P L D 1953 Baghdad﷓ul﷓Jadid 33 (F (PLP)

(1) What is the effect of Bahawaipur Government Notification No. 27, dated the 3rd of June 1947 on provision contained in section 195, Cr. P. C. as far as it concerns the necessity of a complaint by the Public Servant whose order has been violated? It may be noted that the Notification in question has made an offence under section 188, P. P. C., both cognizable and non bailable. (2) Does not the expression "complaint" as used an section 195, Cr. P. C., mean a complaint as defined in section. 4 (1), Part (h), Cr. P. C. (3) Should the Bar Association as such be allowed to move the High Court to exercise its revisionary powers when the persons affected by the order sought to be revised are well to do and educated people and have purposely failed to avail of the right of appeal or revision which law gives them. (4) Should the High Court revise an order the period of operation of which has already expired. The Registrar High Court will fix a date for the hearing of these petitions by the Full Bench and will inform the Govern ment Advocate and Messrs Mahmud Khan and Farzand Ali of it. ABDUL HAMID MALIK, J.‑These are three petitions for revi sion Nos. 47, 48 and 49 of the order passed by Khan Mustafa NawazKhan section 30 Magistrate, Bahawalpur on 9th March 1953, 17th March 1953 and 18th March 1953 respectively by which he convicted 242 persons under section 188, P.P.C. for disobedience of an order of the District Magistrate, Bahawalpur duly promul gated under section 144, Cr. P. C., on 2nd March 1953. The revision petition (No. 47) was filed by Mr. Farzand Ali, Advocate, on behalf of the Bar Association qua the 12 persons whose names are noted in the margin while the remaining two petitions for revision were filed by Sardar Mahmood Khan Advocate, on behalf of 230 persons whose names are mentioned on a separate sheet of paper annexed with this judgment. All these three petitions came up for hearing before the learned Chief Justice who considered that many important questions of law were involved and therefore referred them for adjudication to the Full Bench. These petitions, have accordingly come to us for decision. At the out‑set I consider it necessary to state briefly the facts of the cases out of which these three revision petitions have arisen. The District Magistrate, Bahawalpur on being apprised that people were proceeding to Karachi pell‑mell with a view to parti cipating in Anti‑Ahmadi agitation and starting Direct Action against the Central Government at Karachi, thought it expedient in the interests of preservation of public peace and tranquility in the State to stop them from going. He therefore promulgated an order under section 144, Cr. P. C. prohibiting organized departure of persons from Bahawalpur District to Karachi. The said order was promulgated on 2nd March 1953, and was to remain in force for one month. All the 242 persons referred to above violated the above order of the learned District Magistrate with the result that they were arrested and eventually tried by Khan Mustafa Nawaz Khan section 30 Magistrate, Bahawalpur. These persons admitted that they were proceeding to Karachi in contravention of the order of the District Magistrate promulgated on 2nd March. All of them were convicted and sentenced to various terms of imprisonment. Both the counsel referred to above urged before the learned Chief Justice (sitting a s a single Judge) that no complaint had been lodged by the District Magistrate, Bahawalpur whose order had been violated and that the Magistrate was wrong in taking cogniz ance of the offence under section 188, P.P.C. in the absence of the complaint. It was also pointed out that the mere fact that an offence under section 188, P.P.C., was made cognizable and non bailable in the State did not ipso facto repeal the mandatory pro vision of section 195 (1), Cr. P. C. The learned Government Advocate on the basis of some rulings tried to controvert the contention. He further pointed out that the period of operation of the order of section 144 had expired and therefore the High Court was not empowered to go into the merit or otherwise of the order in question. It was also urged that Mr. Farzand Ali could not appear amicus curiae in the interest of those persons who had not filed any appeal or revision against the order of their convictions and sentences. Thereupon the learned Chief Justice formulated the following questions and referred them to the Full Bench for authoritative pronouncement :‑ (1) What is the effect of Bahawalpur Government Notification No. 27, dated the 3rd of June, 1947 on provision contained in section 195, Cr. P. C., as far as it concerns the necessity of a complaint by the Public Servant whose order has been violated ? It may be noted that the Notification in question has made an offence under section 188, P. P. C., both cognizable and non. bailable. (2) Does not the expression complaint' as used in section 195, Cr. P. C., mean a complaint as defined in section 4 (1), Part (h), Cr. P. C.? (3) Should the Bar Association as such be allowed to move the High Court to exercise its revisionary powers when the persons affected by the order sought to be revised are well‑to‑do and educated people and have purposely failed to avail of the right of appeal or revision which law gives them. (4) Should the High Court revise an order the period of operation of which has already expired ? It has been tenaciously argued by Mr. Farzand Ali and Sardar Mahmood Khan Advocates that the trial of the petitioners was void as cognizance of the offence under section 188, P. P. C., was taken in contravention of the provision of section 195 (1), Cr. P. C. The relevant provision of the section referred to above runs was follows :‑ (1) No Court shall take cognizance (a) of any offence punishable under sections 1 i2 to 188 of the P. P. C., except on the complaint in writing of the Public Servant concerned or of some other public servant to whom he is subordinate. It is clear from the perusal of the above section that no Court can take cognizance of an offence falling within the ambit of section 188, P. P. C. unless there is a complaint in writing of the Public Servant whose order has been flouted. It follows that in the absence of the complaint no Court is empowered to take cogniz ance of the offence referred to above. It is admitted by the learned Government Advocate that there was no complaint lodged in this case by the District Magistrate whose order was violated. He has however tried\1to meet the objection by stating that the Bahawal pur Government has made an offence falling under section 188, P. P. C. as cognizable and non‑bailable. Reference in this consection has been made to section 82 of the Bahawalpur State Public Security Act, 1944 which provides :‑ (1) The Government may, by notification in the Gazette, declare that any offence punishable under the Penal Code as in force in the State which may be analogous to the offence punishable under sections 186, 188, 189, 228, 295‑A, 298, 505, 506 or 507 of the I. P. C., when committed in any area specified in the notification, shall, notwithstanding anything contained in the Code of Criminal Procedure as in force in the State, be cognizable, and thereupon the Code of Criminal Procedure, as in force in the State shall, while such notification remains in force, be deemed to be amended accordingly. (2) The Government may, in like manner and subject to the like conditions, and with the like effect declare that an offence punishable under the Penal Code as in force in the State which may be analogous to the offence punishable under section 188 or section 506 of I. P. C., shall be non‑bailable. Upon this, again we are referred to a notification issued by the Bahawalpur Government on 3rd June 1947 (No. 27) stating that:‑ "In exercise of the power conferred by clause 2 of section 82, P.S.A. the Bahawalpur Government is pleased to declare that any offence punishable under sections 186, 188 when committed within the jurisdiction of the Bahawalpur Government shall be cognizable and non‑bailable and that the Code of Criminal Procedure shall be deemed to be amended accordingly:‑ On the basis of the above notification it is vehemently con tended by the learned counsel for the Crown that the Bahawalpur Government by making an offence under section 188, Cr. P. C. as cognizable, has repeated, by implication section 195 (1), Cr. P. C. He further says that the provision that the offence shall be cognizable unequivocally connotes that it shall be cognizable and that it will be treated as such throughout the Code. It is further urged that in a normal case where the police can arrest without a warrant then the police, after usual investigation, send a charge‑sheet under section 173, Cr. P. C. to the Magistrate who is bound to take cognizance of the offence on a police report under section 190 (b). Briefly speaking, his argument comes to this, that the Bahawalpur Government by taking the offence under section 188, Cr. P. C., from the category of non‑cognizable cases and placing it in the category of cognizable cases has dispensed with the necessity of having the complaint made in such a case by the Public Servant concerned. In the alternative it was pleaded that even if it be held that the lodging of complaint by the Public Servant whose order was disobeyed was necessary the fact that the police registered the case on the basis of the order promulgated by the District Magistrate under section 144 should considered as a sufficient compliance of section 195 (1), Cr. P.C. As a last resort a faint attempt was also made to show that at the most the omission of filing a complaint had not resulted in any miscarriage of justice and therefore the illegality or the irregularity was curable under section 537, Cr. P. C. In order to fully understand the implication it is necessary to see whether the Legislature intended that by making the offence under section 188 cognizable the requirement of the provisions of S. 195 were abrogated. Reliance is placed on 1943 All. 6, where Allsop, J., observed that "the term complaint in section 195 is not used in the technical sense in which it is defined in section 4 (1) (h), Cr. P. C The intention of section 195 is only that the Magistrate should not punish any person except at the instance of the Public Servant concerned." The facts in the ruling quoted above were that a person who was a Civil Court Amin was obstructed in the execution of his duty and he made a complaint of this to the police. The Magistrate acting on the police report convicted the accused under section 186, P. P. C. An objection was raised that the Civil Court Amin did not prefer any complaint in the Court and therefore the Magistrate could not take any cogni zance of the offence. It was however held by the learned Judge referred to above that the report made by Court Amin to the police and his subsequent evidence in Court were sufficient com pliance of section 195 (1), Cr. P. C. I regret, with due respect, that I cannot agree with the' reasoning of Allsop, J. The term complaint has been defined in section 4 (1) (h), Cr. P. C. and it clearly excludes police report. It is therefore difficult to hold that the word "complaint" occurring in section 195(1) includes a police report. I am therefore not pre pared to give a different me fining to the word, "complaint" from the one given in section 4 (1) (h). I have not been able to persuade myself to agree to the view that a police report is tantamount to a complaint. The perusal of section 195 (1) clearly shows that no Court can take cognizance of an offence under section 188 unless and until there is a complaint before the Court by the officer whose order has been flouted. In the present case there was no complaint and all that we have got is a police report under S. 173, Cr. P. C. The proceedings in the Court really start when the accused is placed before the Court. The police are empowered to investigate the commission of a cognizable offence and send the charge‑sheet to the Magistrate who can take cognizance of offence under section 188 only on a complaint and not on police report. If no complaint is made to the Magistrate there is no jurisdiction conferred on the Magistrate to take cognizance of the offence in question. It will therefore be essential that there should be complaint before him to enable him to proceed with the trial of the offence under section

188. The view, that the lodging of complaint by the officer con cerned is necessary finds support from the 2 rulings reported as 1931 Cal. 122 and 1931 Bom.

135. It was laid down in those rul ings that the fact that the offence under section 188 has been made cognizable and non‑bailable did not ipso facto empower the Magistrate to take cognizance of the offence under section 188, P. P. C. It was also observed in the Calcutta ruling cited above that "It is not now possible to say that merely by making this class of offence cognizable and non‑bailable the necessity has been dispensed with of having complaint in such a case by the superior of the public servant whose order has been disobeyed." Similarly in the Bombay ruling it was laid down that the require ments of section 195 (1) are not abrogated by making the offence cognizable and non‑bailable. Again, the above quoted views are re‑inforced by another ruling reported as 1927 Cal. 721 (723) where also it was observed that "by entering the charge in the office diary or preparing the charge‑sheet no criminal proceedings are instituted, the acts being really routine and administrative. It is therefore evident that absence of complaint disables the magistrate to take cognizance of the offence in question and so the orders of the learned magistrate cannot be supported on any ground whatsoever, I may note that the Allahabad ruling referred to above was dissented from in Crown v, Wazir Muhammad (P L D 1953 Pesh. 21). Regarding the Madras ruling, referred to by the learned Govern ment Advocate, I may say that the line of reasoning adopted by the learned judges is almost the same as has already been discussed in connection with Allahabad ruling. I am afraid, with due defer ence to the learned judges, 1 cannot agree with their views for the simple reason that a police report does not fall within the defini tion of `complaint'. In no judgment, could Khan Mustafa Nawaz Khan take cognizance of an offence under section 188 on a police report. That being so, all his orders referred to above are bad in law and vitiated. Needless to add that section 537, Cr. P. C. is not meant to cover a case of complete absence of jurisdiction of the magistrate concerned. Hence in my opinion, the Government Notification No. 27 of 3rd June 1947 (Bahawalpur Government did not abrogate the requirements of the provision of section 195 (1), Cr. P. C. My answer to question No. 1 of the reference is that the said notification did not alter the position and it was incum bent on the public servant concerned whose order had been viola ted to prefer a complaint as provided in section 195 (1), Cr. P. C. It has already been discussed above that the word complaint occurring in section 195 has the same meaning as defined in section 4 (1) (h). It is difficult to hold that the same word which had been defined in the Code in express and clear terms should have a different meaning while used in section 195 (1). The latest authority on the point has already been referred to above namely Crown v. Wazir Muhammad (Supra). It is therefore clear that my answer to question No. 2 is that the word complaint in section 195 (1), means a complaint as defined in section 4 (1) (h), Cr. P. C. Regarding question No. 3 it has been tenaciously contended by the learned Government Advocate that the persons affected by the order sought to be revised were well‑to‑do and educated people and have deliberately refrained from availing themselves of the right of appeal or revision and that therefore the High Court should not exercise its revisionary powers. Our attention has been drawn to section 439 (5) which lays down that "where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of party who could have appealed." It is pointed out by the learned Crown counsel that the person involved in the Revision Petition No. 47 did not prefer any appeal or revision and therefore Mr. Farzand Ali had no locus stand! to argue the case of those persons who have not considered it worth while to file any appeal or revision. I may point out that the words `at the instance of the party' occurring in clause 5 of section 439 are very important inasmuch as they connote that no proceeding by way of revision shall be entertained at the instance of the party who could have appealed but had failed to do so. It follows that the High Court is not debarred from entertaining revision at the instance of the third party. Reference in this connection, may be made to 1932 Lahore 364, 559 and 613, where it was held that "it is not a question of any right of the accused nor the locus stand! of the High Court Bar Association but the High Court itself has power in any case in which case its attention has been drawn in any manner whatsoever to interfere in the interests of law and justice. "The same view was expressed in 1931 Bombay

140. The plain reading of section 439 (1) clearly shows that the High Court can exercise revisional powers in cases or proceedings the record of which has been called for or which has been reported for order or which otherwise comes to its knowledge. The wording "which otherwise comes to its knowledge" are very wide and irrespective of the source of knowledge the High Court can interfere in revision in any case at any stage. There is nothing to warrant that the wordings referred to above have restricted meaning. The restric tion mentioned in clause 5, section 439 only blocks the revision proceedings at the instance of the party who did not appeal but does not preclude any other person from applying and bringing the illegality or irregularity of a subordinate Court to the notice of the High Court. Mr. Farzand Ali has not filed the petition at the instance of those persons who did not file an appeal or revision. He has simply brought to the notice of the High Court that the trial magistrate has committed an illegality which justified the exercise of the revisional powers of the High Court under section

439. In my judgment the High Court can interfere in any case which has come to its knowledge through any source whatsoever. In this con nection reference may be made to 1941 Lahore 324, where Skemp, J made the following observation :‑ "It is the duty of the High Court to see, in any case which may be brought to its notice, that the conviction is in accordance with law, and the sentence not excessive. Consequently, even when the convict does not contest his conviction an application against that conviction under section 439 on behalf of the Bar Association can be entertained by the High Court. The Bar Association would be doing a public service by bringing to the notice of the High Court instances where the sentence is excessive". It may be noted that to counteract the above contention of Mr. Farzand Ali, the learned Government Advocate cited 1925 Sind 206, 1932 Sind 211 and 1933 Cal.

360. I however find that all these authorities are not in point. In 1925 Sind 206 the petition for revision was filed by the very person who could appeal and having failed to avail of that right he came on revision. It was accordingly held that `the competence of an appeal excludes the right to move for revision'. Similarly in 1932 Sind 211, the petitioner‑a pleader‑was the father of the accused. The learned judges remarked that he was appealing without power‑of‑attorney and without any ostensible instructions. They therefore declined to interfere in revision. Regarding the other ruling 1933 Cal. 360 it may be stated that the learned judge rejected the reason mostly on merits and it was only in the end that they merely stated that they were not willing to entertain an application for reduction of sentences at the instance of the third party, the convicted persons not having seen fit to appeal. It is therefore evident that the learned judges were influenced mostly by the strength of the prosecution case and not by the fact that the petitioner himself had not applied. So far as the present case is concerned the High Court Bar Association, Bahawalpur was justified in bringing to the notice of the High Court that the: illegality committed by the trial Court was of such a serious type that its orders were null and void. I therefore find myself in respectful agreement with the ruling referred to by Mr. Farzand Ali in support of his stand. The answer to the third question is in the affirmative. It has been contended by the learned Government Advocate on the basis of 1924 Mad. 896, and 1928 Pat. 480 that the High Court should not revise an order the period of operation of which has already expired. It has already been stated in the beginning that the present order under section 144 ,was promulgated for one month and now the period of operation has come to end. Both authorities referred to above do not deal with the point in an exhaustive way but have confined themselves by merely stating that it would be waste of time to adjudicate and annul an order which has long ceased to be in force. The laconic judgments referred to above do not help us much in finding out the reasoning which prevented the learned judges from interfering with an order under section 144 the operation of which had expired. On the other hand there are many reported cases such as 1935 Lahore 679, 1940 Bombay 42 and 1927 Lahore 430 which lay down that the High Court has the power to interfere in revision even after the order under section 144 sought to be revised has been cancelled. 7 here is therefore preponderance of opinion favouring the view that it is open to the High Court to adjudicate as to the propriety of the order and if it thinks fit that an order ought never to have been made to vacate it although before that action can be taken the order may have ceased to be in operation. I am therefore of the view that the High Court is competent to revise an order irrespective of the fact whether or not its period of operation has expired. ABDUL RASHID, J.‑I agree. FAIZ MUHAMMAD, C. J.‑I agree with the conclusions arrived at by my brother A. Hamid, J. As a result of findings given in the above judgment revision petitions Nos. 47, 48 and 49 are accepted and the petitioners stand discharged. If they or any of them is still in jail undergoing the sentence they or he as the case may be, shall be forthwith released. A. H. Petition accepted.