P L D 1959 (W (PLP)

Rashid‑uz‑Zaman, the respondent in this case, brought a complaint in the Court of the Additional District Magistrate, Sargodha, under sections 342, 452 and 323, P. P. C. alleging that on 13‑1‑1958,the petitioners, headed by Anwar Mahmood, Sub‑Inspector of Police, Police Station Miani, came to the house of Muhammad Inayat, his brother‑in‑law, forced his way into the house and arrested Muhammad Inayat and his servant. He also shut the womenfolk present in the house behind the doors. This occurrence was witnessed, among others, by Rashid‑uz -Zaman, respondent complainant. Muhammad Inayat and his servant were then taken to the Police Station Miani where they were mercilessly beaten. Muhammad Inayat is said to have fainted as a result of this beating. It is further alleged that Muhammad Inayat was seriously injured at the hands of Anwar Mahmood petitioner, and others, and then he was removed to the civil dispensary, Bhera. The motive, as alleged in the complaint, is that on 13‑1‑58, when the election of the office bearers of the Municipal Com mittee, Miani, was held, the petitioner Anwar Mahmood, Sub -Inspector, was injured by somebody and he entertained a suspicion that some party‑man of Muhammad Inayat had hit him. The complaint was filed in the Court of the Additional District Magistrate, on 1'8‑1‑1958. The statement of the respon dent complainant was recorded in the Court on the same day. The complaint was then sent to Mr. M. A. Leghari, Magistrate 1st Class, under section 202, Cr. P. C., for inquiry and report, without giving any reasons. It may be submitted that this Magistrate had no territorial jurisdiction for the case. After conducting the inquiry, Mr. M. A. Leghari submitted his report to the Additional District Magistrate, who proceeded against the petitioner and ordered for the issue of bailable warrants under sections 452, 323, 166, 379, 354 and 342, P. P. C. It is contended by the counsel for the petitioners that the petitioner Anwar Mahmood, Sub‑Inspector, was on duty to maintain law and order at the time of the election 'on 13‑1‑58, which was held and conducted by Resident Magistrate, Bhalwal. It is further alleged that Muhammad Inayat's party came out successful in the election and in a rejoicing mood, one Yasin Arain, a member of this party threw a cracker in the crowd, which resulted in provocation to the defeated party. The Sub -Inspector, it is stated, asked Muhammad Inayat and his party men not to do so, but they attempted to attack the Sub‑Inspector and his constables. The petitioner, Anwar Mahmood, Sub- Inspector, tried to check their high‑handedness but they assaulted him and his constables. The petitioner Anwar Mahmood received a serious injury. He arrested Muhammad Inayat and another person on the spot while the others ran away. A case was, accordingly registered under sections 323, 333, 353, etc., P. P. C. and Muhammad Inayat and his party men were challaned and sent up for trial in the Court of Resident Magistrate, Bhalwal. Lastly, it is contended that the occurrence, as is alleged in the complaint, never took place, and the complaint has been brought against the petitioners with a view to harassing him and spoiling the challan case. I have heard the counsel for the petitioners. The proceedings are forwarded for revision on the following grounds :‑

1. The Additional District Magistrate did not record the statement of the respondent‑complainant on 18‑1‑1958, in his own hand, but, as the record shows, the statement was reduced to writing by the Ahmad of his Court, apparently not under his supervision and direction and according to his dictation. It is the primary duty of the Magistrate, before whom a com plaint is presented, to record the statement forthwith under section 200, Cr. P. C. and by a careful examination of the complaint, to ascertain the truth of the allegations. Such impro perly recorded statements cannot be regarded as statements con templated under sections 200, and 202, Cr. P. C. As the provisions of section 200, Cr. P. C. were not complied, with the stage for an inquiry under section ,202, Cr. P. C. was premature.

2. According to the mandatory provisions of section 202, Cr. P. C. it is imperative for a Magistrate, while giving direction for inquiry under this section, to record in writing reasons for sending the complaint to a subordinate Magistrate. But the record of this case shows that no such reasons were recorded. It has been alleged by the petitioners that the inquiry Magistrate is greatly interested in the complainant party and justice has not therefore been done to them.

3. It has also been argued by the counsel for the petitioners that a 1st Class Magistrate is not subordinate even to the District Magistrate, as contemplated under section 202, Cr. P. C., the latter being the Magistrate of the same class. The case of Ali Muhammad, 1912 P. R. 2, which has been cited by the learned counsel in support of his contention has not so far been dissented from. I have, therefore, no hesitation in accepting this contention of the learned counsel.

4. The Additional District Magistrate was not competent to take cognizance of an offence under section 166, P. P. C. with out the previous sanction of the authority competent to remove the petitioners from service, as contemplated by the provisions of the Criminal Law Amendment Act, 1948. The issue of process against the petitioners was, therefore, unwarranted.

5. It is argued that if an imperative provision of any statute has been violated, the violation cannot be cured. It can only be cured, if any directory provision of law has been violated. In support of this Hira Lal Ghose v. King‑Emperor (1924 Cal. 889), has been cited by the learned counsel for the petitioners. In this case imperative provisions of law have been violated which has occasioned miscarriage of justice.

6. In view of these facts, the record of the case is forwarded to the High Court of West Pakistan, Lahore, under section 438, Cr. P. C. with the recommendation that the order of the learned Additional District Magistrate, Sargodha, dated 6‑2‑1958, be set aside and the proceedings quashed. 31st May, 1958. This is a reference made by the learned District Magistrate of Shahpur, under section 438 of the Code of Criminal Procedure (hereinafter referred to as `the Code') recommending that the order, dated the 6th of February 1958, passed by the Additional District Magistrate, Sargodha, in the complaint case of Rashid- uz‑Zaman v. Ch. Anwar Mahmud and others under sections 452 etc., be set aside, and the proceedings be quashed.

2. The facts giving rise to this reference are these : On the 18th of January, 1958, Rashid‑uz‑Zaman respondent filed a complaint in the Court of the Additional District Magistrate, Sargodha, against Ch. Anwar Mahmud, S. H. O., Police Station Miani, and three other subordinate police officials under sections 452, 455, 342 and 323 of the Pakistan Penal Code. The gist of the complaint was that on the 13th of January 1958, at 10 a.m., the election of the office bearers of Miani Municipal Committee was held in the Town Hall, and that after the election was over the complainant and his brother‑in‑law, Muhammad Inayat, Municipal Commissioner, Miani, came to the house of the latter where, at about 11 a.m., the four accused came, and after breaking open the doors of the house of Muhammad Inayat entered it, and when the womenfolk protested they insulted them and illegally confined them in a room. Thereafter, they arrested Muhammad Inayat and one Salehon and took them to the Police Station where Muhammad Inayat was mercilessly beaten, and in order to save themselves from the consequences of their high‑handedness, registered a false case against Muhammad Inayat and others and then they removed Muhammad Inayat to the Civil Dispensary at Bhera where he was admitted as an indoor patient. The motive for the commis sion of these offences was said to be that Ch. Anwar Mahmud had received an injury during the scuffle which took place after the election was over, and he entertained a suspicion that he had been injured by some partisan of Muhammad Inayat.

3. On receipt of this complaint, the Additional District Magistrate recorded the statement of the complainant on the same day, and then sent a copy of the complaint to Mr. Manzur Ahmad Khan Leghari, Magistrate 1st Class, for inquiry and report, as provided by section 202 of the Code, Mr. Leghari after holding the necessary inquiry submitted his report on the 27th of January 1958 and on the 6th of February 1958, the learned Additional District Magistrate, after perusing the report and hearing the arguments presumably of the counsel for the complainant ordered that prima facie a case was made out against the four accused under sections 452, 354, 342, 379, 323 and 166 of the Pakistan Penal Code and directed the issue of bailable warrants in the sum of Rs. 2,000 against each of the accused.

4. The four accused appeared in the Court on the 17th of February 1958 and then the learned Additional District Magis trate fixed the 20th of March 1958 for recording the prosecution evidence. In the meantime, the accused filed a revision petition before the District Magistrate praying that the order of the Additional District Magistrate, dated the 6th of February, 1958, be set aside and the proceedings initiated against them be quashed.

5. The learned District Magistrate has forwarded these proceedings to this Court for setting aside the aforesaid order of the Additional District Magistrate and for quashing the proceed ings. In support of his recommendation, he has given various reasons in his order of reference which I propose to deal with in seriatim.

6. The first ground taken up by the learned District Magis trate is that the Additional District Magistrate did not record the statement of the complainant in his own hand and that it was reduced to writing by the Ahmad of his Court apparently not under his supervision and direction. I have carefully examined the record and I find that as soon as the complaint was presented before the Additional District Magistrate, the following order was passed :‑ " Complainant present with his counsel. His statement may be recorded." This order is duly signed by the Additional District Magistrate. Then the statement of the complainant covering about two pages was recorded, and the record shows that it was read over to the complainant who signed it in token of its correctness. This statement is also duly signed by the Additional District Magis trate. The question, therefore, is whether the objection taken by the learned District Magistrate has any substance in it. Although there is nothing to indicate that the statement was not recorded by the Additional District Magistrate in his own hand, yet I shall presume for deciding this reference that, in fact, it was not so recorded and that it was reduced to writing by the Ahmad of his Court. But there is no material on the record to suggest that the statement of the complainant was not recorded in the presence and hearing and under the personal direction and superintendence of the Additional District Magis trate. There is no reason to suppose that the Additional District Magistrate had not performed his judicial duties with due regard to form and procedure. In the circumstances of the case, the well‑known maxim "omnia praesumuntur rite esse acta" is fully applicable. This principle is statutorily recognised in sections 80 and 114 of the Evidence Act. Illustration (e) of section 114 provides that the Court may presume that judicial and official acts have been regularly performed, i.e., that what A ought to have been done in connection with an official act was, in fact, done, and section 80 declares that the record of the evidence of a witness given in a judicial proceeding shall be presumed to be duly taken. In view of these provisions of law a presumption arises that the statement of the complainant was recorded in the presence and hearing and under the personal direction and superintendence of the Additional District Magistrate. There is nothing in the record to rebut this presumption and I have not been able to discover any ground whatsoever for the assumption which the learned District Magistrate has made that the statement was not recorded under the supervision and direction of the Additional District Magistrate. I am, therefore, not satisfied that any irregularity had been committed by the learned Additional District Magistrate in recording the statement of the complainant.

7. The learned counsel for the accused‑petitioners has, however, pointed out that according to section 356 of the Code, the Magistrate should have recorded the statement in his own hand, and if for some reason he was unable to do so he should have made a memorandum of the substance of what the com plainant had deposed and such a memorandum should have been written and signed by the Magistrate which should have formed part of the record, and if the Magistrate was prevented from making the memorandum also he should have recorded the reasons of his inability to make it. Subsection (1) of section 356 requires that in all trials, other than those of summons cases, the evidence of each witness shall either be recorded by the Magistrate himself or by somebody else in his presence and hearing and under his personal, direction and superintendence and shall be signed by him, and subsection (3) provides that in case the statement is not recorded by the Magistrate himself he shall make a memorandum of the substance in his own hand of what such witness deposes. This section is no doubt applicable to all trials other than those of summons cases. The question, however, arises that when the statement of a complainant is recorded as required by section 200 of the Code whether the provisions of section 356 are applicable to it. The word "trial" is not defined in the Code, but it generally means the commence ment of the proceedings in the presence of an accused. This view finds considerable support from the following authorities, which lay down that in warrant cases the proceedings are only `inquiries' up to the time of the framing of the charge, and that the inquiry is converted into a trial when the accused pleads to the charge :‑ Sitao v. Emperor (A I R 1943 Nag. 36) ; Hasta v. Emperor (29 (Cr.) P R 1914) ; Muhammad Hussain v. Fakhrullah (A I R 1932 Oudh 298) and Ramanathan Chetiar v. Emperor (A I R 1923 Mad. 660). If the word `trial' in section 356 is to be given the same meaning as has been given in the above‑noted cases, then the requirements of that section would be attracted only after the stage of the framing of the charge. But having regard to the particular context and the purpose of section 356, I think that such a restricted meaning was not contemplated by the Legislature. In my opinion the word `trial' in section 356 has been used in a wider sense to cover the proceedings which take place in the presence of an accused. Besides, the procedure in warrant cases is governed by the provisions laid down in Chapter XXI of the Code, and section 200 occurs in Chapter XVI, which deals with the procedure to be adopted in regard to complaints to Magistrates. There is no provision in this Chapter requiring the Magistrate to comply with the provisions of section

356. It is therefore, clear of the examination of a complainant under section 200 of the Code. The essential requirements of this section are that the substance of the examination of the com plainant shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. It is nowhere laid down that the substance of the examination shall be reduced to writing by the Magistrate in his own handwriting. The relevant instructions on the point are contained in Chapter I‑B of the Rules and Orders of the High Court, Volume III, and they also do not prescribe that the record of the statement of the complainant is to be prepared by the Magistrate in his own handwriting. I am, therefore, of the opinion that the Additional District Magistrate was not under any legal obligation to make a memorandum of the substance of what the complainant had deposed, and he did not commit any irregularity in omitting to do so, and consequently the proceedings are not vitiated on that account. I am fortified in this view by the decision of Shabir Ahmad, J. in S. Iqbal Hussain v. S. Irshad Hussain (P L D 1958 B J 1).

8. But assuming that it was necessary, for the Additional District Magistrate to make a memorandum of the substance of the evidence in his own handwriting, I do not think that the omission to make such a memorandum vitiates the proceedings. The proposition that such an omission does vitiate the proceed ings, no doubt finds support from the judgment of the learned Chief Justice of the Lahore High Court in Muhammad Sarwar v. Khuda Bakhsh (P L D 1950 Lah. 274), where the order of acquittal was set aside on the short ground that both the Magistrates who had dealt with the case had not complied with the provisions of section 356 of the Code, because neither of them had written the evidence himself or had made the required memorandum or had given the reasons of his inability to make such a memorandum. The proceedings in that case were set aside at the instance of the complainant who had alleged that his statement had been tampered with by the Reader of the Court, and this allegation had been accepted by the learned Sessions Judge who had made the recommendation for setting aside the acquittal. It however appears that an earlier decision by a Division Bench of the same High Court was not brought to the notice of his Lordship. In that case, which is reported as Muhammad Aziz v. The Crown (P L D 1950 Lah. 134), the learned Judges constituting the Division Bench had an occasion to deal with a similar question which had arisen due to the fact that the Sessions Judge had not recorded the evidence in his own hand and had also not made a memorandum of the evidence as required by section 356 of the Code. The learned Judges, after reviewing the case‑law on the subject, observed that the principle laid down by the Privy Council in the case of Abdul Rahman v. The King Emperor (I L R 5 Rang. 53) governed the facts of the case and accordingly held that it was a curable irregularity under section 537 of the Code. Later, in the year 1951, another Division Bench of the Lahore High Court consisting of the learned Chief Justice himself and Mr. Justice Muhammad Khurshid Zaman dealt with the same question in Rehmat Khan and another v. Crown (P L D 1951 Lah. 228) and held that in view of the provisions of section 537 of the Code the conviction could not be set aside in the absence of any possible failure or miscarriage of justice. In that case also, the provisions of section 356 had not been complied with by the Sessions Judge inasmuch as no memorandum of the substance of what each witness had deposed, had been prepared by him with his own hand. In view of the ‑latest authority on the point involved, the first authority quoted above ceases to have any weight. I, therefore, hold that in cases to which the provisions of section 356 are applicable, although it is necessary that a Magistrate not recording the evidence himself should prepare a memorandum of the evidence as required by subsection (3) of section 356, yet the omission to do so by itself does not vitiate the proceedings unless it results in failure or miscarriage of justice. In this view of the matter, there is no substance in the objection raised by the learned District Magistrate.

9. The second irregularity which the learned District Magis trate has pointed out is, that the Additional District Magistrate did not record in writing any reasons for sending the complaint for inquiry to another Magistrate as he should have done under the mandatory provisions of section 202 of the Code. It is true that in his order dated the 18th of January 1958, the learned Additional District Magistrate has not given any specific reasons for sending the complaint for inquiry. A perusal of section 202 shows that the Magistrate is required to give his reasons in writing for postponing the issue of process to the persons Com plained against. At this stage, a Magistrate has three courses open to him. (1) He may issue process to the accused, or (2) He may dismiss the complaint, or (3) He may hold an inquiry or direct such an inquiry to be made by the persons specified in section

200. For adopting the third alternative, it is, however, incumbent upon the Magistrate to record his reasons for doing so. In other words, it means that ordinarily the Magistrate has to accept the statement. of the complainant made on oath, but if he dis believes the statement of the complainant altogether or comes to the conclusion that no offence is made out, it is his duty to dismiss the complaint under section 203 of the Code. But if, on the other hand, he has got some doubt about the truth of G the accusation made by the complainant it is open to him to postpone the issue of process pending further inquiry as con templated by section 202, and in such an eventuality he has got to record his reasons for postponing the issue of process. The intention appears to be that in case the complainant goes up in revision against the order of the Magistrate the superior Court may be in a position to judge for itself the reasonableness of the grounds on the basis of which the Magistrate had post poned the issue of the process. In my opinion, it is only for the benefit of the complainant that the law requires that the Magis trate should record his reasons for postponing the issue of process against the accused. But if no reasons are recorded the H accused has got nothing to complain about it. He is not in any way prejudiced by it. It is rather to his advantage that] further inquiry is directed in order to ascertain the truth or falsity of the complaint. However, the learned counsel for the accused has cited some authorities in support of his contention that it is incumbent upon the Magistrate to record his reasons for postponing the issue of the process. These tire Mukti Narayan Gir v. Emperor (A I R 1940 Pat. 97), Jagindar Singh v. Agha Safdar Ali Khan (A I R 1928 Lah. 88) ; Balailall v. Pashupati (A I R 1917 Cal. 462) and M. H. Crowder v. L. A. Morrison (A I R 1926 Sind 194). It is true that in all these cases the learned Judges have observed that the Magistrates should record their reasons for not issuing the process against the accused before sending the complaint for further inquiry under section 202 of the Code. But the question has not at all been considered in any of these cases as to whether the proceedings are vitiated on account of the omission to record the reasons for not issuing the process. This has, however, been duly considered in the following cases where the learned Judges have held that the omission by the Magistrate to record reasons for postponing the issue of process is, merely an irregularity and does not vitiate the proceedings unless there is a failure of justice :‑ Emperor v. Finan (A I R 1931 Born. 524) ; Ajoy Krishana Sarkar v. S. G. Bose (A I R 1929 Cal. 176) ; Ram Saran Singh v. Muhammad Jan Khan and another (A I R 1926 Pat. 34) ; Dharamdas Lila Ram v. Pilcher (A I R 1931 Sind 113) ; Madhogir v. Rashid Ahmad (A I R 1917 All. 91) and Emperor v. Alagiriswami (25 Mad. 546). It will thus be seen that almost all the High Courts are unanimous that the omission to record such reasons is a curable irregularity.11 I have, therefore, no hesitation in holding that the mere fact that the learned Additional District Magistrate did not record his reasons for postponing the issue of the process is not such an irregularity as to vitiate the proceedings, and would not justify the setting aside of the order.

10. The third irregularity which has been pointed out by the learned District Magistrate is that Mr. Manzur Ahmad Khan Leghari Magistrate First Class to whom the copy of the com plaint was sent for further inquiry and report was not sub ordinate to the Additional District Magistrate and, therefore, the sending of the complaint to him was in violation of the provisions of section

202. In support of this conclusion, he has cited the case of Ali Muhammad v. Emperor (2 (Cr.) P R 1912). In that case, the District Magistrate had sent the complaint to a Magistrate First Class for inquiry and report under section 202 of the Code, and Mr. Justice Rattigan, while dealing with this aspect of the case, observed as follows :‑ "They are both Magistrates of the 1st Class, and it would seem that the District Magistrate, as such Magistrate of the 1st Class is not competent to direct another Magistrate of the 1st Class to make inquiry under that section. This, however, is a minor point and I do not lay any stress upon it, or indeed give any final decision thereon." It appears that the relevant provisions of law was not brought to the notice of his Lordship because I find that section 17 of the Code clearly lays down that all Magistrates appointed under sections 12, 13 and 14 shall be subordinate to the District Magistrate. The Magistrates of the First Class are appointed under section 12 of the Code; and consequently there can be no doubt that they are subordinate to the District Magistrate. There is no reason to suppose that they are subordinate to the District Magistrate only in their executive capacity and not in respect of their judicial functions. It has been held in the under mentioned cases that a First Class Magistrate is necessarily inferior to the District Magistrate for the purposes of sections 435 and 350 of the Code inasmuch as under section 17 of the Code he is subordinate to the District Magistrate Inder Singh v. Emperor (30 Cr. L J Lah. 490) ; Waryam v. Amir (10 (Cr.) P R 1894) ; Queen Empress v. Pirya Gopal (9 Born. 100) ; Queen Empress v. Laskari (7 All. 853) and Opendra Nath Ghose v. Dukhini Bewa (12 Cal. 473). It is, therefore, clear that first class Magistrates are subordinate to the District Magistrate even in respect of their judicial functions. I am, therefore, constrained to hold, though with the utmost respect, that 2 (Cr.) P R 1912 does not lay down good law on the point involved. Besides it is quite clear that the learned Judge had not given any final decision in the matter. But the question still remains to be considered whether a First Class Magistrate is subordinate to the Additional District Magistrate. It is under section 10 of the Code that a First Class Magistrate is appointed as an Additional t District Magistrate and such Additional District Magistrate exercises all or any of the powers of a District Magistrate as the Provincial Government may direct. By the Punjab Government's letter No. 10993‑53‑5G/ Gaz., dated the 28th December, 1953, extensive a powers were given to the Additional District Magistrates, and the District Magistrates were relieved of their responsibility for supervision of the work of judicial Magistrates. Para. 7 of the letter, inter alia, says `that the judicial Magistrates First Class Magistrates doing judicial work as provided for in this letter will be subordinate to the Additional District Magistrate and not to the District Magistrate, and the Additional District Magistrates will deal with all appeals or revision applications which would normally have come to the District Magistrate, and they will also deal with the transfer applications in respect of cases pending in the Courts of the Judicial Magistrates.' In view of these enormous powers, there can be no doubt that all judicial Magistrates working in the District were subordinate to the Additional District Magistrate. Although this scheme has now been withdrawn with effect from the 28th of October 1958, vide letter of the Government No. 22/1‑H‑Judl/56, 'dated the 28th of October, 1958, yet at the relevant time when the com plaint was sent by the Additional District Magistrate to Mr. Manzoor Ahmad Khan Leghari, it was fully effective. There is, therefore, no reason to hold that Mr. Manzoor Ahmad Khan Leghari was not a subordinate Magistrate to the Additional District Magistrate within the meaning and scope of section 200.

11. The last irregularity which had been pointed out by the learned District Magistrate in his order of reference is that the Additional District Magistrate could not have taken cognisance of an offence under section 166, P. P. C., without the previous sanction of the appropriate Government, as this offence is triable under the provisions of the Pakistan Criminal Law Amendment Act (XIX of 1948). This objection, appears to be sound. An offence under section 166, P. P. C. is one of the offences enumerated in the Second Schedule, appended to the Criminal Law Amendment Act, and subsection (3) of section of this Act provides that notwithstanding anything contained in the Code of Criminal Procedure or in any other law, the offence, specified in the Second Schedule shall be triable exclusively by Special Judges, and section 3 (1) provides that such offence., shall be tried by Special Judges under the Criminal Law Amend ment Act. Subsection (5) of section 5 of this Act further provides that the previous sanction of the appropriate Govern ment shall be required for any prosecution under this Act. It is, therefore, clear that in the absence of previous sanction by the appropriate Government, the accused could not be prosecutes: for an offence under section 166, P. P. C. It therefore follows that the order of the learned Additional District Magistrate to e extent of summoning the accused to answer the charge for an offence under section 166, P. P. C. being without jurisdiction shall have to be quashed. But this, in my opinion, does not result in vitiating the entire proceedings. It may be noticed that the complainant had not alleged the commission of any offence under section 166, P. P. C. in his complaint. This how ever, is not very material, because as I understand it, it is not the duty of a complainant to enumerate the sections under which the accused is to be charged. In view of the definition of `complaint' as given in clause `h' of subsection I of section 4 of the Code what is necessary is that the complainant should allege facts with which he wishes to charge the accused and it is the duty of the Magistrate to apply his mind to the facts alleged, and then to form an opinion if they constitute any offence. On the facts of the present case, the learned Additional District Magistrate arrived at the conclusion that prima facie offences under sections 452, 354, 342, 379, 323 and 166, P. P. C. had been committed by the accused. He, however, overlooked the fact that the accused could not be prosecuted for an offence under section 166, P. P. C. without the previous sanction of the appropriate Government. Had it been present to the mind of the Additional District Magistrate he would have either not summoned the accused to answer a charge under section 166, P. P. C. or would have stayed his hands until the previous sanction of the appropriate Government had been obtained. But the question is whether he could not have proceeded with the complaint at all, even if he felt satisfied that some other offences besides an offence under section 166, P. P. C. had been committed by the accused. I have not come across any provision of law or authority to show that he could not have proceeded with the case even in respect of the other offences. The learned counsel for the accused has also not been able to cite any authority in support of this proposition. He promised to send an authority if he could find one, but so far his promise has remained un fulfilled. I presume that he could not find such an authority. As there does not appear to be any bar to the prosecution of the accused for offences other than an offence under section 166, P. P. C., 1 am inclined to hold that the Magistrate could proceed with the case in respect of offences under sections 452, 354, 342, 379 and 323, P. P. C., for which no sanction is required. This view finds some support from a decision of a Division Bench of the Lahore High Court in the case of Crown v. Babu Khan (P L D 1952 Lah. 472) where it was held by the learned Judges constituting the Bench that the public servant concerned in that case could be tried under section 408, P. P. C., without the sanction of the competent authority although the act complained of also constituted an offence under section 5 (1) (c) of the Prevention of Corruption Act 1947, which could not have been taken cognisance of .without the sanction of the competent authority as required by section 6 of that Act.

12. For the reasons stated above, I set aside the order of the Additional District Magistrate, dated the 6th of February 1958, only in respect of the offence under section 166, P. P. C. The remaining order in respect of the other offences remains unaffected. As I find no valid ground for quashing the proceed ings, I reject this reference. Let the record be returned to the Additional District Magistrate for proceeding with the case in accordance with law. A. H. Order accordingly.