ASIF IQBAL vs Maulana MUHAMMAD AKRAM and 14 others
This matter concerns a revision petition challenging the dismissal of a private complaint by an Additional Sessions Judge. The core legal question was whether a Magistrate or trial court is legally obligated to record the statement of a complainant under Section 200 of the Code of Criminal Procedure 1898 upon the filing of a complaint. The Court held that the provisions of Section 200, Cr.P.C. are mandatory, requiring the court taking cognizance of an offence on a complaint to immediately examine the complainant upon oath. The Court found that the Additional Sessions Judge erred by failing to record the preliminary evidence as required by law. Consequently, the impugned order was set aside. The key principle laid down is that the examination of a complainant under Section 200, Code of Criminal Procedure 1898 is a mandatory procedural step for a court taking cognizance of an offence, and failure to perform this duty constitutes a legal error warranting the setting aside of the dismissal order.
- Is a Magistrate or trial court legally required to record the statement of a complainant under Section 200 of the Code of Criminal Procedure 1898 upon the filing of a complaint?
- Does the failure to record the preliminary evidence of a complainant under Section 200 of the Code of Criminal Procedure 1898 invalidate an order dismissing a complaint?
- Section 200, Code of Criminal Procedure 1898
- Section 192, Code of Criminal Procedure 1898
ORDER
' KHAWAJA MUHAMMAD SHARIF, J.--- In continuation of my order, dated 7-5-2007, learned counsel for the petitioner submits that complainant was hesitant to get the statement recorded; that it was mala fide of the petitionet who has been getting adjournments to argue the case and that no offence is made out; that from the bare perusal of complaint filed by the petitioner learned Additional Sessions Judge was right in dismissing the complaint. He has relied upon Abdul Wahab Khan v. Muhammad Nawaz and others 2000 SCMR 1904.
3. Learned Additional Advocate-General submits that learned Additional Sessions Judge was duty bound to record statement of the complainant as preliminary evidenced as required under section 200, Cr.P.C. That no stage has come for participation of the respondents. He further submits that petitioner had filed petition according to law.
3. Heard. I would like to reproduce section 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.
' Provides as follow:
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainantt 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 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 official duties.
(b) (Omitted by A.O., 1949 Schd.).
(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."
4. A bare perusal of above said section would show that learned Additional Sessions Judge was duty bound to record statement of the complainant. I have gone through the judgment 2000 SCMR page 1904 cited by learned counsel for the respondents. At page 1908 paragraph 2 it has been mentioned that learned trial Court at the time of complaint filed before him immediately recorded the statement of complainant as preliminary evidence so this authority in my considered opinion is against him.
5. After having heard learned counsel for the parties and going through the record, impugned order passed by learned Additional Sessions Judge is set aside. I remand the matter back to learned Additional Sessions Judge who had passed the impugned order but learned counsel for the petitioner submits that matter should be remanded back to the learned Sessions Judge, Khushab because learned Additional Sessions Judge has already given his view in this matter.
Learned Additional Advocate-General also supports the submission made by learned counsel for the petitioner. While remanding back the matter, in the interest of justice it is entrusted to the learned Sessions Judge, Khushab who will proceed with the complaint in accordance with law.