1999 P Cr (PLP)

(4) Special Judicial Magistrate. (ii) Executive Magistrates:-- (1) District Magistrates. (2) Additional District Magistrates (3) Sub-Divisional Magistrates. (4) Special Executive Magistrates. (5) Magistrates of the First Class. (6) Magistrates of the Second Class. (7) Magistrates of the Third Class. It shows that the Judicial Magistrates are of four classes. (1) Magistrate of First Class (2) Magistrate of Second Class. (3) Magistrate of Third Class and (4) Special Judicial Magistrate. Section 12 reads as under:-- "

12. Subordinate Magistrates.

(1) The Provincial Government may appoint as many persons as it thinks fit to be Magistrates of the first, second or third class in any District and may from time to time define local areas within which such person may exercise all or any of the powers with which they may respectively be invested under this Code. (2) Local limits of their jurisdiction.

Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such District. Section 1-4 deals with Special Judicial and Executive Magistrates and reads as under:-- "

14. Special Judicial and Executive Magistrates.

(1) The Provincial Government may on the recommendation of the High Court, confer upon any person all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class or particular classes of cases, or in, regard to cases generally in any local area. (2) Such Magistrates shall be called Special Judicial Magistrates, and shall be appointed for such term as the Provincial Government may, in consultation with the High Court by general or special order, direct. (3) The Provincial Government may also appoint Executive Magistrate for particular areas or for performance of particular functions and confer upon them or any of the powers conferred or conferrable by or under this Code on an Executive Magistrate. (4) Such Magistrates shall be called Executive Magistrates, and shall be appointed for such term as the Provincial Government may, by general or special order, direct; Provided that no powers shall be conferred under this subsection on any Police Officer below the grade of Assistant Superintendent, and no powers shall be conferred on a Police Officer except so far as may be necessary for preserving the peace, preventing crime and detecting apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force. (5) The Provincial Government may delegate subject to such limitations as it thinks fit, to any officer under its control the powers conferred by subsection (3). Section 17 makes it clear that Judicial Magistrate and Benches shall he subordinate to the Sessions Judge. It reads as under:-- "

17. Subordinate of Judicial Magistrates and Benches to Sessions Judge.-- (1) All Judicial Magistrates appointed under sections 12 and 14 and all Benches constituted under section 15 shall be subordinate to the Sessions Judge, and he may from time to time, make rules or give special orders consistent with this Code and any rules framed by the Provincial Government under section 16, as to the distribution of business among such Magistrate and Benches. (2) Subordination of Executive Magistrate to District Magistrates.

All Executive Magistrates appointed under sections 12, 13 and 14 shall be subordinate to the District Magistrate and he may, from time to time, make rules or give special orders consistent with this Code and any rule framed by the Provincial Government under section 16, as to the distribution of business among such Magistrates. (2-A) Subordinate of Executive Magistrates to Sub-Divisional Magistrate-- Every Executive Magistrate (other than a Sub-Divisional Magistrate) in a Sub-Division shall also be subordinate to the Sub-Divisional Magistrate, subject, however, to the general control of the District Magistrate. (3) Subordination of Assistant Sessions Judges to 'Sessions Judge.

All Assistant Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and he may, from time to time, make rules consistent with his Code as to the distribution of business among such, Assistant Sessions Judges. (4) The Sessions Judge may also when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge and such Judge shall have jurisdiction to deal with any such application."

8. The above survey of the relevant sections makes it clear that the Judicial Magistrate being a Magistrate of the First Class was competent to record statements and confessions during the police investigation under section 164, Cr.P.C. and in the light of the judgment in Muhammad Sarfraz Khan's case (supra) a witness can also go to a Magistrate for getting his statement under section 164, Cr.P.C. in the course of an investigation and it is not necessary that the witness should have been produced by the police. A duty was cast upon the learned Magistrate to exercise the power honestly, fairly and justly. Not to touch the application of the petitioner was not proper on the part of the Magistrate. He should have entertained it and thereafter, if he was of the view that he has not to record the statement refusal must be made through a written order and that too with cogent reasons. The reason is that the law has not left the discretion without supervision. The learned Sessions Judge was also not justified in dismissing the application on the ground that the learned counsel has not been able to show him any provision of law under which the Ilaqa Magistrate or Judicial Magistrate, Karor might be directed to record the statement under section 164, Cr.P.C.

9. In the case of Nazir Ahmad v. King-Emperor AIR 1936 PC 253 it was observed by their Lordships:-- "It can hardly be doubted that a Magistrate would riot be obliged to record any confession made to him if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well-recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way and not at all. This doctrine has often been applied to Courts

1 Ch. D 426 (19) at p.431

and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164." Discretion is discerning between right and wrong, and therefore, whoever has power to act at discretion, is bound by the rule of reason and law and though there be a latitude of discretion given to one, yet he is circumscribed that what he does be necessary and convenient, without which no liberty can defend it. Discretion must be exercised honestly and in the spirit of the statute. It is not to be arbitrary, vague and fanciful but legal and regular, to be exercised not capriciously but on judicial grounds and for substantial reasons.

10. Part VII, Chapter XXXI of the Code of Criminal Procedure deals with appeals. Section 404 makes it clear that no appeal shall lie except as provided for by this Code or by any other law for the time being in force. There is no cavil with the proposition that section 164, Cr.P.C. relates to all affairs during the course of investigation and prior to the trial. It does not deal with an affair which is prior to the beginning of the investigation and after the end of the investigation. Chapter XXXII deals with Reference and Revision. Section 435 reads as under:-- "

435. Power to call for records of inferior Courts.

(1) The High Court or any Sessions Judge my call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the, correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. All Magistrates shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection. " Section 439-A, Cr.P.C. reads as under:-- "439-A. Sessions Judge's power of revision.

(1) In the case of any proceedings before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439. (2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge." Section 439, Cr.P.C. reads as under:

439. High Court's powers of revision.

(1) In the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence: (3) Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Magistrate of the First Class. (4) Nothing in this section shall be deemed to authorise a High Court:-- (a) to convert a finding of acquittal into one of conviction, or (b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439-A. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced shall, in showing cause,-be entitled also to show cause against his conviction." The revisional power is conferred to see the propriety, correctness and legality of every proceedings before a lower Court by a higher Court. A proceeding under section 164, Cr.P.C., .is, therefore, revisable and the learned Sessions Judge should have been aware of his own powers under the Code. His remarks while dismissing the application of the petitioner are, therefore, unwarranted and the impugned order of the learned Sessions Judge is, therefore, set aside and the conduct of the Magistrate is also not approved. He is directed to entertain the application of the petitioner and proceed strictly in accordance with law. The petitioner is directed to appear before the Magistrate on 20-10-1998. N.H.Q./A-42/L Petition accepted.