2009 PLP 1002 (MLD)

S. ALI HASSAN RIZVI, J.

This writ petition filed by Muhammad Ashraf petitioner seeks quashment of proceedings presently pending before the learned Judicial Magistrate, T.T. Singh (respondent No.1) by way of Kalandra under section 182, P.P.C. prepared and submitted by S.H.O. Police Station Sadar, T.T. Singh (respondent No.3) on 30-8-2007.

2. It was contended that the relevant applications having been moved on 11-4-2007, 13-4-2007 and 16-4-2007 before the Chief Minister, Punjab, the Governor of Punjab, Inspector-General of Police, Punjab, the DIG Police, Faisalabad and the District Police Officer, T.T. Singh, the S.H.O. (respondent No.3) had no authority to prepare and submit Kalandra under section 182, P.P.C. According to learned counsel, the expression "public servant concerned" as appearing in section 195, Cr.P.C., would mean the servant to whom the relevant applications were first moved. The raison d'etre of his submission was that only the aforementioned officers/authorities who had received the applications in the first instance, could prepare or submit the Kalandra under section 182, P.P.C. and not the S.H.O. (respondent No.3 herein). Reliance was placed on Mst. Razia Bibi v. The State (1990 PCr.LJ 284) and Maulana Muhammad Ilyas Qadri v. Superintendent of Police, Haripur District and 3 others (2005 PCr.LJ 623). It was further contended that he had already filed a complaint under sections 427/440/506/579/148/149, P.P.C. in the Court of learned Ilaqa Magistrate and that there was no justification for continuance of the proceedings under section 182, P.P.C.

3. I have hesitation to go by the above submissions made on behalf of the petitioner. In the present case, the applications were moved to the Chief Minister, Punjab, the Governor Punjab, Inspector-General of Police, Punjab, the DIG Police, Faisalabad and the District Police Officer, T.T. Singh. It is repellent to common sense that the Chief Executive of the Province or the Inspector-General of Police or DIG or the District Police Officer would prepare and submit a Kalandra under section 182, P.P.C. The reason is that provisions of section 182 P.P.C. would be invoked where a person gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause such public servant. (a) to do or omit any thing which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use lawful power of such public servant to the injury or annoyance of any person. The Chief Minister Punjab or the Governor of the Punjab are not public servants. The Inspector-General of Police, Punjab or the DIG concerned or the District Police Officer have no direct role to conduct investigation although they have supervisory powers under section 551, Cr.P.C. It is axiomatic that falsity or truthfulness of the allegations could only be examined if the information given to a public servant is investigated and inquired into. Obviously, the inquiry or investigation would be done by the public servant who is authorized by law and who actually does so in a particular case. After the promulgation of the Police Order (No.22), 2002, different parameters were set up in the context of investigation. As per section 18(3) Proviso, the investigation wing was to be located within the Police Station and it "shall be responsible to its own hierarchy in the District under the general control of Officer-in-charge of the Police Station." Under Article 18(4) of the said Order, all registered cases "shall be investigated by the investigation staff in the District under the supervision of the head of investigation". The provisions of sections 156/157/173, Cr.P.C. are still intact and operative to all intents and purposes as stated therein. Section 173(1)(b), authorizes the S.H.O. to communicate through the public prosecutor, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. The petitioner could move the senior police officers against the action taken by S.H.O. whereby he had prepared the Kalandra under section 182, P.P.C. and submitted the same to the learned Ilaqa Magistrate. It was never done by the petitioner. He had also a remedy under section 18(6) of the Police Order, 2002 to get the investigation transferred but it was also not done. If the S.H.O., as was contended on behalf of the petitioner, had not recorded the statement of the complainant or had not inquired into the allegations contained in the applications moved by him, the remedy lay under sections 156(3) of the Cr.P.C. as also under Article 18(6) of the Police Order, 2002.

4. Last but not the least is the fact that the petitioner can raise all the grounds as contended before this Court, before the learned Magistrate under section 249-A, Cr.P.C., but he has not done so. It is an adequate and alternative remedy, which could not ordinarily be by-passed before coming to this Court in its extra-ordinary writ jurisdiction. It may be noted that under section 249-A, Cr.P.C., a Magistrate can be moved seeking acquittal of an accused at any stage of the case, if he could show that the charge was groundless or that there was no probability of his being convicted of any offence. I would eschew from making any observation if in the circumstances of the present case, S.H.O. Police Station Sadar T.T. Singh was the "public servant concerned" in terms of section 195, Cr.P.C. or not, lest the case of the petitioner might be prejudiced. I leave the petitioner with a clean slate to avail himself of the aforementioned remedies including the one under section 249-A, Cr.P.C. In case of failure before the learned Magistrate, he would also have a remedy of revision before the Court of Sessions under section 439-A, Cr.P.C. The rulings relied upon by learned counsel for the petitioner being not apt similes are of no help to him at this stage.

5. Mere filing of the complaint by the petitioner before the learned Ilaqa Magistrate would not justify quashment of the Kalandra under section 182, P.P.C. The reason is that it would be for the learned Judicial Magistrate seized of the complaint case to see if it was filed to create a defence to the proceedings under section 182, P.P.C. or that the same was filed bona fide on facts. It was not shown as to what is the stage of this complaint case. Anyway, it will be open to the learned Magistrate seized of the proceedings under section 182, P.P.C. to decide its fate in accordance with law if and when any application is moved under sections 249-A, Cr.P.C.

6. For the foregoing reasons, this writ petition cannot be entertained. It is accordingly dismissed in limine.

7. Copy of this order shall be sent to the learned Ilaqa Magistrate, for information. H.B.T./M-231/L Petition dismissed.