P L D 1975 Lahore 1440 (PLP)

3. It is contended by the learned counsel for the petitioner that the proceeding are not competent as the learned Magistrate is precluded from taking cognizance of the offence in question as the report was not made by a `public servant' as defined in section 21 of the Pakistan Penal Code. For ,this contention he relied on section 10 of the above‑mentioned Act. This section may be reproduced here for facility of reference:‑ "S. 10.‑No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Pakistan Penal Code, 1860."

4. The learned counsel for the Food Department and the State submitted that the intention of the Legislature appears to be that although the contraven tion of Food laws by depot‑holders. and other persons dealing with foodstuffs, should be controlled but some restrictions should be placed on the right to move the Court in such cases the reason being that depot‑holders and other persons dealing in foodstuffs have to deal with a vast number of persons and since they cannot meet with the demands of every one, they are likely, in the ,course of their business, to give offence to some of them and thus incur their wrath. Such . offended persons are likely to lay false information against them in order to wreak vengeance. The Legislature has, therefore, provided that only persons who carry some status, namely, those who are `public servants' as defined in section 21 of the Pakistan Penal Code, should be permitted to move a Court.

5. I have considered the above‑noted contentions of the learned counsel. Section 190 of the Criminal Procedure Code lays down as to when a Magis trate can take cognizance of a case. It provides that a D. M. or S. D. M. or any other Magistrate, specially empowered in this behalf, may take cogni zance of any offence‑ (a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge, or suspicion that such offence has been committed. Sections 195, 196, 196‑A, 197, 198 and 199, Cr. P. C. enumerate the exceptions or provisos to section 190, Cr. P. C., and provide that no Court shall take cognizance of offences mentioned in those sections except on a complaint by the concerned Court, public servant, authority or person, as the case may be. On going through the afore‑mentioned sections the policy underlying these provisions becomes evident. The Legislature, obviously, intended that all and sundry should not be allowed to move the Court in those cases and only the concerned Court, authority or public servant or person can launch prosecution for the offences mentioned in those sections. Section 10 of the West Pakistan Foodstuffs (Control) Act, 1958, also places a similar restriction on the Court's power to take cognizance of an offence punishable under the said Act. It provides that every one should not be permitted to move the Court and it is only on the report of the `public servant' as defined in section 21, P. P. C. that the Court can take cognizance) of such cases.

6. Ass a result I am inclined to agree with the view expressed by the learned counsel for the State and the Food Department, because there can be no other plausible explanation for the fact that ordinary mode of moving a Court, as provided by clauses (a), (b) and (c) of section 190, Cr. P. C., has been modified by providing that the Court shall take cognizance of an offence under this Act only when a `public servant' makes a report to it about the commission of such an offence.

7. The learned counsel for the Food Department submitted further that in the present case although the F.

1. R. was lodged by a private person but the challan (i.e. the report under section 173, Cr. P. C.) was submitted in the Court by the Investigating Officer who being a member of the police force is a `public servant'. According to the learned counsel for the State and the Food Department, the Magistrate is, therefore, empowered, in the present case, to take cognizance of the case.

8. I am afraid the learned counsel for the State and the Food Depart ment have contradicted themselves by putting forward this argument, because if the intention of the Legislature was to prevent the harassment of persons dealing with the foodstuffs and for this purpose it has specially provided in section 10 of the West Pakistan Foodstuffs (Control) Act, 1958 that no one except a `public servant' can move the Court in connection with an offence under the said Act committed by them, then to say that even a private person could bring the machinery of the Court into motion by lodging an F. I. R. would amount to circumventing the provisions of section 10 of the said Act. If this contention of the learned counsel for the State and the Food Department is accepted as correct then there would be no difference between offences under the West Pakistan Foodstuffs (Control) Act, 1958 and other) offence envisaged by clause (b) of section 190, Cr. P. C.

9. I, therefore, hold that since the report in this case was made by one Islam‑ud‑Din, who was not a `public servant' within tile definition of sec tion 21, P. P. C., the learned Magistrate was not empowered to take cogni zance of the case. The proceedings in the case mentioned above are, there fore, not maintainable and are consequently quashed. S. A. H. Petition accepted.