1990 P Cr (PLP)

The question calling for determination in this quashment petition under section 561-A, Cr.P.C. is whether the comphiint filed by the 5.11.0. Police Station Hasilpur under section 182, P.P.C. against Ghulam Oadir in compliance with the orders of the Deputy Commissioner, Bahawalpur is illegal and without lawful authority and whether the subsequent proceedings pending before the EA.C./Magistrate 1st Class Hasilpur under the same complaint are sheer abuse of authority.

2. The uncontested features of the petition are that on 22-6-1989, the Police Station Hasilpur lodged a Kalandara (complaint) under section) 182, P.P.C. in the Court of EA.C./Magistrate 1st Class, Hasilpur in compliance with the order of the Deputy Commissioner, Bahawalpur who directed the S.H.O. to file the complaint for making a false allegation before him in his Khuli Kachehri. The petitioner accordingly was arrested. The complaint has been submitted before the Magistrate 1st Class who had taken the cognizance of the case and the petitioner is facing the proceedings before the trial Court. Hence this petition.

3. Learned counsel for the petitioner contended that the filing of the complaint as well as the subsequent proceedings pending in the trial Court are violative of mandatory provision of section 195, Cr.P.C. which provides that no Court can take cognizance of a complaint under section 182 unless and until it is filed by a written complaint by public servant concerned or some other public servant to whom he is subordinate. It was argued that neither the S.H.O. was the public official concerned before whom a false allegation was levelled nor the Deputy Commissioner was subordinate to him on the basis of rule laid down in Ali Ahmad v. The State 1984 P Cr. L J 772, Dr. Abdul Aziz v. Anwar Khan and 2 others 1984 P. Cr. L J 1340, Muhammad Waryam and 3 others v. The State 1988 P Cr. L J 1223 and M.JA. Gazdar v. The State 1989 P Cr. L J 832.

4. It was pressed that the proceedings commencing from filing of the complaint, taking of the cognizance and to the pending proceedings were totally illegal and without any lawful authority.

5. Learned counsel for the State opposed the petition.

6. The arguments were heard at length and the record was critically examined. As already stated, there is no dispute over the facts. I am only concerned to examine the effect of section 195, Cr.P.C. in this quashment petition. Section 195(1) is as follows:- 195(1) No Court shall take cognizance: (a) of any offence punishable under sections 172 to 180 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Clause (a) of section ,195(1),.Cr.P.C. came into consideration before the superior Courts in a number of cases. In Barhamdeo Singh v. Emperor A I R 1928 Pat. 102 Division Bench of the Patna High Court held that the Magistrate who took the cognizance of the case on the complaint of Sub-Inspector of Barh had no power to do so under section 195(1)(a), Cr.P.C. within the framework of section

195. The same principle was highlighted in Mahadeo v. Emperor A I R 1935 Nagpur

241. In this case it was held that:- ...but the terms of S. 195 are clear and these are that the Court has no jurisdiction unless a complaint is filed by the public servant to whom he is subordinate, i.e. under whose orders he is. It is not every officer of a superior rank who is entitled to give orders to him, and I can find nothing in the Police Manual that suggests that a Prosecuting Inspector is entitled to give orders to a Sub-Inspector except in relation to a case that is being tried. I, therefore, hold that no complaint was filed in compliance with S. 195, and that, therefore, the Court had no jurisdiction to try the complaint. The same principle was reaffirmed in Muhammad Waryam and 3 others v. The State 1988 P Cr. L J 1223 and Ali Ahmad v. The State 1984 P. Cr. L J

772. After the perusal of section 195, Cr.P.C. and the case-law cited above, I have no doubt in my mind that the Court had no jurisdiction to entertain the complaint under section 182, P.P.C. unless and until a written complaint is filed by that public officer concerned or by an officer to whom such a public servant is subordinate. In the instant case, neither the complaint was filed by the Deputy Commissioner nor it was filed by the officer to whom he was subordinate. By no stretch of imagination it can be examined that the S.H.O. was superior to the Deputy Commissioner and gave order to him for compliance. For what has been stated above I am, therefore, quite clear in my mind that the proceedings commencing from the filing of complaint, Kalandra, before the Court of E.A.C. to the steps of taking cognizance and summoning the f petitioner to face the proceedings were without lawful authority. The proceedings are, therefore, coram non judice and mere abuse of process. I accept this duashment petition, quash the proceedings pending in the Court of E.A.C., Magistrate 1st Class Hasilpur. N.H.Q./G-324/L Proceedings guashed.