P L D 1971 Lahore 678 (PLP)

G. M. Mirza for Respondent No.

1. M. B. Zaman, A: G.: Amicus curiae for the State. Dates of hearing: 23rd December 1970; 13th, 14th, 21st and 26th January 1971. The dispute between the parties in this case arose out of an agreement in which the principal Messrs Noorani Pictures producers of film Maan Puttar appointed Aziz‑ul‑Hamid their agent for the exhibition, distribution and exploitation of the said film in the territories of Punjab and N.W. F. P. for a period of three years vide agreement dated 27th August 1969. The agent was entitled to a commission @ 10 per cent. The agent collected Rs. 4,66,512.80 out of which he accounted a sum of Rs. 3,47,011.12 to his principal. By going through the accounts it was found that after deducting the publicity expenses a sum of Rs. 47,849.95 was due to the principal from the agent which he was reluctant to pay.

2. A suit for rendition of accounts was filed by the pro ducers in which prayer for injunction was also made. The injunction was refused by the trial Judge on 16th July 1970. The Agency was cancelled by the principal on 24th July 1970, and a subsequent application for the grant of stay order was made which according to‑the parties is still pending and no deci sion has so far been made on it for the reason that an applica tion under section 29 of the Arbitration Act had been moved before the learned civil Judge.

3. Mr. Masood Qureshi Managing Partner of Messrs Noorani Pictures filed a complaint under section 406/409, P. P. C. on 24th August 1970. Mr. Akhtar Ali, M.

1. C., Lahore, took cognizance of the complaint on 26th August 1970, and fixed 28th August 1970, as the date for recording the complainant's statement. An application under section 94/96, Cr. P. C. was submitted on 25th August 1970, before the learned Magistrate praying for the issuance of search warrants to the S. H. O. Qilla Gujar Singh, Lahore, for the search and production of account books and prints of film `Maan Puttar' in possession of Mr. Aziz ul‑Hamid. The learned Magistrate on 31st August 1970, issued the search warrants addressed to the S. H. O., Qilla Gujar Singh for the production of account‑books and the prints. Muhammad Aslam A. S. 1. seized, inter alia, seven prints of film under memo. dated 1st September .1970. On 2nd September 1970 another application was made by Mr. Masood Qureshi praying for issuance of fresh search warrants for the recovery of account books and remaining five‑ prints. The learned Magistrate heard arguments and passed the following order on 4th September 1970 :‑ "The prints impounded so far should be entrusted to Shah Noor Studio for safe custody at the expense of the applicant Fresh search warrants be also issued for the recovery of the remaining prints. Police of the concerned police station to comply with the orders."

4. On 4th September 1970, Mr. Aziz‑ul‑Hamfd applied to the Magistrate for return of the seven prints of film `Mann Puttar' on sapurdari. The learned Magistrate sent for the report from the S. H. O., Qilla Gujar Singh on the same day. On 5th 'September 1970, Mr. Aziz‑ul‑Hamid presented an application before the Magistrate in which he submitted that he was a law abiding citizen and peace‑loving businessman; he would never hesitate in the production of articles ordered by the Court; in fact the dispute between the parties was of a civil nature regarding which a suit was pending in the Court of Ch. Muhammad Naseem, Civil Judge, Lahore for adjudication; and the complainant twisting the facts had tried to convert the civil dispute into that of criminal complaint. He, however, undertook to produce the documents and the prints of film `Maan Puttar' in his possession when and where required by the Court. He was also prepared to execute a bond to this effect to the satisfaction of the Court. He, therefore, prayed for the withdrawal of search warrants and requested the Court to hand over the five prints already taken from his custody on sapurdari to him. On the same day the learned Magistrate passed the following order. "Mr. Javid Malik Advocate present. Arguments heard. He and his clients undertake to produce the remaining five prints of film `Maan Puttar' on any date they are required to do so. All the search warrants already issued shall stand cancelled and withdrawn. Issue necessary orders to the police."

5. On 14th September 1970, another application was made by the complainant in which it was alleged that one of the prints of film `Maan Puttar' was exhibited on 9th and 10th September 1970, in Shalimar Cinema and thereby the other party has derived benefit to the tune of four to five thousand rupees. After hearing arguments of counsel for the parties the Magistrate passed the following order:

"In accordance with the undertaking given by the respon dent presented in this Court on 5‑9‑1970 the latter is required to produce the remaining three prints of film `Maan Puttar' in this Court on 16‑9‑1970, at 8 a.m." Aziz‑ul‑Hamid impugned this order by way of revision before the learned Additional Sessions Judge, Lahore, on 15th September 1970 who on the same day issued notice to the parties as well as notice to the State for 22nd September 1970 and suspended the operation of the order dated 14th September 1970. Further proceedings before the trial Court were also stayed till the next date subject to just objections.

6. On 17th September 1970, an application was moved by Khawaja Sultan Ahmad, Advocate for vacation of the order passed by the Additional Sessions Judge. He further requested that the order of suspension passed by him may be recalled or in the alternative Aziz‑ul‑Hamid be directed not to release any of the prints till his revision petition was finally disposed of. It was submitted in the application that the order of the Magis trate could not be suspended under section 435, Cr. P. C. The learned Additional Sessions Judge passed a detailed order on 18th September 1970 which concluded thus:

"I am not inclined to stop display of the film this evening, for which the petitioner might have made elaborate arrange ments. However, the situation between the parties is tense and the matter needs an early decision. It is Friday and 1‑15 p.m. now. It is not possible to go into this matter more thoroughly and deeply at this time. I shall, therefore, further consider this matter tomorrow." On 19th September 1970, the learned Additional Sessions Judge adjourned the case to 22nd September 1970, on account of the absence of Khawaja Sultan Ahmad. On 22nd September 1970 the parties were present, but the learned Additional Sessions Judge was on leave. The case was adjourned to 24th September 1970, on which date the case was again adjourned to 26th September 1970. On 26th September 1970, Mian Nisar Ahmad had gone to Sheikhupura. The case was adjourned to 28th September 1970, on which date it was again adjoured to the following day. Arguments were heard on 29th September 1970, and the judgment was reserved for announcement of order on 6th October 1970. Order was neither announced on 6th nor on 7th October 1970. On 8th October 1970, Masood Qureshi filed Criminal Miscellaneous No. 7134 of 1970, in this Court which was heard by my learned brother K. E. Chauhan, J., on 9th October 1970. A special messenger was sent and it was found that the Additional Sessions Judge bad not dictated the judgment till then. Statement of the special messenger was recorded and report was called for by this Court in which the learned Additional Sessions Judge admitted to have dictated his order dated 6th October 1970, on 9th October 1970. The record having come to this Court this application has thus become infructuous.

7. The learned Additional Sessions Judge has made a refer ence to this Court under section 438, Cr. P. C. for setting aside the order of the trial Magistrate dated 14th September 1970, and for quashing all orders passed by the Magistrate for recovery of the prints etc. and to order their restoration to the person from whom these were recovered. The following three important questions of law were raised :‑ (1) That the order dated 14th September 1970, was made by the Magistrate on the undertaking given by the petitioner and as such he could not take any exception to it ; (2) that the learned Additional Sessions Judge could not suspend the order in the exercise of jurisdiction under section 435, Cr. P. C. ; and (3) in any case there was no justification for the Additional Sessions Judge to have come to the conclusion that obviously the matter in dispute was purely of civil nature and by no stretch of imagination could be given a criminal complexion and for making recommendations for the quashment of the proceedings of search warrants lawfully issued by the Magistrate.

8. In my humble view the order of the learned Magistrate dated 14th September 1970, is not revisable for it was made on the undertaking given by the petitioner for the production of A prints and books etc. He cannot be allowed to approbate and reprobate. In Mst. Paphan v. Haji Muhammad etc. Criminal Appeal No. 86 of 1970 their Lordships of the Supreme Court while deciding the appeal against judgment of the High Court dismissing the application of the appellant under section 491, Cr. P. C. for recovery of her minor daughter Mst. Jindan held :‑ "It transpires that at one stage the appellant and the respon dent No. 1 had agreed before the learned Judge in the High Court That Mst. Jirdan be detained in Darul Aman till she attains the age of majority. If this circumstance was brought to our notice earlier, we would not have granted leave to appeal as the appellant cannot be allowed to approbate and reprobate in the course of same proceedings." No revision, therefore, is competent against the order of the Magistrate dated 14th September 1970.

9. Next comes the question whether the Additional Sessions Judge has power to suspend the order. Plain reading of section 435, Cr. P. C. clearly shows that the Additional Sessions Judge was only competent to examine the question of legality or propriety of any finding and sentence or order and in so doing he could direct the suspension of any sentence, but could not suspend any other order. This question has been examined in the following cases t The King v. Maung Po Thaing and others (A I R 1941 Rang. 114), Y. Shan mugan Chetty v. Pennappa Mudaly and others (1 L R 26 Mad. 137), Sheobux Ram v. Emperor (2 Cr. L J 534) and three more cases from Indian Jurisdiction reported as Mukutdhari Shao v. Ajodhya Shao (A I R 1949 Cal. 241), Bans and others v. Haji Singh and others (A I R 1956 All. 297) and Naresh Prasad Mittal v. Mahavir Singh (A I R 1960 All. 507). The unanimous view has been that both under section 435(1) or under section 438, Cr. P. C. Sessions Judge or a District Magistrate can only direct stay of execu tion of any sentence passed on an accused person by a subordinate Court, but they have no power to stay execution of any order. In India the law underwent a change in 1956, whereby the Indian Legislature has also introduced the word 'order' after the word 'sentence' in the section. In Naresh Prasad Mittal v. Mahavir Singh the learned Judge dealing with this section held' that in view of the amendment of section 435, Cr. P. C. orders now can also be suspended. Since no change has been introduced in this section by any competent Legislature in Pakistan the position remains the same. Only sentence could be suspended by the learned Additional Sessions Judge but not the order. Therefore, the action taken by the learned Judge was trot wholly illegal but manifestly unjust.

10. In his reference he has practically sealed the fate of the complaint by holding that the dispute between the parties is that of a civil nature. It was too early a stage to have come such a finding. I am afraid, I cannot agree: with the recommen dation made by the learned Additional Sessions Judge for surely a dispute between the principal and an agent could take the shape of‑crime, if misappropriation is alleged. This is not a case of two partners one asking accounts from another, where such a position can arise, though there is a chain of authorities against this view as well, for a partner can equally be guilty of misappropriation. The agency having been cancelled by the principal on allegation of misappropriation will give cause to the complainant to come to a criminal Court alleging misappropriation against his agent who refused to return his property and misappropriated the share of the income of the principal. The Magistrate can certainly take cognizance of such a complaint and examine such an allegation. It is for him to see whether on evidence produced before him he should summon the accused or dismiss the complaint. In this case even the preliminary evidence has not been recorded by the Magistrate, except the statement of the complainant who requested the trial Magistrate for issue of search warrants for production of account books and film prints which were needed for recording preliminary evidence. The Magistrate did not summon the accused. He only issued search warrants under section 96, Cr. P. C. on the application of the complainant for the production of account books and the prints of the film as it was alleged in the application of the complainant dated 25th August 1970, that these books and the prints were necessary for the enquiry. Serious allegation was made in the application that if search warrants were not issued the respondent was likely to destroy the account books and the prints. Again a request was made by the complainant, on 2nd September 1970, for recovery and production of account books and remaining prints. On 4th September 1970, the learned Magistrate issued fresh search warrants for that purpose. Application by the complainant for giving the prints on sapurdari to him was submitted before the Magistrate. So did the accused by filing an application on 4th September 1970, for the return of 7 prints on sapurdari. In his application dated 5th September 1970, Aziz‑ul‑Hamid requested for the withdrawal of search warrants on promise of the production of the books and the prints when and where he is called upon to produce the same and requested for return of 5 prints of film 'Maan Puttar' on sapurdari. The learned Additional Sessions Judge has come to the conclusion without there being any evidence in the case that obviously the matter in dispute was purely of a civil nature and by no stretch of imagination could be given a criminal complexion. He has, therefore, recommended for setting aside the order of the trial Magistrate dated 14th September 1970, and quashment of all the orders passed by the learned Magistrate for recovery of the prints with a recommendation for restoration of the prints to the person from whom these were recovered.

11. In the first place this conclusion of the learned Sessions Judge is not based on evidence as only the complainant was examined on 28th August 1970, and the other evidence has yet to be recorded. I have already dealt with the question of quashment of the order dated 14th September 1970. The question remains whether the search warrants issued by the Magistrate were lawfully issued and is there any occasion for quashment of these proceedings as recommended by the learned Additional Sessions Judge. Section 94, Cr. P. C. confers powers. on a Court for issuance of summons for the production of any document necessary or desirable for the purposes of any investigation, enquiry or trial while section 96 confers authority on the Court to issue search warrants where it has reason to believe that the persons to whom summons under section 94, Criminal Procedure Code has been or might be addressed will not produce the document or where it considers that the purpose of any enquiry or proceedings before it will be served by a general search or inspection it can issue search warrants and the person to whom such search warrants are directed may search in accordance there with the premises of the person in whose possession the documents are alleged to be. In a Full Bench decision of the Bombay Court in Hussenbhoy Abdoolabhoy Lalji and another v. Rashid B. Vershi (A I R 1941 Bom. 259), it was held as under :‑‑‑ "When an application is made to a Court or to a police officer in the mofussil, under section 94 for production of documents the Court is bound to consider whether there is a prima facie case for supposing that the documents are relevant. If he thinks they are, then he can order production; and of course, his decision may be influenced by a desire to prevent the books being taken away or tampered with." There is a chain of authorities dealing with the principle of exer cise of powers under sections 94 and 96, Cr. P. C. E. F. Graves v. Pitumal Houndamal (A I R 1943 Sind 51), and a case from Indian jurisdiction like Satya Kinkar Roy v. Naikhil Chandra jyotisho- padhaya (A I R 1951 Cal. 101) are referred. In the latter Full Bench judgment the question for consideration was as to whether order could be issued to accused persons or whether such an order conflicts with the fundamental right under Article 20(3) of the Indian Constitution. The opinion was that there was no infringement of any fundamental right and the orders could be issued to any person including the accused. In M. P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others (AIR 1954 S C 300), it was held that the issuance of search warrants under section 96, Cr. P. C. does not infringe Fundamental Right under Article 19(1) of the Indian Constitution. Even a person having lien on documents can be called upon to produce them in Court under section 94, Cr. P. C. Reference is made to Allan E. Ker v. Promotha Nath Sarkar (163 1 C 224).

12. Surely a Magistrate cannot issue search warrants under section 96, Cr. P. C. if the complainant has not been examined. This was so held In re: S. Sinagurunatha Pillay (11 Cr. L J 535). In the instant case the complainant has been examined. A Magistrate can certainly issue summons or search warrants, as the case may be, for the production of account books. This was so held in Hari Charan Gorai and others v. Srish Chandra Sadhukhan (11 Cr. L J 525.). There must be some material before the Magistraje before he issues search warrants. He must apply his mind before passing the order. Where he does not apply his mind such an order would certainly vitiate. The only grievance raised, however, is that he has not given any reason in his order. In a decision from the Indian jurisdiction reported as Manicklal Mondal and another v. The State (A I R 1953 Cal. 341), it was observed that the Magistrate is not bound to record his reasons in writing before he issues a search warrant. All that section requires is that the Magistrate must himself be satisfied that there is necessity for the search warrants to be issued because the thing would not be produced otherwise. In K. Hoshide and another v. Emperor (A I R 1940 Cal. 97), it was held that it is not necessary that there should be an inquiry, trial or other proceedings pending at the time the search warrant was issued. A Magistrate can use his powers under this clause in anticipation of such inquiry or trial. The cases were cited where the search warrants issued were held to be illegal and improper. In Piyare Lal v. Thakar Dat Sharma (321 C 652), a learned Judge of the former Punjab Chief Court held that the search warrants issued by the Magistrate without giving reasons would vitiate the proceedings under section 96, Cr. P. C. Where there was a dispute about hire‑purchase agreement in respect of a motor bus, the dispute being of a civil nature, the Magistrate has no jurisdiction to make an order directing the vendor to retain the bus. Reference is made to Hrishikesh Ghose v. R. P. Michael (A I R 1939 Cal. 45).

13. With utmost respect to the learned Single Judge of the former Punjab Chief Court, I am not in agreement with the view expressed by him. Absence of reasons to the order of the Magistrate to my mind does not vitiate the proceedings. All that the section requires is that the Magistrate should apply his own mind to the facts before him and for this view reference can be made to Manicklal Mondal and another v. The State and Hrishikesh Ghose v. R. P. Michael is obviously distin guishable, from the facts of the instant case. That was a hire purchase agreement of a bus. In the instant case account books and prints of the film were the subject‑matter of the order passed by the Magistrate. The case of the principal and an agent is entirely on different footing especially when misappropria tion is alleged in the complaint.

14. In the light of the above discussion I am of the view that the Magistrate was perfectly justified in issuing the search warrants and the learned Additional Sessions Judge has fallen into an error in recommending the quashment of these proceed ings. It seems that he has not applied his mind at all. The recommendation of the Additional Sessions Judge for quashment, therefore, is based on infirm grounds. The learned Advocate General who has given much assistance in digging out the law is also of the view that this reference should be rejected. The approach of the learned Additional Sessions Judge is not mere ignorance of law, but I am afraid I cannot hesitate in making observation that such like decisions raise strong suspicion in the mind of litigant public about the integrity, independence and impartiality of the judiciary. The conduct of the learned Judge is not before me and I cannot observe as to what consideration weighed with him to come to the conclu sion which he did in passing the various orders and making the recommendation. In any case the decision of the learned Additional Sessions Judge is not the correct appreciation of the law.

15. For the foregoing reasons this reference is rejected. The learned trial Magistrate will expeditiously dispose of the application of sapurdari made by the parties so that no party should take advantage of the other having control over the prints and the account books. I am sure if the learned Addi tional Sessions Judge has not stayed the proceedings, the Magistrate would have certainly passed such an order on 16th September 1970, on the application of sapurdari when the prints and the books had been produced before the Court. The production of account books will also determine the fate of the complaint for it is only after looking into the accounts that the Magistrate can apply his mind to the allegation of misappropriation made in the complaint. Order accordingly. Reference rejected.