P L D 1966 (W (PLP)

(b) That the accused Ramchand who commands great influence with the police and the local officials has helped number of persons by deceitful means to obtain Pakistan passports. He thus helped several persons to escape to India. (c) That accused Ramchand is living with his brother Gulab, Advocate at Hyderabad and is helping and abetting the members of the gang, the accused 2 to 9, in the matter of obtaining passports by improper means, transferring national assets of Pakistan in cash‑and sale‑proceeds of evacuee property to India. (d) That accused Ramchand helped the accused 2 to 9 to re‑occupy evacuee properties and sell them and transfer the sale proceeds to India. He got a big evacuee mansion at Shahdadpur from the Additional Settlement Commissioner's office at Hyderabad in the name of his wife Nirmala Devi, accused No. 6, that he helped Purshotamdas in selling the properties of evacuee Amul Bai and Hemal Bai of Shahdadpur; that he helped accused Purshotamdas in getting his Bharti nationality converted into Pakistani nationality and helped Hemandas and others to escape to India. (e) That the accused Ramchand is making false complaints and issuing baseless and misleading press statements to terrorise and implicate the social workers and to protect the members of the gang, accused 2 to 9, and many others who are busy in transferring huge national wealth of Pakistan to India.

4. The names of six witnesses were cited in the complaint but in the preliminary inquiry which was held by the S. D. M. on 1‑8‑64, four different persons were examined by the complainant. These are: (1) Ali Akbar, son of Mahboob Ali, (2) Abdul Hakim, son of Abdul Ali, (3) Nabiullah, son of Rahimullah and (4) Amir Muhammad, son of Salamat Khan. The statement of these witnesses is also of the same general nature as the allegations of the complaint and what has been stated by them is that these accused persons frequently meet at the house of Gulab, Advocate and they engineer the obtaining of false passports and certificates, get evacuee property sold and transfer moneys to India.

5. I have heard Mr. Hayat Junejo who appeared for the petitioner, Mr. Murtuza Husain and Qazi Abdul Rasool, Advocate for the State and the complainant himself at some length. The contention of Mr. Junejo in a nut‑shell was that the allegations in the complaint were too vague and multifarious to form the basis of an inquiry and trial in a criminal case. He urged that the allegations were of such a rowing character that the accused would never know as to what the charges are and against whom and what case, if any, they have to meet either severally or jointly. This, he urged, amounted to an abuse of the process of the Court. His second contention was that the offences alleged in the complaint are such which cannot be inquired into without the previous sanction of the authorities concerned or upon their complaint and that bar could not be circumvented by adding a charge of conspiracy or cheating. In this stand Mr. Junejo was supported by Qazi Abdul Rasool, the learned Advocate appearing for the State. The complainant argued his case himself and urged that he would give definite instances of specific offences at the trial‑and that in the complaint as well as in his statement he had merely made a general statement to show the nature of the evidence that he was going to lead. It was further stated by him that the reference to offences such as contravention of the Foreign Exchange Regulation, in respect of evacuee properties and those under the Passport Offences Act was made by him in the complaint to show the activities of the gang and that the main case which he would press at the hearing would be of cheating for which process was issued by the S. D. M. He asserted that by deceitful means entries in the Revenue record have been manipulated and an inquiry into this offence does not require the previous sanction of any authority.

6. In examining the contentions raised before me I have to keep in view the limited scope of the jurisdiction which vests into this Court under section 561‑A, Cr. P. C. and which jurisdiction was the subject‑matter of a recent judgment of the Supreme Court in the case of Muhammad Samiullah Khan v. State (P L D 1963 S C 237). At the same time it must be recognised that this Court has, within the limits of its extraordinary jurisdiction under section 561‑A, never hesitated to interfere in order to prevent the abuse of the process of the Court. After very careful consideration of the arguments which were advanced by both the parties before me, the order that I propose to pass is to quash the order of the learned S. D. M. dated 1‑8‑64 whereby process was issued to the accused and leave it open to him either to hold a fresh preliminary inquiry himself or send the case for such inquiry by the police concerned. In that view of the matter I shall try to say as little as possible and only that much which is necessary for supporting the order which I propose to make in this case.

7. I shall first deal with the question of the bar of prosecution except with the sanction or upon the complaint of the authority concerned under a particular statute which question has a bearing in this case in view of the nature of the allegations made in the complaint and also in the oral statement of the complainant and the four witnesses examined during the preliminary inquiry.

8. With regard to the allegation relating to the transfer of money to India by improper and clandestine methods and which fall within the ambit of the Foreign Exchange Regulation Act, 1947 the relevant provision to note is subsection (3) of section 23 of that Act which reads as follows:-- "23 (3). A Tribunal shall not take cognizance of any offence punishable under this section and not declared by the Central Government under the preceding subsection to be cognizable for the time being, or of an offence punishable under section 54 of the Income‑tax Act, 1922 as applied by section 19, except upon complaint in writing made by a person authorised by the Central Government or the State Bank in this behalf." It is clear from the provision that in the absence of the complaint such as is mentioned in it, any inquiry by the Magistrate in respect of those allegation which would constitute an offence under section 23 of the said Act would be without jurisdiction.

9. Then there are number of allegations in the complaint which clearly fall within the scope of section 3 of the Passport (Offences) Act of 1952. This section is very exhaustive and its clauses (a) to (g) cover almost every act or device which may be resorted to in the matter of improperly obtaining or retaining a passport and have made punishable with imprisonment which may extend to two years or with fine or both under that section. However, in this case again the cognizance of any offence under this section is barred by subsection (2) of section 3 except upon previous sanction in writing of the Central Government or the Government of the Province within which the offence is committed.

10. We then come to the allegations relating to or connected with evacuee property Chapter 6 of the Pakistan (Administration of Evacuee Property) Act, 1957 deals with the offences and penalties. Sections 31 to 35 of this chapter describe the various offences and their punishment which arise from dealing improperly with evacuee property. Section .36 is a general section which provides for the punishment of any contravention of any provisions of this Act or rule or order made thereunder or obstruct the lawful exercise of any power conferred thereby. This is in addition to the specific offences which fall under sections 31 to

35. Then comes the bar of cognizance which is provided by section

39. It lays down that 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 with the previous sanction of the prescribed Custodian.

11. There are also the allegation in the complaint with regard to proceedings before the Settlement authorities. The law governing these proceedings is contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Chapter VIII of that Act provides for penalties and cognizance of offences, Section 27 lays down that any person who in any proceeding under the Act furnishes or abets the furnishing of any information which he knows to be false or fraudulently conceals or misrepresents facts, or abets such concealment or misrepresentation, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. However, the cognizance of any offence punishable under this act is barred by section 28 except upon a com plaint in writing made by an officer appointed under this Act.

12. No sanction as required by some of the provisions referred to above has been obtained and no complaint as required by the other provisions mentioned above has been made. It must, therefore, follow that any inquiry with regard to the offences falling under any one of the statutes named above by the Magistrate in this case would be without jurisdiction.

13. The next question is whether this is a case of evasion on the part of the complainant of the provisions which constitute a bar against the cognizance of offences as enumerated above. An effective answer to that question cannot be given unless all the facts have come before the Court. I would, however, like to make a few general observations for the guidance of the trying Magistrate. The purpose of such provisions which bar the cognizance of an offence falling under a particular statute without the previous sanction of the authority named therein or without a complaint by such authority, as the case may be, is to keep such proceedings within the control of public authorities in the public interest. The purpose cannot be allowed to be defeated by resorting to device and comouflage. It is true that there may be a case where a distinct offence is disclosed falling under the Penal Code by the same facts and which could in a proper case b be inquired into upon a private complaint because the bar of the special statute would not apply to it but in all such cases care must be taken to see whether the facts disclose primarily and essentially an offence for which a complaint of the officer concerned has been made a condition precedent before cognizance of it is taken. If such be the case then prosecution upon subsidiary facts falling under another provision of law would not be permitted. The law in this respect was, if I may say so with respect, correctly laid down by a judgment of the Indian jurisdiction in the case of Bashirul Haq and others v. The State of West Bengal (AIR 1953 S C 293). In that case, a private complaint was filed upon the allegation that the accused had given false information to the police and had made imputation mala fide out of the enmity against the complainant with the intention of harming his reputation and that to wound his religious feeling they had trespassed on the cremation ground and caused the dead body to be taken out by making false imputations. The accused were tried by the Magistrate on charges under sections 297 and 500 of the Penal Code and convicted accordingly. In appeal to the Sessions Judge from the conviction recorded by the Magistrate the accused were acquitted. The view taken by the Sessions Judge was that upon the complaint the only offence that could be said to have been committed fell under section 182 or section 211 of the Penal Code and that a Court was not competent to take cognizance of those offences except on a complaint by a proper authority under section 195, Criminal Procedure Code. Again this acquittal a revision was preferred by the complainant to the High Court and a Division Bench reached the conclusion that on the facts alleged in the petition of complaint distinct offences under sections 182, 297 and 500, I. P. C. had been disclosed. They, however, referred the following question for the decision of a Full Bench. "If the facts alleged in a petition of complaint, or in an information received by the Magistrate, on which a Magistrate, can ordinarily take cognizance of an offence under section 190, Cr. P. C., disclose an offence of which cognizance cannot be taken by the Magistrate because of the special provisions of section 195 or 196, or 196‑A or 197, or 199, Cr. P. C. is the Magistrate also debarred because of this from taking cognizance of other offences disclosed by the facts alleged, which are not in any way affected by the provisions of section 195, or 196 or 196‑A or 197 or 199, Cr. P. C." The Full Bench answered the question referred to it in the negative. The case having gone back to the Division Bench the application in revision was allowed and the order of acquittal was set aside and the Sessions Judge Was directed to rehear the appeal on merits. After the remand the appeal was heard on merits and was dismissed. The matter was then taken by the accused in revision to the High Court which was summarily dismissed and the matter was then brought up to the Supreme Court. Their Lordships of the Supreme Court agreed with the view taken by the High Court and in dismissing the appeal observed that the charge for the offence under section 297 of the Penal Code could in no circumstance be described as falling within the purview of section 195, Cr. P. C. As regard the charge under section 500, Penal Code, it was clear both on principle and authority that where the allegation made in a false report disclosed two distinct offences one against the public servant and the other against a private individual that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him. They then went on to add the following passage by way of caution:‑- "Though in our judgment, section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit .of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Cr. P. C. Merely by changing the garb or label of an offence, which is essentially an offence covered by the provisions of section 195, prosecution for such an offence cannot be taken cognizance of by mis des cribing it or by putting a wrong label on it." With these observations I am in respectful agreement.

14. In the present case, as I have already indicated above, the allegations in the complaint are multifarious and of a sweeping character. Though it is true that no question of misjoinder of offences or of accused persons, could properly arise at the stage when the process was issued because that question could rest until the question for the framing of the charge arose yet it must be noted that upon such a complaint the Magistrate could easily be set upon a rowing inquiry and the accused would not‑clearly know as to what particular offence was being inquired into against them individually or jointly. The complainant strenuously urged before me that he would be in a position to lay specific charges in respect of distinct offences, the trial of which do not require any sanction or a complaint by a public officer. If that is so he must be called upon to do it before he demands the issue of process. I may mention here that the learned Magistrate did not consider issue of process for an offence under section 120‑B, P. P. C. and rightly so, because if the over tacts themselves were the subject‑matter of inquiry there was no .question of the charge of conspiracy, I would however, like to observe that there was no occasion for the application of section 34, P. P. C. which was added to section 420.

15. In the result I quash the order dated 3‑8‑64 by which the learned Magistrate issued process to the accused. It would be open to him either to send this complaint to the concerned department of the police for an inquiry and report, or to proceed with the preliminary inquiry himself. If he decides to adopt the later course he should closely examine the complainant so as to bring out specific allegations of facts and then in the light of the observations, which I have made earlier in this judgment, decide whether to issue process or not, and if so against which of the accused. K.B.A. Petition allowed.