1970 P Cr (PLP)

"Perused the application of Mst. Aliman. Persuad her statement under section 200, Cr. P. C. and statement of Mange Shah under section 202, Cr. P. C. Also perused the case file in which Mange Shah Exh. 1, Waris Ali Exh. 2, Shahabuddin Exh. 3 and Aliman Exh. 4 all have stated that Sultano w/o Kaloo and Ramzan son of Abdullah also took part in this quarrel fight and inflicted injuries. All these 4 P. Ws. have deposed that Ramzani alias Tara son of Chanda was not there at all. He is therefore, discharged under section 253, Cr. P. C. Sultano w/o Kaloo and Ramzan son of Abdullah are hereby ordered to be produced as co-accused.' Issue B. W. against them in the sum of Rs. 1,000.00."

3. This order is assailed by the learned counsel for the petitioners on the ground that it was illegal or in any case improper because it was passed without considering the report of the police officer to whom the case had been referred for enquiry. Reliance is placed on the language of subsection (1) of section 202, Cr. P. C. which reads as follows:- "Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under section 192, may, if he thinks fit for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case him self or, if he is a Magistrate other than a Magistrate of the Third Class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint." It would thus be seen that under this section a Magistrate may postpone the issue of process to the accused persons in order to ascertain the truth or falsity of the complaint. This he can do, either by enquiry into it himself or by directing an enquiry or investigation by a Magistrate subordinate to him or by any police officer or any other person. The object of this section is to separate unfounded from substantial cases even at the outset and thereby to ensure that no person shall be compelled to answer a criminal charge unless the Court is satisfied that there is a prima facie case for, proceeding and Issuing process against the accused person. Such an enquiry or investigation is designed to afford the Court an oppor tunity of either conforming or removing any hesitation it may feel in respect of issuing process against the accused.

4. It is no doubt not necessary that a Magistrate should call for an enquiry or investigation under this section in every case. It is only when he "thinks fit" that he may do so. He has, however, to choose one of the two alternatives namely, either to enquire into the case himself or to direct an enquiry or investigation. He cannot obviously have recourse to both. This point has been dealt with at length in the case of Pulin Behari Ghose v. The King (55 C W N 653), which has been approved in a case of the Dacca High Court, namely, Azizur Rahman and others v. The State and another (P L D 1960 Dacca 631), which has been published twice in (P h D 1960 Dacca pp. 631 and 1054). His Lordship the present Chief Justice of the Supreme Court of Pakistan while dealing with this aspect of the case observed as follows. "All the previous decisions of the Indian High Courts were exhaustively reviewed by Das, J. of the Calcutta High Court in the case of Pulin Behari Ghose v. The King and it was pointed out that, it is desirable that Magistrate taking cognizance of offence of complaint should keep in mind the difference between an order under section 202 and one under section 156 (3) and take one of the two courses indicated in the last mentioned decision and not make a composite order which only results in creating confusion when a complaint is filed before a Magistrate, he should either take cognizance of it under section 200 and proceed under Chapter XVI or send the complaint to the Officer in-Charge of the police station directing him to treat it as the First Information Report under section 154 and to proceed under Chapter XIV. He should not make a hybrid composite order such as he has been done in this case `and further that' the police Magistrate having proceeded under Chapter XVI had no jurisdiction to direct the police to investigate under Chapter XIV and the trial Magistrate acted wholly without jurisdiction in proceeding on the charge-sleet, submitted there after and that such action rendered the whole proceeding illegal from beginning to end."

5. Similarly, it has been repeatedly held, that where a Magistrate has ordered an investigation by another person, he cannot follow it up by an enquiry himself, without consider ing' the report of such investigation. The case may, however, be different if the Magistrate is dissatisfied with the result of the investigation. I may this connection refer with advantage to a case reported as Krishna Bala Dasi v. Niroda Bala Dasi (A I R 1925 Cal. 989). The facts of that case were that on a complaint being filed the Sub Deputy Magistrate distrusted the truth of the complaint and directed an investigation under section 202, Cr. P. C. Having done so, he should hale waited for the result of that investi gation; but instead of waiting for the report he issued summons against the petitioner as the report had not arrived and because, he thought that the case could no longer be kept pending. It was held by a Division Bench consisting of Suhrawardy and Mukerji, JJ that this action would hardly be considered as having been the result of a proper exercise of judicial discretion on the part of the Magistrate and his order summoning the petitioner was accordingly set aside on this ground. Reference may also be made to an Allahabad case reported as Ram Pershad v. Moil and others ((1913) 14 Cr. L J 493) wherein it was held that when a Magistrate has once acted under section 202 and ordered an investigation by a person other than 'himself, he is precluded from following up the latter's local investigation by an inquiry in the absence of the accused. Similarly in Tayab Ali Yusuf Ali Behari v. Hassain All Yusuf Ali Behari (A I R 1937 Nag. 389) it was observed by Grille, Offg. C. J. that "the irregularity of the Magistrate in beginning a fresh inquiry on his own account under section 202 after having sent the case for inquiry to a Magistrate and receiving his report is clear." In a Division Bench case of the Patna High Court reported as Bindeshwar v. Rambhujhawan (I L R 29 Pat. 1059) it was laid down that where a Magistrate doubts the truth of the complaint and orders a judicial enquiry under section 202 of the Code of Criminal Procedure he should not proceed further with the case until the doubts have been removed by the receipt of a report by the officer who holds the judicial enquiry, and further if it is found that the original person appointed to hold the enquiry is unduly delaying the matter, the enquiry should be entrusted to someone else, but in no case should process be issued against the accused until a report has been received and considered. Lastly, I may refer to a later case of the same High Court reported as Radha Kishun Sao v. S. K. Mirza and an other (A I R 1949 Pat. 36) wherein it was held by Das, J. that after a Magistrate had directed an enquiry by a-subordinate Magistrate, subsequent order by him that he would hold fresh enquiry himself would be irregular. It does not appear that a contrary view has been taken in any other reported decision. In any case none has been cited before me.

6. The position thus Appears to be incontrovertible that where the Magistrate after the perusal of the complaint and the statement of the complainant postpones the issue of pro cesses for compelling the attendance of the persons complained against and directs an enquiry or investigation be made by another Magistrate subordinate to him or by police officer or by such other persons as he thinks fit for the purposes of ascertaining the truth or falsity of the complaint, he should not summon the accused person unless he has considered the report of ,the enquiring officer, for the simple reason that there is no material before him to dispel the doubt in his mind which initially prompted him to order enquiry before sum moning them.

7. It is no doubt true that the Magistrate had jurisdic tion to sommon the accused persons immediately on the receipt of the complaint and examination of the complainant on solemn affirmation. However, when he prima facie distrusts the 8 truth of the complaint, he is empowered under section 202 of the Code of Criminal Procedure to direct an enquiry for ascertaining of the truth or falsehood of the complaint. It is, therefore, not a sound exercise of judicial discretion on his part to issue process before doubt, which was at the root of the submission of the case for enquiry, was removed. It is obvious that where a Magistrate distrusting the truth of the complainant directs an investigation under section 202, Cr. P. C. but instead of waiting for the report issues summons or warrants against the petitioners, the order is irregular, because no fresh materials were before him to remove the doubt which he initially entertained.

8. It may also be mentioned that in the initial F. I. R. filed by Mange Shah husband of respondent No. 1, the petitioner No. 1 was not mentioned as having caused any injury to Mst. Aliman. She was assigned an active part in the com plaint dated 7-6-1968 which was filed more than six months after the alleged incident. The depositions of P. Ws. Mange Shah and Waris Ali recorded by the learned Magistrate also do not seem to support the belated allegations made in the complaint. Mr. Manzoor Hussain, the learned counsel for the State has conceded before me that in view of the complete absence of evidence against the petitioner No. 1, the proceedings against her are an abuse of the process of the Court.

9. For the reasons given above, I accept this revision application and set aside the order dated 14-9-1968; passed by the learned Additional City Magistrate, Karachi.

10. I would however, like to make it clear that this order shall not preclude the learned Magistrate from proceeding according to law after the receipt of the report of the police officer. The learned Magistrate shall then be at liberty to issue process against both or either of the two petitioners after a careful consideration of all the facts and circumstances of the ease. Revisional accepted.