v. Mir Khan Jan (5) P L D 1950 Bal.

7. In that case the learned Judicial Commissioner Quetta, had pointed out that one of the main objects of section 200, Criminal Procedure Code, was to protect the public against false, frivolous or vexatious complaints filed against them in criminal Courts and that Magistrates must not lightly accept written complaints and proceed to issue processes until they had thoroughly sifted the allegations made against the accused and were satisfied that a prima facie case had been made out against those who were accused of criminal offences. We have no hesitation in endorsing these observations. The actual finding in that case, however, was that no criminal case of cheating had been established against the accused and therefore the proceedings were quashed. The learned Judicial Commissioner did not express any opinion in that judgment as to whether a failure to follow the letter of the provisions contained in section 200, Criminal Procedure Code, would involve an illegality. Mr. Iftikharul Haq Khan on behalf of the State cited Bharat Kishore Lal Singh Deo v. Judhistir Modak (1) A I R 1929 Pat. 473 and Mappillaisami Thevar v. Muthuswami 1yer (2) A I R 1949 Mad. 76 in support of the, position that the omission of the Magistrate to examine the complainant in pursuance of his complaint before issuing process, would involve a mere irregularity which would not be fatal to the trial, unless prejudice had resulted to the accused person. It appears that the contrary view was taken in a decision by the Calcutta High Court reported as A. C. Sammadar v. Suresh Ch. Jana (3) A I R 1949 Cal. 197 . The better view, however, seems to be that such a defect in proceedings is a mere irregularity curable under section 537 of the Criminal Procedure Code. It may be observed that the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sine qua non of valid proceedings, in all circumstances. In a case where the complaint has been made by a Court or by a public servant, this section expressly declares that there need be no examination of the complainant before issuing process. There is no provision in the Code to the effect that a failure to follow the provisions of section 200 in respect of examination of the complainant entails invalidation of the proceedings taken. The history of this section apparently bears out the contention raised on behalf of the State that the defect amounts to a mere irregularity and apart from the question of prejudice; would be insufficient to vitiate the proceedings. In the Code of Criminal Procedure, Act X of 1872, express provision was made in the last clause of section 144, to the effect that where the complaint has been made by petition and the Magistrate neglects to examine the complainant, the trial of the person accused, shall not be set aside on this ground. This provision was omitted from the Code of 1898, in view of the provisions contained in section 537 of the Code, which serve the same purpose in more general terms. The explanation to that section says that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings. In the present case we find that the objection to the legality of the process was not taken till after the complainant and some other witnesses had been examined in the case, in the presence of the accused and a charge had been framed against him. Even then the objection was not raised in the trial Court. It was merely mentioned in a transfer application preferred to the District Magistrate and raised later in the High Court. That transfer application succeeded and the case went for disposal to another Magistrate. The appellant had the opportunity to cross examine the complainant and his witnesses, and it does not, therefore, appear that he has been; in any way, prejudiced in his defence. Despite the fact that the Police had exonerated the appellant after recording evidence, the Magistrate found a prima facie case against the appellant and we would be very reluctant to comment on the merits of the evidence on which the charge was based, at this stage of the case. The best course for the appellant would be now to fight out the case in the Magistrate's Court to its conclusion and if he feels aggrieved by the order passed by the Magistrate finally, he would ‑have the usual right of appeal to the Superior Court. No interference appears to be called for by this Court at this stage of the case and we' therefore, dismiss the appeal. A. H. Appeal dismissed.