P L D 1963 Dacca 997 (PLP)

3. It appears that the learned Subordinate Judge actually held a preliminary enquiry and ordered that a complaint should be sent to the competent Court of the Magistrate against the opposite‑parties under such section of the Penal Code as might be found to be appropriate in the present case.

4. The opposite‑parties thereupon preferred an appeal and the learned Additional District Judge took the view that as the alleged offence was in the nature of one under section 183 of the Penal Code, the entire proceeding under section 4)'76 of the Code of Criminal Procedure, was unwarranted. He also found that the order of the learned Subordinate Judge was vague and in this view of the matter he allowed the appeal and dismissed the miscellaneous case started on the basis of the application under section 476 of the Code of Criminal Procedure. The prayer for lodging the complaint was refused and the complaint itself was ordered to be quashed.

5. The decree‑holder petitioner has come up in revision against the said order of the learned Additional District Judge. Both the learned Advocates appearing on behalf of the parties in this case have addressed us at length. As the point involved in this case appeared to be very important one we requested the learned Deputy Legal Remembrancer also to assist us in this connection. The learned Deputy Legal Remembrancer has also assisted us considerably in the matter with regard to all the bearings of the question involved in this case. It can hardly be disputed on a reference to the scheme of section 195 read with section 476 of the Code of Criminal Procedure that an enquiry of the kind as made in this particular case by the learned Subordinate Judge could be said to be very much justified if the alleged offence could be placed under either clause (b) or clause (c) of sub section (1) of section 195 of the Code of Criminal Procedure. As the alleged offence was in the nature of a resistance offered to the taking of some property by the lawful authority of the process server under the orders of the Court it could be placed if at all, under section 183 of the Pakistan Penal Code. In that view of the matter the offence complained of could be a subject‑matter of complaint within the meaning of section 195 (1) (a) of the Code of Criminal Procedure which requires no preliminary enquiry envisaged under section 476 of the said Code. In this particularly case, however, it appears that the learned Subordinate Judge did formally embark upon an enquiry as provided in section 476 of l the Code of Criminal Procedure which would be relevant only if clauses (b) and (c) of section 195, Criminal Procedure Code were attracted. The undisputed nature of the case being that clauses (b) and (c) of section 195, Criminal Procedure Code cannot be attracted it is difficult to hold that the enquiry as made by the learned Subordinate Judge was at all necessary or justified. It is also difficult to conceive of a complaint based upon an enquiry under section 476 as a good or proper substitute for one under section 195 (1) (a) of the Code of Criminal Procedure.

6. Reliance has been placed by the learned Advocate for the petitioner, who has more or less been supported by the learned Deputy Legal Remembrancer, to certain decisions in the cases of Rajshahi Banking and Trading Corporation Ltd. v. Surendra Nath Mitra (A I R 1945 Cal. 434) and Ramesh Chandra Poddar and others v. Hari Mohan Poddar and another (42 C W N 531). Mr. Salam has also relied upon certain decision in the case of Dore Sah v. King Emperor (A I R 1927 Oudh 326) and King Emperor v. Ram Nath Bux Singh at page 51 of the same volume. He has also referred to rule 262 of the Civil Rules and Orders, Volume 1 and pointed out that the requirements as indicated in that rule cannot be said to have been fulfilled. In view of the particular position of this case that the enquiry as made under section 476 of the Code of Criminal Procedure was not neces sary, the question naturally arises as to how far the learned Addi tional District Judge could be said to be right in ordering that the complaint as made by the learned Subordinate Judge should stand quashed. It is true that the procedure as adopted by the learned Subordinate Judge could not be very much justified or regular. But it cannot be gainsaid that the learned Additional District Judge should have also considered the desirability of quashing‑the order of complaint altogether after consideration of the peculiar circumstances of the case. In our view there could be no serious difficulty if the learned Subordinate Judge appeared to have applied his mind to the nature of the circumstances as made out in the report of the process server and exercise his discretion authorised under section 195(1)(a), Criminal Procedure Code and then made an order of complaint if ends of justice in his opinion required so. On a reference to the judgment of the learned Subordinate Judge it is difficult to detach the portion dealing with his findings in the enquiry under section 476 of the Code of Criminal Procedure. I feel, therefore, that although the complaint as made cannot be said to be a proper complaint within the meaning of clauses (6) and (c) of section 195(1) read with section 476, Criminal Pro cedure Code yet in the interest of justice it is necessary that the learned Subordinate Judge should examine the peon's report and consider other circumstances and exercise his discretion in terms of section 195 (1) (a) of the Code of Criminal Procedure for the purpose of making a complaint, if at all. It does not appear, as I feel from the records, that while embarking upon the enquiring and deciding in favour of making a complaint, he was conscious of the fact that the circumstances of the case required him to exercise his discretion by reference to section 195(1)(a) and not to the other provisions of the said section read with section

476. Criminal Procedure Code. For all these reasons I should think that the matter requires further consideration in the hands of the learned Subordinate Judge.

7. The result, therefore, is that this Rule is made absolutes and the judgment and order as passed by the Courts below are set aside and the case is remitted to the learned Subordinate Judge for disposal of the matter according to law as contemplated under clause (a), subsection (1) of section 195 of the Code of Criminal Procedure.

8. SALAHAUDDIN AHMED, J.‑

I agree with the order passed by my learned brother. I, however, wish to make a few obser vations of my own in this matter.

9. The matter appears to me rather simple and the only question that required consideration was as to whether the com plaint made by the learned Subordinate Judge in the present ease was legally made under the Code of Criminal Procedure. The facts of the case have been given in detail by my learned brother and I need not repeat the same. Suffice it to say that all the parties agreed that the complaint being in regard to an offence tinder section 183 of the Pakistan Penal Code came under section 195 (1) (a) of the Code of Criminal Procedure. The proceedings which finally led to the lodging of the complaint, however, was taken under section 476, Criminal Procedure Code at the instance of the decree‑holder who is petitioner before us. A mere reference to section 476 of the Code of Criminal Pro cedure makes it quite patent that that section is applicable only C to the cases coming under clauses (b) and (c) of subsection (1) of section 195 of the Code. It was, therefore, entirely unnecessary for the learned Subordinate Judge as has been pointed out by my learned brother in his judgment, to launch on an enquiry under section 476 of the Code. The entire proceeding under that section is misconceived anti has no basis in law. Section 195(1)(a) of the Code states as follows: --‑ "No Court shall take cognizance of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate". It will be noticed that this clause does not contemplate any enquiry either judicial or otherwise to enable the public servant concerned to lodge a complaint. All that is required is that in the case of an offence punishable under sections 172 to 188 of the Pakistan Penal Code a complaint in writing must be made by the public servant concerned or of some other public servant to whom he is subordinate. On the facts and circumstances of the present case I was inclined to think that the requirements of this section had been complied with. If an enquiry whether judicial or otherwise which is not contemplated under the section was in fact launched by the learned Subordinate Judge such enquiry was entirely a surplus age and was not required under the law. At any rate, personally I think that this procedure did not occasion any failure of justice. The fact remains that the learned Sub ordinate Judge on a consideration of the entire matter felt satisfied that a complaint should be lodged and in fact a complaint was lodged and taken cognizance, therefore, the position was that the complaint which could be legally made under the Code of Criminal Procedure had so been made and a case which could legally be taken cognizance of was so taken cognizance of by a competent Court. It is true however that under section 195 (1) (a), Criminal P. C., the learned Subordinate Judge will be acting in his adminis trative capacity rather than as a Court in his judicial function when he considers whether a complaint should be filed or not. In the present case he had exercised the discretion given to him under the law, after holding a judicial enquiry under section 476 of the Code. Strictly speaking something may be said against the procedure adopted by the learned Subordinate Judge in ordering the complaint to be filed.

10. I, therefore, agree with the order passed by my learned brother that the case should go back to the learned Subordinate Judge who should consider the matter in his administrative capacity and then decide on the desirability of lodging a complaint under section 195 (1) (a) of the Code of Criminal Procedure. S. B./K. B. A. Order accordingly.