P L D 1983 Lahore 397 (PLP)

This petition seeking quashment has been filed by the two petitioners who have been summoned by the City Magistrate, Lahore to face trial for an offence under section 209; P. P. C. on a Police Qalandara through a private complaint.

2. The brief facts of the case are that the petitioners are out of many persons who filed Writ Petition No. 240/R-79. The writ petition was disposed of through a consent order of the contesting parties. I n this writ petition, tile petitioners had claimed that Rahirnabad Rawalpindi was declared as Katchi Abadi by the Chief Settlement Commissioner and in that respect he had signed a draft notification. The genuineness of this notification which was produced in the High Court in the course of these proceedings was seriously - challenged. The parties agreed and the Court accordingly ordered that the Member, Board of Revenue/Chief Settlement Commissioner would determine after notice to the parties concerned as to whether he had passed an order declaring Rahimabad as Katchi Abadi or signed the draft notification. The Chief Settlement Commissioner thereafter, vide order dated 5-1-1981, held that no such notification was issued by him.

3. One of the respondents in the writ petition namely, retired Major Aftab Ahmad Khan Afridi moved an application before the Deputy Inspector-General of Police, Lahore praying for registration of a criminal case against the above 80 persons including the present petitioners. The matter was then marked to the P. D. S. P. who expressed the view that the case attracted the provisions of section 209, P. P. C. which was non-cognizable and bailable. For this purpose, he placed reliance on a Division Bench decision of this Court in re : The State v. Mian Fazal Elahi (P L D 1970 Lah. 383). Consequently, S.

1. Police Station Old Anarkali on 27-1-1981 prepared a Qalandara under section 209, P. P. C. and submitted it in the Court of City Magistrate, Lahore, who ordered the summoning of 80 accused including the two petitioners.

4. On being so summoned, the petitioners moved an application under section 249-A Cr. P. C. for their acquittal. The learned City Magistrate, Lahore after hearing the petitioners and the learned counsel for the State dismissed this application vide his order dated 11-6-1981. The acquittal had been sought on the ground that the City Magistrate was not competent to hear the case because no complaint had been made by the Court before whom the offence was alleged to have taken place and that the matter is already pending in the civil Court. The petitioners relied on the provisions of section 195(1)(b), Cr. P. C. in support of their case. The learned Magistrate repelled the contention of the petitioners insofar as it was based on the pendency of civil litigation. Insofar as the objection on the basis of section 195(1)(b) was concerned, he contented himself by observing that the provisions of section 195, Cr. P. C. were not attracted in the circumstances of the present case, therefore, the application was rejected.

5. The petitioners thereafter filed a quashment petition before this Court which it is stated was withdrawn on the ground that they would like to file a revision petition before the learned Sessions Judge in the first instance. .This revision petition was dismissed by a learned Additional Sessions Judge vide order dated 30-6-1982. He was of the view that since all the accused bad not appeared, therefore, the petition was premature. He further observed that the learned counsel for the petitioners had not been able to point out any irregularity in the impugned order and he found no justification to interfere. Hence this quashment petition.

6. The learned counsel for the petitioners has argued that the complaint filed in this case by the S. I. through the rival party in the writ petition was not competent in view of the provisions of section 195(1)(b), Cr. P. C. because for taking of cognizance and assumption of jurisdiction the mandatory requirements of law had to be fulfilled. According to him, on the plain language of the statute, no Court shall take cognizance of any offence punishable under section 209, P. P. C. when such offence is alleged to have been committed in, or in relation to. any proceedings in any Court, except on the complaint in writing of such Court or some other Court to which such Court is subordinate. This pre-requisite not having been fulfilled, according to the petitioners, the cognizance taken and the proceedings afoot before the learned Magistrate were without Jurisdiction. The learned counsel in support of his case has placed reliance on the following precedents : (1) Chandrabai K. Gidwani and another v. Abdul Quddus Bihar! P L D 1966 Kar. 122 ; (2) Qaim Din and 3 others v. The State and another 1977 P Cr. L J 546 ; (3) The State v. Syed Sardar Shah Bukhari P L D 1975 Lab. 1407 ;

6. Gidwani's case is by a learned Single Judge from Karachi jurisdiction. In this case it was held on interpretation of section 195, Cr. P. C. that City Survey Officer and Custodian Evacuee Property were Courts within the meaning of section 195, Cr. P. C. In the facts of that case, it was held that complaint could only be filed at the instance of Survey Officer and not private individual. Mr. Justice H. T. Raymond after elaborate discussion held as under : "Now this mutation was done by the City Survey Officer who as held by the Bombay High Court in the case referred to above and reported in A I R 1936 Bom. 221 is a Court within the meaning of section 195(2), Cr. P. C. Hence, this complaint could only be filed at this instance and, therefore, because of the bar of section 195(1), Cr. P. C. I must hold that this complaint is not maintainable and quash these proceedings now pending against the applicants in the Court of the City Magistrate, Hyderabad." Next comes the case of Qaim Din also from Karachi jurisdiction, which was decided by a learned Single Judge. Apart from the other aspects dealt with in this judgment which are not relevant for the purposes of the present case, this decision is an authority for the proposition that a complaint in respect to an offence covered by section 1951 Cr. P. C. could not be filed by a private party and has to be filed by Court seized of the matter. In this decision, reliance has been placed on a Division Bench judgment of the Lahore High Court in re. The State v. Syed Sardar Shah Bnkhari (P L D 1975 Lah. 1407). The latter decision proceeded on the interpretation of section 195 and in particular section 476, Cr. P. C. as it stood before its amendment by the Law Reforms Ordinance, 1972. However, the ratio of this case which still holds good and is relevant for the purpose of present proceedings is that omission or non-compliance with these provisions would not amount to merely an irregularity curable under section 537, Cr. P. C. but would be a case of lack of complete jurisdiction in Court which would result in' whole proceedings being vitiated. This dictum will apply with full force to the facts of the 'impugned proceedings. No doubt the present case has arisen when sections 476 and 476-A, Cr. P. C. stand substituted by Law Reforms Ordinance, 1972 but this does not in relevant respects alter the scheme of section 195.

7. The precise question arising for consideration is whether the Magistrate in this case is competent to take cognizance of the case which on respondent's own showing was triable under section 209, P. P. C. and was alleged to have been committed in, or in relation to, proceedings before the High Court in the course of decision of the writ petition in constitutional jurisdiction. I am of the view that section 195, Cr. P. C. as is evident from its opening words "No Court shall take cognizance." is couched in prohibitory terms. It ordains in absolute terms that no Court shall take cognizance of any offence mentioned in clause (b) of subsection (1) of section 195 except on the complaint in writing of such Court or of some other Court to which such Court is subordiante. The foundation of jurisdiction of the learned Magistrate in this case would have only been laid had the complaint in writing been filed by the High Court. This patently has not been done. Therefore, on a plain reading of section 195 the condition precedent for exercise of jurisdiction by the learned Magistrate in this case was not fulfilled and resultantly he would appear to have no jurisdiction to take cognizance of the offence on complaint filed before him.

8. A reference in passing may be made to the provisions of sections 476 and 476-A, Cr. P. C.,. as they stand after amendment by the Law Reforms Ordinance, 1972. The scheme of section 476 in its present form appears to be that when an offence referred to in subsection (1) clause (b) or (c) of section 195, Cr. P. C. has been committed in, or in relation to, a proceeding in any Civil, Revenue or Criminal Court, then that Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials. Under section 476-A, however, such Court may, after recording the facts constituting the offence and the statement of the accused-person, forward the case to a Court having jurisdiction to try the case and may require security to be given for the appearance of such accused-person before such Court, or, if sufficient security is not given, shall forward such person in custody to such Court. Then subsection (2) thereof provides that a Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provided. On a combined reading of these two provisions, it appears plain that a Court referred to in section 476 read with section 195, Cr. P. C. may itself take cognizance of the offence or forward the case under section 476-A, Ci. P. C. to a Court having jurisdiction to try the case. This Court has already taken the view in the case of Sufi Muhammad Din v. Alst. Tahira Tasnim and 6 others (P L D 1978 Lah. 1410) that in respect of cases covered by the provisions of sections 195, 476 and 476-A, Cr. P. C. ordinary criminal Courts which have jurisdiction to try the cases would remain competent to do so but would not be able to try the same and take cognizance unless and until provisions contained in sections 195 and 476-A, Cr. P. C. are complied with. Therefore, in any view of the matter the jurisdiction of a Magistrate is dependent upon the prescribed procedure having been followed as mentioned above. The procedure adopted in the present case would have the unwholesome effect of flouting the parent provisions of a statute and the policy of law which cannot be permitted to be done.

9. I am, therefore, on a combined reading of the provisions off section 195, as well as 476 and 476-A, Cr. P. C., clearly of the view that the' learned Magistrate in this case was incompetent to take cognizance of the offence under section 209, P. P. C. unless the complaint filed before him fulfilled the mandatory requirements of having been instituted upon a, complaint in writing of the Court concerned. The prosecution therefore launched in this case whether on a Qalandra submitted by the police or on a private complaint would be wholly without jurisdiction. This being the position, it is undisputable that the impugned proceedings in its inception, being incompetent, the continuance thereof would be nothing short of abuse of the process of the Court.

10. I would accordingly quash this complaint and the proceedings based thereon and pending in the Court of the City Magistrate, Lahore. M. A. K. Proceedings quashed.