1977 P Cr (PLP)

The petitioner is a complainant in a case registered under sections 302/ 307/ 148/149, P. P. C. at Police Station Manawan, Lahore, for the murder of one Muhammad Sadiq, an employee of Bata Shoe Company. He has submitted the present petition for quashing the Magisterial inquiry being conducted by Mr. Qaiser Amin-ud-Din, Magistrate 1st Class, Lahore, under the directions of the District Magistrate.

2. Briefly, the facts are that on 13th June 1975, Muhammad Sadiq lodged a complaint with the police station Manawan that one Muhammad Sadiq had been murdered by Malik Muhammad Tufail and others as mentioned in the F. I. R. The accused were arrested and after the investigation, are stated to have been sent to the judicial lock-up. The local police is also said to have completed investigation of the case and submitted challans on 21st July, 1975.

3. The District Magistrate, Lahore, on 23rd June, 1975, ordered a Magisterial inquiry into the matter. It was entrusted to Mr. Qaiser Amin-ud -Din, M. I. C. He examined some persons as witnesses and also summoned some police officials of Police Station Manawan for evidence. Apparently, this was not to the liking of the petitioner who requested the learned Magistrate through an application to stop or cancel the inquiry but in vain. He has, therefore, made the present application.

4. It is contended by the learned counsel that the inquiry proceedings being conducted by the learned Magistrate are without jurisdiction and thus unlawful. Section 159, Cr. P. C. which confers a power of inquiry on the Magistrates lays down:- "

159. Such Magistrate, on receiving such report, may direct an investi gation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of the case in manner provided in this Code." The argument being advanced is that the following pre-requisites must be there before a Magistrate can order a magisterial inquiry: (a) The officer-in-charge of a police station must suspect commission of a cognizable offence, which he is empowered to investigate under section 156, Cr. P. C. (b) The police officer must send a report of the same to a Magistrate empowered to take cognizance of such an offence under a police report. (c) Only that Magistrate who had received the report can depute any Magistrate subordinate to him to hold a preliminary inquiry.

5. It is contended that as it is the Ilaqa Magistrate who receives the report the District Magistrate cannot order an inquiry. It is further submitted that even this has to be done immediately after receipt of the report and not when investigation has already been held by the police Reliance was placed on Shar v. State (1972 P Cr. L J 626). In this case, the District Magistrate had ordered a magisterial inquiry into the cause of death of a person at a time when the investigation was almost over. The learned Magistrate in his inquiry found the complainant guilty of the offence in addition to his finding out the cause of death. The complainant challenged the inquiry as without jurisdiction. The plea taken was that under section 176, Cr. P. C. there could be a finding about cause of death but not as to who caused it. It was further submitted that the inquiry could not be ordered when the police investigation was already under way. Petitioner in this case relied on P L D 1949 Lah. 562 and P L D 1971 S C 677 in support of his argument. The learned Judge followed the views expressed in the above-noted cases and not in P L D 1956 Lah.

448. The view taken in the above first case is that a Magistrate can order investigation, if one has been already started. In the other case a High Court under its Letters Patent could initiate preliminary investigation if one is not there already. It was, however, held to have no jurisdiction to transfer investigation from one officer to another. The point involved in the present case on the other hand never came up directly for consideration as such in those two cases. It is not denied that the Magistrate can command the police under section 159, Cr. P. C. to investigate or direct magisterial inquiry, He, therefore, could do either of the two. Admittedly, he did neither stop police investigation nor did he resort to the alternative at the same time, while ordering inquiry. The case of Khuda Bux (P L D 1956 Lah. 448) however, is to the point raised in this case. I, therefore, respectfully follow the same. There could, therefore, be no objection to his exercise of jurisdiction.

6. Sections 10(1) and 12, Cr. P. C. which are relevant to the territorial jurisdiction of the District Magistrate and the other Magistrates read as under:-

10. District Magistrate.-(1) In every District, the Provincial Government shall appoint a Magistrate of the first class who shall be called the District Magistrate. (2) ..

12. The Provincial Government many 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 persons may exercise all or any of the powers with which they may respectively be invested under this Code. (2) Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district."

7. So according to section 10, Cr. P. C. the District Magistrate is a First Class Magistrate for the whole district. The jurisdiction of other First Class Magistrates appointed in a district under section 12 also extends to the entire district unless it is specifically confined to a defined local area. It will be noted that while the jurisdiction of other first class Magistrates can be curtailed or confined this cannot be done in the case of District Magistrate. According to Punjab Gazette, 1883, page 52 all First Class Magistrates are empowered to take cognizance under section 190, Cr. P. C. They are subordinate to the District Magistrate and it is left to the District Magistrate under section 17, Cr. P. C. to distribute business among them. This is usually done either on territorial basis such as police stations or on class or nature of cases. Further change over from one type of allocation to another is also permissible and the District Magistrate may resort to it as and when he considers it necessary. The above provisions thus leave no manner of doubt that the District Magistrate and all other Magistrates have jurisdiction with regard to the entire district unless it is specifically curtailed and confined to a defined area under section 12, as for example, the Manager of Lahore Airport is the Magistrate for the Airport only and the Registrar, Lahore High Court only for the High Court precincts. Thus every 1st Class Magistrate is empowered to take cognizance of any case in the entire district irrespective of the allocation of work under section 17 unless his jurisdiction is curtailed or confined to a defined area kinder section

12. The view that I have taken is supported by the decision in the case of Sarat Chandar Ray (29 Cal. 389), Emperor v. Syed Sajjad Hussain (P Cr. L J 140). Another learned Judge of the same Court in Dhanwantri Durga Das against Emperor (A I R 1933 Lah. 852) expressed the same views. It was held in Bateram v. Dawalat Singh (A I R 1.945 Nag. 56) that unless it is shown that the jurisdiction of a Magistrate has been curtailed, the presumption is that it extends to the whole district. Similar views were expressed by Bombay High Court in Gulab Roa etc. v. Emperor (A I R 1935 Born. 409). Reference may also be made to Lakshmichand v. Emperor (24 P R 1901) and Mst. Choti v. Khechra (42 All. 649) as well as 34 A. 203.

8. The District Magistrate admittedly is a First Class Magistrate for the entire district. Consequently he has concurrent jurisdiction with the Ilaqa Magistrate. In Bashir Ahmad v. The Chief Commissioner, Karachi (P L D 1962 Kar. 249) it was held as follows: "Mr. Nasiruddin, the learned Advocate for the petitioner did not contend and rightly too, that the Magistrate had no jurisdiction within the local area where the offence in question was committed. Under section 12 of the Criminal Procedure Code, the District Magistrate can define the local areas, within which the Magistrates would exercise their jurisdiction, but subject to such definition the jurisdiction and powers of Magistrates extend throughout the district in which they may have been appointed. . The decision in the case of Dhanwantri Durga Das v. Emperor (A I R 1933 Lah. 852) already referred to above is also to the same effect i. e. to say that Courts of con current jurisdiction can proceed to try the same offence and simply because one Court is seized of the case, the jurisdiction of the other is not ousted. According to a judgment of Patna High Court in the case of Ramashwar Pathak and another v. Baijnath (A I R 1935 Pat. 436) a Magistrate-in-charge of a particular sub division was held to have jurisdiction over the area outside his jurisdiction in the district also.

9. According to section 157, the officer-in-charge of the police station is required to send report about the commission of a cognizable offence to a Magistrate empowered to take cognizance of such offences. In the light of above discussion, it means that every first class Magistrate being empowered to take cognizance of every offence is empowered to receive a police; report. The procedure for despatch of reports under section 157, Cr. P. C. is contained in section 158, Cr. P. C. Under this section every report, if it is so directed by the Provincial Government, is to be sent to the Magistrate through such superior officer of the police as the Provincial Government may direct. The police officer so nominated may then record instructions to the officer-in-charge of the police station on the same report and transmit the report to the Magistrate without delay. In practice the report of a cognizable offence is recorded in quadruplicate at the police station. One copy is retained in the record of the police station one is given to the complainant; the other is sent direct to the Ilaqa Magistrate, who is assigned that type of case to take cognizance of police report. A copy of the report is also sent to the Superintendent of Police who according to Rule 24.9(1) of the Police Rules maintains a register of cognizable offences. This register is to be sent on each working day to the District Magistrate when he is at the district headquarters. Again according to rule 24.15 every Superintendent of police is required to submit a special report in form 24.15 to the District Magistrate with regard to a murder. The above discussion would go to show that the District Magistrate is not only empowered to take cognizance of any criminal case in his district but actually does receive a copy of a report about every cognizable and special cases though not directly from the Station House Officer but through the Superintendent of police.

10. It was conceded before me by the learned counsel for the Stated that the District Magistrate in this case did not receive any report from the police. The next point requiring determination, therefore, is whether it is the actual, receipt of the report by the Magistrate its despatch by the police or it is only the entitlement to receive the same, which is a pre-requisite to the exercise of the jurisdiction under section 159, Cr. P. C. This is quite clear that the law casts a duty under section 157, Cr. P. C. on a police offices to send a report to the Magistrate. It vas never envisage-d under this pro vision that the police officer would refuse or omit to send that report so as to deprive the Magistrate of his power to order a magisterial inquiry. Again it is possible that though the police officer sends a copy of the report to the Magistrate yet the same is misplaced or lost. Would it then mean that in that event the power of the Magistrate under section 159, Cr. P. C. is frustrated just because he did not receive that copy? Does it mean that law envisaged emphasis on the form than the substance? Or would the Legislature have allowed the power conferred by it on the Magistrate to be so easily defeated by another functionary? Condonation of such a situation would amount to putting a premium on the serious omission to perform such a statutory obligation, which even otherwise would be legally enforced by. a direction from the higher administrative authority or the superior Court under their constitutional power. The mere despatch by the police officer or receipt by the Magistrate of the report, therefore, does not appear to be material and certainly was not the intention of the law. Further the question whether the Magistrate receives the report through an intermediary or directly is also immaterial. What appears to be important is the entitlement to, receive the report. The same view was taken in the case of Khuda Bux noted in para. 5 above in the following words: - "The Additional District Magistrate is the Ilaqa Magistrate in this case and I will presume that he had received a report in this case in accordance with section

157. Even if he had not in fact received the report, his authority to act would not be affected by the mere failure of the police officer to do his duty."

11. The above discussion leads to conclusion that: Every first class Magistrate in a district is competent to take cognizance of any case in the district unless his jurisdiction has been specifically curtailed of confined to a particular area or class of cases under section 12 of Cr. P. C. (b) Every District Magistrate shall be deemed to have received every copy of the police report under section 157, Cr. P. C. and he will -be com petent to order police investigation or a preliminary magisterial enquiry. (c) That it is not actual receipt of the copy which confers juiisdi6fid ii., but only the entitlement to receive the copy. Here I may point out that though normally every First Class Magistrate empowered to take congnizance of any case in the district yet this power is subject to the power of the District Magistrate to distribute the work. It is, therefore, not only desirable but necessary in the interest of justice to avoid confusion and to ensure against multiplicity of litigation that the Magistrates confine themselves to the business allocated to them by the District Magistrate. Further, may be the orders passed by them in cases not specifically allocated to them in the district are not illegal, in the light of above discussion, but they might be proceeded against administratively and it may also be at good ground for transfer of a case.

12. The next aspect that requires scrutiny is that for how long after the registration of a case is this power available to the Magistrate? There is no direct provision about this aspect in the Criminal Procedure Code. However, the wording of section 159, Cr. P. C. suggests that this 'power should be exercised at once on receiving the report. Therefore, the inquiry Should be directed at once or within a reasonable time after the receipt of the report. This point was considered in the case of Kondhanja Lall ((1899) A W N 87)' wherein it was held that where full inquiry into the truth of the information given to it has been made by the police, the Magistrate to whom such report has been made has no jurisdiction under this section or under section 202, Cr. C. P. to make a further inquiry into the same matter. Similarly when the report was submitted after the investigation the Magistrate was Held to have no jurisdiction to act under this section in Emperor v. Abdul Rehman (I L R 32 All: 30). Holding of an inquiry, after the final report under section l73 had been submitted, was held to be without jurisdiction in Maula Dearzi-v. Nauranji Lal ((1900) 4 C W N 351). Same view was taken in Tayabullah v. Emperor (A I R 1917 Cal. 593).

13. Section 192, Cr. P. C. deals with transfer of a case by the-District Magistrate or Sub-Divisional Magistrate to any Magistrate subordinate It, him for inquiry or trial, after taking cognizance. Under subsection (2) the same power may be conferred by the District Magistrate on any Magistrate of the 1st Class to transfer a case of which he has taken cognizance of, to a Magistrate subordinate to him. This transfer can be made for the purpose of `inquiry' or 'trial'. Cognizance under section 190 (1) (c) can be taken on the basis of any information received from any person other than a police officer. This could include the report of a 'preliminary' inquiry held -under section 159 as discussed above. The inquiry under section 192 is not only meant for the purpose of committal of the case to the Court of Sessions, but otherwise also. This is supported from the fact that the cases under sections 107, 110, 133, 144 (4), 145, 147, 487 and 556, P. P. C. which even do not pertain to offences but are otherwise criminal proceedings under the Code, can also be transferred. The term `inquiry' as used in the Code has also been interpreted in A I R 1941 Cal. 185 and A I R 1953 Cal. 109 to say that it has a wide connotation and includes every inquiry other than a trial conducted under Chapters VIII, XII and XVIII of the Code by a Magistrate or a Court. It was held in Hafiz Mohd. Sain v. Emperor (A I R 1931 Pat. 150) that the object of this provision is to have immediate notice of every serious crime so that he may be able to act if necessary under section

159. The preliminary inquiry under section 159 is meant to "otherwise to dispose of the case in a manner provided in this Code." The first step in this direction is exercising power under section 190, Cr. P. C. The same view was taken in Lakenath Parta v. Sanyasi Chanan Manna ((1903) 30 Cal. 923). In the case of Khuda Bakhsh, Kaikaus, J. observed as follows:- " .The argument put forward on behalf of the Crown is that the learned Addl. District Magistrate would have power to make or order an inquiry only if the police was not investigating the case. The simple answer to this argument is that the section does not say so. If the intention of the Legislature was that the Magistrate had authority to hold an inquiry only when the police had refused to investigate and that an investigation by the police was bar to any magisterial inquiry into the facts of the alleged cognizable offence, I do not see why such intention should not have been put in clear words. .. The observation that the Magistrate does exercise some control is definitely against the contention of learned counsel for the Crown. On general consideration too, it does not appear proper that if the police are conducting investigation in a manner deliberately unjust to the accused or the prosecution, the Magistrate, though he cannot stop the investigation, should also not be empowered to take steps to preserve evidence which may be destroyed." Similar views were expressed in the case of Government of Azad Jammu & Kashmir v. Muhammad Sadiq (P L D 1974 Azad J & K 57). This is further supported by the Supreme Court in Said Jalal v. State (1972 S C M R 515) with the following observation;:-- '' .We are told that the police has since completed the investi gation and submitted a report to the Magistrate concerned under section 173 of the Code of Criminal Procedure. If the result of the inquiry held by the Magistrate under section 159 of the Code be in conflict with the report submitted by the police under section 173, such an undersirable situation as I have just mentioned may arise. The Magistrate cannot dismiss the report submitted by the police under section 173 merely on the ground that the result of the preli minary inquiry conducted by the Magistrate is otherwise . . . . . . .. .'' The police investigation and preliminary inquiry therefore, can proceed side by side.

14. The above discussion makes it quite clear that police investigation and the preliminary inquiry can go on side by side. None of the; two authorities can stop the other to proceed with it. The preliminary inquiry, however, must come to an end after the Magistrate has taken cognizance of the case as he can direct another inquiry, if he so likes.

15. Now coming to the case in hand not only a challan had been submitted before the Court by the police on 21st July, a counter case through a private complaint had also been taken cognizance of by the committing Court. The stage for the preliminary inquiry has, therefore, passed away. In view of the above the judicial preliminary enquiry pending before Mr. Qaser Aminuddin Magistrate has no legal validity and consequently the order of the District Magistrate directing it, is set aside.