1991 SCMR 2157 (PLP)

The relevant provisions for the present discussion read as follows:‑ "S.200, Cr.P.C: "Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate: Provided as follows:‑ (a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192; or sending it to the Court of Session. (aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties: (c) when the case has been transferred under section 192 and the magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re‑examine the complainant." S.202. 'Postponement of issue of process.‑‑(1) Any Court, on receipt of a complaint of an offence of which it is authorised to take congnizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reasons to he recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any Justice of the Peace, or by a Police Officer; or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200. (2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or a police‑officer, such person shall exercise all the powers conferred by this Code on an officer in charge of a police? station, except that he shall not have power to arrest without warrant. (4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath". S.203. "Dismissal of complaint.‑‑The Court before whom a complaint is made or to whom it has been transferred or sent, may dismiss the complaint if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing." ??????????? S.204. "Issue of process.‑‑If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, it shall issue its summons for the attendance of the accused. If the case appear to be one in which according to that column, a warrant or, if it thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Court or (or if it has not jurisdiction itself) some other Court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process‑fees or other fees are payable, no process shall he issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Court may dismiss the complaint." ??????????? "S.

435. Power to call for records of inferior Court.‑‑ (1) The High Court or any Sessions Judge or District Magistrate, ,or, any Sub‑Divisional Magistrate empowered by the provincial Government in this behalf, may 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, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 437. (2) If any Sub‑Divisional Magistrate acting under subsection (1) considers that any such finding, sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate. (4) If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them." "S.436. Power to order inquiry. On examining any record under section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any Subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under S.203 or subsection (3) of section 204". In case of private complaints, after the examination of the complainant under section 200, an enquiry before summoning the accused can be held under section 202 Cr.P.C. But there is a pre‑condition. The summoning forthwith of the accused can be postponed only on recording of reasons for so doing, (i.e., postponing the summoning of the accused and holding the preliminary enquiry so called under section 202). If after the enquiry, if any, no case is made out the complaint is dismissed under section

203. Otherwise, if either without enquiry under section 202 or after the enquiry a case is made out, then under section 204 the accused is brought before the Court through summons or warrant as the case is made out. Under subsection (3) of section 204 a complaint can be dismissed also for non‑prosecution if process fee is not paid. Under section 435/436 the dismissals under sections 203 and 204(3) can be reversed by the Sessions Court and/or by the High Court and a "further enquiry" can be ordered. Many cases from various High Courts have been cited by the learned counsel that further enquiry under section 436 means an enquiry only under section 202 (under Chapter XVI) before the summoning of the accused and no other enquiry. Therefore the power to order further enquiry does not include the summoning of the accused, which it has been further argued follows the enquiry and does not precede it. It is true that section 436 does not mention in so many words the summoning of the accused. But if sections 202 and 203 are kept in mind and read together, there was no need to mention the obvious. In section 202 it is provided in positive language that one course is of summoning the accused forthwith without an enquiry. Though the other course of postponing the summoning is possible but for that, reasons are to be recorded Hence it is obvious that what

202. Cr.P.C. permits can undoubtedly be done by the Sessions Court under section 436, Cr.P.C.‑ namely summoning of the accused without enquiry. In other words if a Magistrate without an enquiry dismisses a complaint under section 203, Cr.P.C. (the words "after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202" visualise this possibility also, though not in practice under section 203) the Sessions Court can reverse the order in exercise of the combined power and effect under sections 435/436, Cr.P.C. read together. If he summons the record for examination of "correctness, legality or propriety" of any "finding, sentence or order and" "as to the regularity of any proceedings", it will be impossible to imagine that after reaching such finding say of reversal of an order of dismissal, the Judge would not say so. After having declared the order; say, as illegal, he has ample power to direct the Magistrate to do what he was empowered to do and could do under section 202 ‑ summoning the accused under section 202 without any further enquiry. Section 436, Cr.P.C. also visualises cases coming to the notice of the Sessions Judge "otherwise" than under section 435, Cr.P.C. In both the channels a further course is kept open as an additional option than to summon the accused forthwith (dispensing with enquiry under section 202, Cr.P.C.) which is the second alternative provided in section

202. This is made optional by use of the word "may' in section 436, Cr.P.C. That is, the Session, Judges' power is kept closest to the basic power‑conferring provision under section 202 summoning without or after enquiry. To sum up the Sessions Judge can order the summoning of the accused without an enquiry at all as under section 202, Cr.P.C. He can order summoning the accused on the basis of the. He can also postpone the summoning of the accused as under section 202 by recording reasons in that behalf and can order the Magistrate to hold enquiry as further enquiry, if some enquiry was held before dismissal under section 203, Cr.P.C. This Court has, in Khalas Khan and others v. The State (1968 SCMR 1100) held that further enquiry need not be confined to enquiry under Chapter XVI, Cr.P.C. (in which section 202 falls) but it also relates to enquiry under (the then existing) Chapter XVIII. In that sense the word enquiry would be read in a general sense of further proceedings which all enquiries are. There is nothing so strong in the language of Section 436, particularly in the context of section 435, to defy such an approach in interpreting a procedural provision in a practical manner. And it fits in the amended Code, as in 1972 after the repeal of Chapters XVIII and XXI and amendments in Chapter XX and addition of Chapter XII‑A with omission of Chapter XXIII. There is considerable case law on the point that the Magistrate can, after a remand by the Sessions Judge under section 435/436, Cr.P.C., summon the accused without any further enquiry. This has the approval of this Court as discussed above and also in the judgment in the case of Khalas Khan, with the addition however that if in the remand order there is a direction for further enquiry prior to the summoning it shall be obeyed. In the light of the foregoing discussion this appeal is dismissed. M.B.A./F‑221/S ???????????????????????????????????????????????????????? Appeal dismissed.