ALLAH DAD and 7 others vs THE STATE
This criminal revision petition and accompanying application under section 561-A of the Code of Criminal Procedure 1898 were directed against an order passed by a Judicial Magistrate directing the Investigating Officer to challan the case before a competent court, contrary to a 'B' class disposal report. The core legal question concerned the maintainability of a criminal revision against a Magistrate's order under section 173 of the Code of Criminal Procedure 1898 and the exercise of inherent jurisdiction under section 561-A. The court noted that a Magistrate acting under section 173 does not act as an inferior criminal court whose order is revisable under sections 435 or 439, but that such an order is amenable to the inherent jurisdiction of the High Court under section 561-A if it constitutes an abuse of the process of the court. Pending a final decision on the maintainability and merits of the revision, the court suspended the operation of the impugned order in the interest of justice.
- Whether a criminal revision is maintainable against an order of a Magistrate passed under section 173 of the Code of Criminal Procedure 1898?
- Does a Magistrate acting under section 173 of the Code of Criminal Procedure 1898 act as a criminal court inferior to the Court of Session and the High Court?
- Can the High Court invoke its inherent jurisdiction under section 561-A of the Code of Criminal Procedure 1898 against an order passed by a Magistrate under section 173?
- Section 173, Code of Criminal Procedure 1898
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
ORDER
' A.R. FAROOQ PIRZADA, J.---Granted.
2. Granted subject to all just exceptions.
3. This criminal revision is directed against order, dated 24-9-2007, passed by learned Civil Judge and Judicial Magistrate-IV, Shikarpur, thereby directing the concerned I.O. To challan the case before the competent Court. Learned counsel has contended that during investigation the I.O. Had duly recorded the statements of the witnesses and disposed of the case under "B" class. He has also argued that there was no sufficient material to connect the applicant/accused with the case, and that the learned Magistrate did not apply his judicious mind, while passing the impugned order. Learned State Counsel states that he has not received the relevant papers, for the purpose of giving his opinion. Learned State Counsel is directed to obtain the relevant papers, to properly assist the Court. Issue notice to the I.O. To appear on next date of hearing, along with all the relevant papers. Adjourned to 30-10-2007.
4. By this application under section 561-A, Cr.P.C. a prayer is made for suspending the operation of impugned order, dated 24-9-2007, A passed by Civil Judge and Judicial Magistrate-IV, Shikarpur in F.I.R. No. 147 of 2007, P.S. New Faujdari Shikarpur, until the final disposal of present criminal revision before this Court. He has relied upon the order, dated 4-12-2006, passed by High Court of Sindh, Bench at Sukkur in C.P. No.D-924/06; the order, dated 6-6-2005, by High Court Bench at Sukkur in Criminal Miscellaneous Application No. 45 of 2005 and the order, dated 6-12-2002, by the High Court of Sindh, Karachi in Criminal Miscellaneous Application No. 197 of 2002, on the point of grant of stay in the identical proceedings. He has also cited the authority Sufi Abdul Qadir v. The State and others reported in 2000, PCr.LJ 520. However from the perusal of this authority (relevant pages 524 and 525), it reveals that the Magistrate while acting under section 173, Cr.P.C., does not act as a criminal Court inferior to the Court of Session and the High Court, and his order cannot be revised and modified under the provisions of sections 435, 439, Cr.P.C. But in that case it is amendable to the inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Provided the order amounts to abuse of process of Court. On this point the learned counsel would be required to satisfy this Court as to whether the criminal revision before this Court would be maintainable or not. However, since the learned counsel for applicants has argued that there is no sufficient material on record to incriminate the accused and the learned Magistrate did not apply his judicious mind to the facts and circumstances of the case, as such in the interest of justice, this application under section 561- A, Cr.P.C. Is allowed, and the operation of the impugned order, dated 24-9-2007, is suspended, till final decision in the present matter before this Court. Issue notice to I.O. And complainant.
Adjourned to 30-10-2007.