P (PLP)

S. A. RAHMAN, J.‑Muhammad Yar was prosecuted under section 182 Pakistan Penal Code in the Court of Chaudhri Muhammad Ahsan, Magistrate First Class, Muzaffargarh. He was found guilty and sentenced to pay a fine of Rs. 100 or in default to suffer two months' rigorous imprisonment. An appeal was taken against the conviction and sentence to the Court of the Additional Sessions Judge, Muzaffargarh. The learned judge pointed out that the trial had not been proper as the trial Magistrate did not examine the Sub‑Inspector, Thana Kot, Addu, who had lodged the complaint. He, therefore, allowed the appeal and remanded the case with the direction that the officer making the complaint should be allowed to prove it and a fresh finding given after consideration of the whole evidence on the record. As the Magistrate, who had tried the case, had proceeded on long leave, the District Magistrate was authorised to make over the case to some other competent Magistrate. Against this order, a revision petition has been filed in this Court on behalf of the accused. In order to appreciate the points urged on behalf of the petitioner, it is necessary to set out the, material facts that led to the prosecution of Muhammad Yar. The latter had made a report at Police Station Muzaffargarh on the 19th April 1949 to the effect that his son, who had gone to 'see his sister, was given a beating by Sona and six other persons, with hatchets and sticks. After investigation, the police reported to the Ilaqa Magistrate that the case ought to be cancelled. On the 20th May 1949, the petitioner made a complaint to the Magistrate that the police was spoiling the case and requested that the complaint be proceeded with against seven persons who were named in the complaint. The learned Magistrate convicted one out of these seven persons under section 323 Pakistan Penal Code and fined him Rs. 70. He acquitted the remaining six accused. When the police requested that the petitioner should be prosecuted under section 182 Pakistan Penal Code; the trial Court awaited the result of the complaint which had been lodged by the petitioner. After its disposal; the trial was proceeded with and the petitioner fined as mentioned above. The main contention raised by the learned counsel for the petitioner is that as the report to the police had been followed by a complaint in Court, prosecution under section 182 Pakistan Penal Code was not permissible and only the Court that had tried the complaint could order the petitioner's prosecution under section 211 Pakistan Penal Code, if so advised. In support of this contention, the learned counsel cited Sarup Singh Murat Singh Chhatri v. Emperor, (A. I. R. 1939 Nag. 226), Murugan and others v. Gutha Rami Naidu (A. I. R. 1927 Mad. 851), Chunarmal Nihalmal v. Emperor (A. I. R. 1929 Sind 132), Rambrose v. Emperor. (A. I. R. 1928 Rang. 254), Bajaji Appaji Kote v. Emperor, (A. I. R. 1946 Bom. 7), Ghulam Rasul v. Emperor (A. I. R. 1936 Lah. 238), and Shah Muhammad v. Emperor (A. I. R. 1941 Lah. 216). On the other hand, learned counsel for the Crown referred to Prag Datt. v. Emperor (I. L. R, 51 All. 382) (equivalent to A. I. R, 1928 All. 765), Daroga Gope v. King Emperor (I. L. R. 5 Pat. 33) Jamini Kanta Ghose v. Bhabanath Jaisi Barman (A. I. R. 1939 Cal. 273) and Ma Paw v. Emperor (A. I. 8. 1931 Rang. 12) as authorities for the opposite view. There apparently is some conflict of opinion on the point involved. Analysing, however, the authorities relied upon by the learned counsel for the petitioner, I find that in A. I. R. 1939 Nag. 226, the point really decided was that a complaint by the police under section 211 Pakistan Penal Code does not lie after a complaint on the same facts has been entertained by a Court. Incidentally, it vas observed by the learned judge deciding that case that it would be undesirable for the police to lodge a complaint even under section 182 Pakistan Penal Code as that was a lesser offence included in that falling under section 211 Pakistan Penal Code. In these circumstances, I do not regard this as an authority pertinent to the present case. It is to be noted that, when an offence falling within the purview of section 211 Pakistan Penal Code is alleged to have been committed in or in relation to any proceeding in Court, cognizance of such an offence cannon be taken of, by any Court except on a complaint in writing by such Court or of some other Court to which such Court may be subordinate, by virtue of clause (b) of subsection (1) of section 195 of the Criminal Procedure Code. This limitation, however, is not in terms applicable to an offence falling within the ambit of section 182 Pakistan Penal Code, which inter alia is mentioned in clause (a) of subsection (1) of section 195 of the Code of Criminal Procedure. In such a case the complaint in writing must proceed from the public servant concerned or some other public servant to whom he is subordinate. In the present context, this would mean a complaint by the police officer concerned or some superior officer in the Police Department. The above remarks apply also to A. I. R. 1927 Mad. 851. It was held therein that when a person who preferred a false charge to the police has also taken the same facts by way of complaint to a Magistrate, then, before that person could be prosecuted under section 211 Pakistan Penal Code, the complaint to the Magistrate is necessary. In the same category fall the cases reported as A. I. R. 1929 Sind 132; A. I. R. 1946 Born. 7 and A. I. R. 1936 Lah. 238. In the last mentioned case, there was actually no complaint to a Magis trate, but on the strength of the fact that on a police ‑ report the Magistrate bad cancelled the case, it was held by Blacker, J. that a complaint by the police would not be competent. 'Ibis extreme view was dissented from expressly in a later Full Bench decision of this Court reported as Crown v. Hayat, (I. L. R. 28 Lah. 645). It was held therein that a Magistrate, cancelling the case on a police report under section 173 of the Code of Criminal Procedure, acts merely as an administrative or ministerial officer and not as a Court, and, therefore, the complaint lodged by the police could not be said to be in relation to any proceedings in Court. The only authorities that appear to be directly in point favouring the petitioner are A. I. R. 1928 Rang. 254 and A. I. R. 1941 Lah. 216. The authority of the Lahore ruling was very much shaken by the Full Bench decision mentioned above, as it apparently relied for support on A. I. 8.1936 Lah. 238. In the Rangoon case a, false allegation of robbery had been made in a report to the police and on the same allegations a complaint lodged in a Court. It was laid down by the learned judge deciding that case that the offence alleged against the petitioner fell both under section 182 and section 211 Pakistan Penal Code and his prosecution under section 182 would be quite improper, as it would violate the general principle that a prosecution for a lesser offence should not be launched where the facts constitute a graver offence. Obviously the graver offence falling within the ambit of section 211 Pakistan Penal Code could only have been tried on a complaint by the Court concerned. In I. L. R. .51 All. 182, a learned Single Judge of the Allaha bad High Court took the view that the offence, if any, committed by the petitioner was complete, before he went to Court with his complaint, as soon as he had lodged the false report with the police and, therefore, it could not be said that the offence was one com mitted in or in relation to any proceeding in Court. That too, however, was the case of a complaint under section 211 Pakistan Penal Code and to my' mind different considerations apply in the case of such a complaint as compared with one under section 182 Pakistan Penal Code. This distinction was clearly drawn between the nature of complaints falling under sections 1S2and"2ll Pakistan Penal Code, in I. L. R. 5 Pat. 33. It was held that a' complaint under section 182 Pakistan Penal Code could be proceeded with, though not one under section 211 Pakistan Penal Code if the petitioner had gore to Court on the same allegations as he had put forward before the police. The view taken by Bbide, J. in A. I. R. 1941 Lah. 216 was not approved of by a Division Bench of this Court in Nota Rain v. Emperor (A. I. R. 1943 Lah. 31). So far as this, Court is concerned, therefore, the view taken in A. I. R. 1941 Lah. 216 must be held to have been abandoned. A Division Bench of the Rangoon High Court also differed in A. I. R. 1931 Rang. 12, from the decision in A. I. R. 1928 Rang. 254. It was held that where the offence fell both under sections 182 and 211 Pakistan Penal Code the conviction of the petitioner under section 182 Pakistan Penal Code could not be regarded as illegal when there was no possibility of a prosecution under section 211 Pakistan Penal Code. The Calcutta High Court in Laehmi Shaw v. Emperor (A. I. R. 1932 Cal. 383 (1) ) committed itself to the view which favours the petitioner. But, another Division Bench of that Court in Jamini Kanta Ghose v. Bhabanath Jaisi Barman (A. I. R. 1939 Cal. 273) adopted the contrary opinion. A careful consideration of the above authorities and the language of section 195 of the Code of Criminal Procedure, leads to the conclusion that a prosecution under section 182 Pakistan Penal Code cannot be regarded as illegal even though the, charge made before the police may have been taken to Court subsequently; where the possibility of a conflict with the action or opinion of tile Court concerned ceases to exist. In the present case, obviously, no conflict is involved between a prosecution under section 182 Pakistan Penal Code and the action of the Court in which the complaint was lodged. That Court has expressed no opinion as to the desirability or otherwise of petitioner being prosecuted. I do not see why in such a case the complaint under section 182 Pakis tan Penal Code should not be allowed to proceed. I do not, therefore, see much force in the contention raised on behalf of the petitioner and dismiss the revision petition. K. M. A. Revision dismissed.