HOT KHAN and 3 others vs THE STATE and another
This criminal miscellaneous application under section 561-A of the Code of Criminal Procedure 1898 was filed by the applicants for the quashment of an order passed by the Judicial Magistrate, whereby the Magistrate refused to accept a police report submitted in "B" Class and instead took cognizance and proceeded with the matter arising out of an FIR registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. The core legal question was whether a Magistrate is bound to accept a subsequent police investigation report recommending disposal of the case in "B" Class after a challan had already been submitted and cognizance taken, and whether the Magistrate's order refusing such report was illegal. The Sindh High Court held that a Magistrate is not obliged to follow the opinion of police officials and possesses the independent power to examine evidence and decline a "B" Class report. The Court ruled that once a matter is submitted to a competent court, subsequent re-investigation without the Magistrate's permission is incompetent, and dismissed the application, noting that the applicants could seek relief under section 249-A or 265-K of the Code of Criminal Procedure 1898 before the trial court.
- Whether a Magistrate is bound to follow the opinion of a police report recommending disposal of a case in "B" Class?
- Can a subsequent police investigation be conducted without the permission of the competent Magistrate after a challan or report has already been submitted to the court?
- Does a Magistrate exceed jurisdiction by taking cognizance and refusing to accept a subsequent police report recommending "B" Class disposal?
- What is the appropriate remedy for an accused when a Magistrate refuses to accept a police report recommending disposal of the case?
- Section 561-A, Code of Criminal Procedure 1898
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 249-A, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
ORDER
1. 'ARSHAD NOOR KHAN, J.---By this application under section 561-A, Cr.P.C. The applicants have prayed for quashment of the order dated 23-10-2008 passed by the learned IInd Civil Judge and Judicial Magistrate, Bhirya in Crime No,57 of 2008 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 of Police Station, Tharu Shah, District Jaushahro Feroze.
2. 'The facts leading to the present application in brief are that the respondent No,1 lodged F.I.R.
3. Against the applicants under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for having committed dacoity/theft at his residence. After Registration of the F.I.R proper investigation was conducted and Challan was submitted in Court. The applicants did not satisfy with the investigation and filed Constitutional Petition before this Court for transfer of the investigation vide Constitutional Petition No,355 of 2008, which was disposed of on 2-6-2008 with the observation that the petitioner may approach to the concerned police for investigation of the crime. After disposal of the petition, the applicants filed application before the D.I.G. For transfer of the investigation, which was transferred to C.I.A., Sukkur. The C.I.A., Sukkur after investigation of the crime submitted report praying therein for disposal of the F.I.R. In "B" Class. The learned Magistrate did not concede the report and ordered to proceed with the matter; hence this application.
4. 'I have heard Mr. Sardar Akber F. Ujjan, learned counsel for the applicants, Mr. Muhammad Hamza Buriro, learned counsel for t he respondents and Mr. Imtiaz Ali Soomro, learned Assistant A.G. For the State.
5. The learned counsel for the applicants vehemently contended that the applicants lodged Crime No,2 of 2008 and Crime No,4 of 2008 against the relatives of the respondent No,1 and the respondent No,1 as counter-blast has filed the present F.I.R. No,57 of 2008 and in investigation conducted by independent police official, the said F.I.R. Has been proved false as such learned Magistrate was not competent to take further proceedings after receipt of the report from the police authorities to whom the investigation was entrusted. He further contended that the order passed by the Magistrate thereby taking cognizance of the matter, is illegal and beyond the scope of evidence available on record, as such the learned Magistrate exceeded from his powers while taking cognizance of the matter and the report submitted by the independent police official, may be given consideration and the F.I.R. May be disposed of in "B" Class.
6. 'The learned counsel for the respondent No,1 vehemently contended that the order passed by learned Magistrate is perfect and speaking order and, in case, if the applicants have any grievance they may apply before the learned trial Court under section 265-K, Cr.P.C. Or under section 249-A, Cr.P.C. According to him, the offence committed by the applicants was an independent offence and the respondent has no concern with the offence committed by his relative against the applicants, for which, the independent F.I.Rs, were lodged by them inter se and that the Magistrate was not bound to concur with the report submitted by the police, as such the learned trial Court rightly refuses to accept the subsequent report for its approval in "B" Class. According to him, the charge has already been framed and the matter is fixed for evidence since last 2/3 hearings before the trial Court, as such at this stage of the proceedings, the order passed by Magistrate, could not be set aside.
7. 'The learned Assistant Advocate-General for the State adopted the arguments advanced by the learned counsel for the respondent No, 1.
8. 'I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
9. 'The main thrust of the learned counsel for the applicants is that the relative of the respondent committed offence against the applicant, therefore, F.I.R. Vide Crimes Nos.2 and 4 of 2008 were lodged against them and respondent No,1, as counterblast, has lodged the F.I.R. No,57 of 2008 just to extend benefit to his relative. The contention advanced by the learned counsel for the applicants, seems not to be attractive or even persuasive, for the reason that the offence if any committed by the relative of the respondent, it could not be said that the respondent No,1 is in league with his relative in those offences, which they have allegedly committed. In absence of any allegation regarding league of the respondent No,1 with his relative in commission of that offence, it could not be said that the respondent No,1 just to extend benefit to his relative, has falsely lodged the F.I.R. In Crime No,57 of 2008. The F.I.R. Lodged by the respondent No,1 is an independent F.I.R.
10. Wherein specific allegations and role has been attributed which requires thorough probe and enquiry, for which the learned Magistrate took the cognizance of the same wherein the charge has also been framed against the present, applicants.
11. 'The transfer of the investigation by the police official through the other police official could not be taken into consideration for the reason that once the matter has been submitted before the competent Court Without the permission of the competent Magistrate, the subsequent investigation could not be conducted. In the present case the report was already submitted before the Magistrate, therefore, the transfer of the investigation by the police official in my humble opinion, was not competent. Even otherwise the Magistrate is not obliged to follow the opinion of the police official and he has all the powers to examine the evidence brought before him while submitting the report in "B" or "C" Class and if from the report submitted by the police for disposal of the matter, in "B" or "C" Class, the Magistrate has powers not to accept the said report and could pass an appropriate lawful order. The order passed by the learned Magistrate, therefore, seems not to be illegal or suffers from any infirmity. The application has therefore no merit and is hereby dismissed summarily with direction to the learned trial Court to record evidence to complainant and his witnesses within a period of two months from the date of receipt of this order and thereafter the applicants are at liberty to move before the trial Court under section 249-A, Cr.P.C. Or under section 265-K, Cr.P.C. Because the learned trial Court and the learned Court will dispose of that application in accordance with the law.