P L D 1974 Karachi 248 (PLP)

"It is clear to us that under section 202 if he distrusts the statement of the complainant, he must record his reasons. In any case he is bound to record his reasons for distrusting the complainant." In this case, however, there were other and more serious reasons for setting aside the order in question inasmuch as the Magistrate had taken the view, wrongly, according to the High Court, that the complaint did not disclose any offence. This of course does not take away from the full force of the passage which I have quoted inasmuch as it is clear that the learned judges did consider that by itself a sufficient reason for reversing the order passed.

6. Reliance is next placed upon the case of Muniruddin v. Abdul Rauf (I L R 40 Cal. 41), where the language is even stronger, for at page 43 the learned Judges observed: "Now coming to the merits of the matter, the learned Magistrate admits that he is out of Court, inasmuch as he did not record any reasons for dismissing the complaint. It is an imperative provision of the law which has been specially enacted in the latest amendment of that law in section 203, Criminal Procedure Code. The law says that in such cases he shall briefly record his reasons for dismissing the complaint. There can be no question of irregularity where the provisions of the statute are imperative and are directly disobeyed. We need not go into the other points, inasmuch as if the order of' dismissal is without jurisdiction and altogether bad there must be a further enquiry, and there cannot be any proceeding under section 211 until such further enquiry has been made." With great respect, I am unable to agree that the provision in section 202. may properly be described as an "imperative provision"; in the sense that it lays down what shall be done. It is of course imperative but in that sense all the sections of the Cr. P. C. which lay down which is required to be done: are couched in the same language but I do not think that all of them can be given the same quality of imperative force because to do so would render section 537 entirely meaningless.

7. Reliance is next placed upon Balallall Mookerjee v. Pashupati Chatterjee (17 Cr. L J 396), which is also a Calcutta case and in which following the earlier decision of the Court in I L R 14 Cal. 141 the learned Judges held that under section 202 reasons must be recorded. There were other reasons also for setting aside the order of the Magistrate but it would only be fair to, counsel for the petitioner to say that the judgment clearly does support what he is contending for.

8. Reference was next made to a Sind case decided by a Division Bench and reported in Gaji v. Jumanshah (13 Cr. L J 749). It is true that in this case the learned Judges did observe that an order under section 202 could only‑ be passed after reasons were recorded in writing. But the learned Judges did not on that account reverse the order of the Magistrate as there was a graver error in the case. In this case process had actually issued and as the learned Judges pointed out the stage at which the Magistrate's discretion for directing a preliminary enquiry could be exercised was therefore already over. This case is clearly, therefore, distinguishable.

9. Counsel finally relied upon another Sind case namely, the case of Crowder v. Morrison (A I R 1926 Sind 194), where indeed it was observed, following I L R 14 Cal. 141‑ that reasons ought to be recorded but here again the reason why the order of the learned Magistrate was set aside was not merely that he failed to record his reasons. The learned Judges observed:‑ "If the learned Magistrate doubted the bona fides of the complainant, it was incumbent on him to examine the complainant at some length to test his veracity, and to ascertain if his statements had a substantial foundation. If such examination created a doubt or distrust in his mind as to the bona fides of the complaint, it was his duty to record his reasons for postponing the issue of process till further inquiry. He has done neither; and, therefore, there are no data for the higher Court to hold that his action in postponing the issue of process was justified" Clearly the learned Judges decided to set aside the order of the Magistrate because in the absence of the statement of the complainant and the reasons why a preliminary enquiry was ordered it was difficult for the higher Court to say that the order passed by the Magistrate was correct.

10. Upon this question counsel finally relied upon the directions given in the Federal Capital and Sind Courts Criminal Circular which is a com pilation of the circulars issued by this Court and its predecessor Courts for the guidance of Criminal Courts subordinate thereto. At page 99 the following passage occurs: "When a complaint whether oral or in writing is made to a Magistrate, he should make the examination of the complainant sufficiently full to satisfy whether there are any grounds for proceeding. It shall not be necessary for him to examine the complainant when a complaint in writing is made (a) by a Court or by a public servant acting or purporting to act in the discharge of his official duties, or (b) when a Magistrate empowered under section 192 of the Criminal Procedure Code decides to transfer the complaint to a subordinate Magistrate. He should not postpone issue of process and hold a preliminary inquiry, except for sufficient reasons to be strictly recorded m writing. Similarly he must record his reasons for dismissing the complaint under section 203." (Chap. VI, Part I, Para. 1). Now these circulars are intended for the guidance of the criminal subordinate Courts but they are neither in themselves statute nor judicial pronouncements though of course they are entitled to very great respect and are in fact intended to be an exposition of the law for the purpose of instruction of the subordinate Courts. In the ultimate analysis, however, the question must depend upon the interpretation of the statutory provisions themselves; all that the circulars say and can say is, what ought to be done. The question of considering whether an order should be set aside on this ground does not arise for consideration by the Magistrate's Court but only for the High Court and the circulars are not intended for the instruction of the High Court itself. There can of course be no doubt that section 202 ought to be followed; the question before me, however, is that when it is not strictly complied with does the law necessarily require that the order should be set aside or must this Court weigh the question whether any injustice has thereby been caused and then reach the conclusion whether or not the order must be set aside. As have already said I am not of the view that the order must necessarily be set aside unless there has been a miscarriage of justice. The view that has been expressed in the cases that I have so far cited is not one which has uniformly been accepted and many cases could be cited in support of the opposite proposition but I think one should suffice and I refer to the case of Dharamdas v. Pilcher (A I R 1931 Sind 113), where a Division Bench of the Sind Judicial Commissioner's Court took an opposite view.

11. In the present case I am quite unable to see how any miscarriage of justice has been occasioned merely because of the failure to record reasons or that any prejudice has been caused to the petitioner. All that has happened is that the entire evidence which the petitioner could lead has in fact been led but has failed to satisfy the Magistrate of the correctness of his case. It is of course open to the petitioner to argue that the evidence was in fact sufficient but that is a different question altogether. All that I A am examining is whether the mere failure to record reasons has occasioned any miscarriage of justice or prejudice to the petitioner and I am firmly of the view that it has not.

12. It might be noted in passing that this contention was not raised before the learned Sessions Judge and, since the learned Judge had jurisdiction himself to set aside the order of the Magistrate and to order a further enquiry he was, for the present purpose, a Court of concurrent jurisdiction with the High Court and not merely a recommendatory Court. If the petitioner is to succeed I must, therefore, set aside the order of the learned Sessions Judge and it would seem incongruous to set aside that order upon a ground which has never taken before him. I am far from saying that if I regarded the provisions of section 202 as being imperative in the sense that a non compliance with them necessarily vitiated the proceedings or if I had come to the conclusion that there has been prejudice to the petitioner the consideration that the contention was not raised before the Sessions Judge would have been fatal to the case of the petitioner. Upon that point I have separately come to the conclusion that the order ought not to be‑ disturbed upon that mere ground.

13. The next contention raised is that the learned Sub‑Divisional Magistrate in dismissing the complaint under section 203 has not applied his own mind but has merely followed the opinion of the Enquiry Officer, that is to say, the Mukhtiarkar and F. C. M. This is not, I think, a fair reading of the Sub‑Divisional Magistrate's order. It is true that he does say that the Mukhtiarkar and F. C. M. has found the case of the complainant doubtful but this is preceded by the statement that after a careful considera tion of the entire record and proceedings he himself is satisfied that there is no ground for proceeding. He then goes on to set out his reasons which he prefaces by the remark in reference to the First Class Magistrate. There is no other reference to the F. C. M. at all; the rest of the passage is taken up with a statement of the evidence produced and the reasons for rejecting it. Upon an entire reading of the order there is no doubt, I think, that the learned Sub‑Divisional Magistrate is stating as his own opinion that no real case has been made out.

14. Exception was then taken to the statement in the order of the Sub‑Divisional Magistrate that the petitioner had failed to produce certain telegrams which he alleged that he had sent to the Deputy Inspector‑General of Police and the Martial Law Authorities, and in support of the contention that they were in fact produced before him it has been pointed out to me that the statement of the complainant does in fact say so although, as the learned Sub‑Divisional Magistrate states, no copy of these is to be found on the record. Before me a certified copy of the telegram has been produced and, upon my enquiry, learned counsel stated upon instructions that his client had obtained two certified copies of the telegram one of which was placed before the Magistrate and the other has been produced now. I am not at all satisfied with this explanation. I could understand that two copies had been obtained in advance in order to meet the contingency of needing them for a higher Court. But in that case I would have expected that a second copy might well have been produced before the learned Sessions Judge. However, be that as it may, a certified copy that has been produced before me shows that telegram was signed by Haji Muhammad Ibrahim: the words "Muhammad Ibrahim" have then been cut off and the words "Muhammad Ismail" written. Counsel explains, as was stated by his client before the Magistrate, that the petitioner is also known as Muhammad Ismail. This may be for, it is not at all uncommon that a person is known among his friends also by a name other than his real one. But when the person himself signs one would expect that he would sign by his real name and not by some other name by which his friends or relations are wont to call him. I do not think, therefore, that the fact that the learned Magistrate, has among his reasons relied upon the failure of the complainant to produce the telegrams is immaterial in the present case.

15. Finally it is argued that the learned Magistrate's observations that there are contradictions in the evidence of the witnesses was not a good ground for his rejecting their evidence. Now it is impossible to lay down a hard and fast rule as to when contradictions do and when they do not make evidence incredible. It can hardly be argued that the existence of contradic tions is not a proper consideration to be regarded in the assessment and if learned Magistrate has been impressed by it I do not see that his order can be said to be erroneous on that account.

16. On the whole, therefore, I do not see any reason for interfering in this case and this revision application is dismissed accordingly. S. A. H. Revision not allowed.