1977 P Cr (PLP)

Abdul Qayyum Bhatti for the State. Dates of hearing : 26th February and 4th March 1975. This application has been filed under section 561-A, Cr. P. C. for quash ment of the criminal proceeding under section 420,/406, P. P. C. against the petitioner, arising from a direct complaint made before the Assistant Com missioner, Chunian, on 16-5-1972, by the respondent. The Assistant Commissioner on the same day sent the complaint to the Tehsildar/ Magistrate Second Class, Chunian under section 202, Cr. P. C. for inquiry and report. The report which was received on 31-5-1972, was to the effect that the dispute between the parties was of a civil nature for which the complainant should approach the civil Court. It appears that the learned Assistant Commissioner had, in the meantime, examined the complainant and some of his witnesses under section 200, Cr. P. C. on 26-5-1972. He, therefore, notwithstanding the report submitted by the Tehsildar, found material against the petitioner for proceeding under section 420/406, P. P. C. and accordingly, by his order dated 17-8-1972, summoned the petitioner.

2. The quashment is sought on the basis of the contentions that (1) the complaint could not have been legally sent for judicial enquiry under section 202(1), Cr. P. C. without first examining the complainant on oath under section 200, Cr. P. C., and (2) no criminal offence had been made out against the petitioner. For the first contention that the proceeding had been vitiated by the failure of the learned Assistant Commissioner to examine the complainant before referring the complaint to the Tehsildar for enquiry and report, reliance was placed on a Dacca authority reported as Abdul Majid v. M. Mansur Ali etc. (1969 P Cr. L J 692), wherein it had been held:- "The order for judicial enquiry under section 202, Cr: P. C. without examining the complainant under section 202, Cr. P. C. as has happened in this case, is quite contrary to law and as a result, the proceedings of judicial enquiry and the order of dismissal passed thereon are void and have no legal effect." A similar view had been taken in Sayed Sikandar Shah v. Mst. Chan Bibi (A I R 1942 Pesh. 61), but there the aggrieved person had been the complainant himself whose complaint had been dismissed without even recording his statement under section 200, Cr. P. C. In a similar situation, however, the Allahabad High Court in Ram Gir v. Ravisaran Singh and others (A I R 1935 All. 883) had treated the omission as a technical irregularity and had declined to interfere in the exercise of its revisional jurisdiction invoked by the complainant. The point was elucidated in Dulan (Dulam) Dayal Singh and others v. Emperor (A I R 1945 Oudh 102) in the following words: "Failure by the Magistrate to take the statement of the complainant on oath before sending the case for investigation under section 202 is an irregularity which is cured by section 537 and does not vitiate the trial so long as the accused have not been prejudiced." It appears, therefore, that the effect of omission to examine the complainant has not been without controversy. But the controversy was laid to rest in Shamim v. The State (P L D 1966 S C 178) wherein their Lordships held:- "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." This view was followed by this Court in Mst. Allah Bandi v. District Magistrate, Sargodha (1969 P Cr. L J 547). In the matter before me it cannot be said that the accused-I petitioner had been prejudiced by non-examination of the complainant before) referring the matter to the Tehsildar. He has also come after about 2 years of the order of summoning him in the criminal case. The irregularity, if any, stands cured and the criminal proceeding is, therefore, not vitiated.

5. The application, therefore, fails and is accordingly dismissed. Petition dismissed.