1990 PLP 2084 (MLD)

It is desirable to state briefly certain facts giving rise to this litigation:

2. On 5‑10‑1980 at 10‑30 p.m. the respondent No.2 lodged F.I.R. against applicants Nazir, Barkat, Nazakat and two others at Drigh P.S. which was registered as Crime No.67 of 1988, under section 148/307/149, P.P.C. After the death of Anwar Ali, brother of respondent No.2, section 302, P.P.C. was added. The case was, however, disposed of by concerned police as untraced. The respondent No.2, therefore, filed a direct complaint against all the five accused, which was received by Sessions Judge, Larkana, who recorded the statement of respondent No.2 under section 200, Cr.P.C. and then forwarded it to Extra‑Joint Civil Judge and F.C.M, Larkana for inquiry under section 202, Cr.P.C. The learned Magistrate conducted an inquiry and submitted his report on 31‑5‑1989, making the following recommendation:‑‑ . "In view of the above circumstances, I am of the opinion that prima facie case against the accused persons under section 302/307/148/149, P.P.C. and 13‑D.A.O. is not made out." The complaint was then transferred to IVth‑Additional Sessions Judge, Larkana for disposal according to law, who took cognizance against the applicants and co‑accused Abdul Sattar and Sajjan. This order dated 23‑10‑1989, passed under section 204, Cr.P.C. is the subject‑matter of this revision application filed under section 439, read with section 561‑A, Cr.P.C.

3. Section 204, Cr.P.C., which deals with. the issue of process provides as follows:‑‑ "

204. Issue of process.‑‑(1) If in the opinion of the Court taking cognizance of an offence there is sufficient ground for proceedings, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, it shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process‑fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Court may dismiss the complaint."

4. For taking cognizance under section 204, Cr.P.C, it is only a prima facie case that is required and the Court is not expected to go into the details by conducting a preliminary trial. If on the basis of the evidence adduced by the complainant, it can to be said that there is prima facie evidence connecting the accused with the crime and the Court is satisfied that there is sufficient ground for proceeding with the complaint, it may issue process against the accused. The only fact that the police had earlier disposed of the case as untraced or that the report of the Magistrate as a result of inquiry conducted under section 202, Cr.P.C. did not support the case of complainant, is hardly a ground to dismiss the complaint under section 203, Cr.P.C.

5. As observed by Supreme Court in M.S. Khawaja v. The State, reported in P L D 1965 S C 287, "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power `to prevent abuse of the process of any Court or otherwise to secure the ends of justice,' would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds, such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law." At page 291, the Supreme Court remarked:‑‑ "To quash a judicial proceeding in order to `secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To end an `abuse' it would be necessary to see in the proceeding a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results."

6. The case of Ghulam Muhammad v. Muzammil Khan and 4 others, reported in P L D 1967 Supreme Court 317, is again relevant in a situation like this, wherein it was held:‑‑ "The inherent jurisdiction given by section 561‑A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved‑ in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeated been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."

7. The other grievance, learned counsel for applicants ventilates is about the issuance of non‑bailable warrants by .learned Additional Sessions Judge against applicants and others. He has contended that section 90 Cr.P.C., requires a Court to record its reasons in writing before doing so. This argument, however, is effectively answered by the language of section 204,Cr.P.C., which I have reproduced above. According to the fourth column of Second Schedule to the Code of Criminal Procedure, 1898, in a case under section 302, P.P.C., a warrant should issue in the first instance,, although in such cases also the Court, if it thinks, fit, may issue a summons to an accused. The issuance of warrant "in the first instance' where according to fourth column of Second Schedule of the Code of Criminal Procedure, 1898, a summons should issue is undoubtedly illegal. The case of A.K. Khalid v. Khan Ghulam Qadir Khan, reported in P L D 1962 Lahore 411, is relevant authority on this point. However, in the present case falling under section 302, P.P.C., a warrant could issue against the accused.

8. Section 90, Cr.P.C. empowers the Courts to issue a warrant only in cases in which it is empowered to issue summons. It was therefore, considered necessary to record reasons before issuing a warrant in such case. It was in this context that In Re: Karuthan Ambalam and another, reported in A I R 1961 Madras 1063, it was held that where a warrant purports to be issued under section 90, Cr.P.C. it is a necessary preliminary for the exercise of the power by the Magistrate that reasons should be given in writing, and failure to do so vitiates the warrant. However, in latter eases reported as Mahar Singh and others v. Emperor (A I R 1920 Allahabad 245(2)) and The Government of Assam v. Sahebulla and others (A I R 1924 Calcutta 1), the issuance of warrant without recording reasons was not found as illegal. In the latter citation a Full Bench of Calcutta High Court held that the words "After recording his reasons in writing" in section 90, Cr.P.C. are. not imperative but directory.

9. The difference between mandatory and directory provisions is one of effect only. According to Bindra's Interpretation of Statutes, the real question in all such cases is whether a thing has been ordered by the legislature to be done? What is the consequence if it is not done? The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. From a plain reading of section 90, Cr.P.C.,it will appear that the requirement of `recording reasons in writing' is only directory.

10. For all the above reasons, no exception can be taken to the impugned order. The record, however, shows that the FIR lodged by respondent No.2 was disbelieved by the concerned police. The Magistrate who conducted the inquiry under section 202, Cr.P.C. also found the complaint baseless. In such a situation the issuance of non‑bailable warrant against the applicants and others was uncalled for. The learned A.A.‑G. has, therefore, submitted that the same may be substituted by bailable warrants. I would, therefore, direct that the order of issuance of non‑bailable warrants be substituted by bailable warrants in the sum of Rs.50,000 (Rs. fifty thousand only) with one surety for each. With the above modification in the impugned order, the criminal revision application is otherwise dismissed. N.H.Q/N‑305/K Order accordingly.