1996 PLP 1346 (MLD)

S. 120-B/109

Criminal Procedure Code (V of 1898), S.439

Complaint filed before the Ilaqa Magistrate had been returned in original to the complainant without recording any order thereon

Appeal filed by complainant was dismissed by Sessions Court for non-attachment of a certified or uncertified copy of the impugned order with the memorandum of appeal

Since the complaint was never entertained by the Magistrate in accordance with law and no order was made in writing, appeal' was not competent before the Sessions Court and as such the revision too before the High Court was premature and incompetent-- Revision petition was accordingly dismissed with the observation that if the complainant, instituted a fresh complaint, Trial Court would proceed in accordance with law as indicated in the order. Petitioner in person. M. Nasim Kashmiri, Addl. A.-G. for the State. This revision is directed against the order dated 23-11-1995 recorded by the learned Sessions Judge, Sheikhupura whereby the appeal of the petitioner was dismissed on the ground that he failed to attach a certified or uncertified copy of the impugned order. The petitioner was required by the learned Appellate Court about the non-filing of the copy of the impugned order, but could not give a satisfactory reply, whereupon the appeal was dismissed being not maintainable.

2. Feeling aggrieved of the aforesaid order, the petitioner has filed this revision wherein he has taken the plea that a complaint under section 109/120-B, P.P.C. was filed before the Illaqa Magistrate on 22-11-1995, but the same was returned in original on 23-11-1995 without recording any order thereon by the Magistrate. It is thus obvious that according to the petitioner no order in writing was made on his complaint which was presented to the Magistrate. In this situation, the petitioner could not present the impugned order. He has however, annexed a certified copy of the complaint as Annexure ' A' at page 7 of this petition. This copy was issued by the Copying Branch of the District and Sessions Judge, Sheikhupura.

3. A question would now arise as to how the complaint is to be dealt with by the Magistrate to whom it is presented. In this regard a perusal of section 200, Cr.P.C will show that the Magistrate should take cognizance of an offence- on a complaint at once by examining the complainant upon oath. However, if the Magistrate is not competent to take cognizance of the case, then he shall proceed under section 201, Cr.P.C. The Magistrate may also proceed under section 202, Cr.P.C. to postpone the issue of process by making an inquiry into the case himself or direct an inquiry or investigation to be made by the police officer etc. The Magistrate may thereafter either issue the process. under section 204, Cr.P.C. or dismiss the complaint under section 203,. Cr.P.C. after recording reasons thereof. In the instant case, according to the version given by the petitioner the complaint was never entertained by the Magistrate in the manner stated above. Since no order was made in writing, therefore, the appeal was not competent before the learned Sessions Judge and as such the revision too, before this Court was also premature, and incompetent. It is accordingly dismissed with the observation that the petitioner may institute a fresh complaint if so advised before the Court of competent jurisdiction. If any such complaint is instituted the learned trial Court shall proceed in the manner indicated above. N.H.Q./M-52/L Revision petition dismissed.