MUNAWAR KHAN Versus MUHAMMAD ISHAQUE

This is a revision petition by Raja Munawar Khan and two others against the order of the learned trial Magistrate sending a private complaint filed against them by Muhammad Ishaq, respondent No. 1, to the police for investigation under section 156(3), Cr. P. C. and against the submission of the challan by the police in the Court of the learned trial Magistrate.

2. The facts leading to the revision briefly are that on 2-6-1973, Muhammad Ishaq respondent No. 1, filed a private complaint against the petitioners under sections 420, 406, 468, 471 and 506 read with section 109, P. P. C. It was placed before Mr. Muhammad Saeed Sheikh, Ilaqa Magis trate, Lahore, who instead of recording the statement of the complainant, sent the complaint to the police for investigation under section 156(3), Cr. P. C. The police, after the completion of the investigation, filed a challan in the trial Court.

The complainant had also filed a civil suit against the petitioners on the same grounds. The petitioners filed an application (Cr. Misc. No. 172/Q of 1974) before this Court for the quashment of the criminal proceedings against them, and it was directed by me, vide by order dated 2-7-1974, that the criminal proceedings initiated against the petitioner s, through the private complaint filed by the complainant be stayed till the decision of the civil suit filed by him on the same facts.

The petitioners have now filed this petition contending that the afore mentioned criminal proceedings, including the order of the Magistrate on the private complaint, as well as the investigation and the filing of the challan by it, are liable to be quashed, on the ground that a private complaint having been filed before him, the learned trial Magistrate was bound to record the statement of the complainant and proceed in accordance with the provisions of Chapter XVI of Cr. P. C. and could not send the matter to the police for investigation under section 156(3), Cr. P. C., which is a provision in Chapter XIV, Cr. P. C. He relied strongly on Emperor v. Bikha Moti (A I R 1938 Sind 113) in support of the aforementioned contention.

3. In the first place the revision is liable to be dismissed on the simple ground that the petitioners could have taken this ground in their earlier application for quashment. In any case, the ground urged by the learned counsel for the petitioners is not legally correct. The question referred for decision to the Full Bench in Bikha Moris case was quite a different. That question has been stated at the very beginning of the reported judgment. It reads as follows:----

"Whether when a Magistrate has referred a complaint of an offence to the police for investigation under section 202, Cr. P. C., it is competent for the police to investigate the offence complained of independently of the Magistrate's directions and to send up the accused for trial for the offence complained of, upon a charge-sheet."

It would be noticed that in that case the learned Magistrate had referred a private complaint to the police under section 202, Cr. P. C. (and not under section 156(3), Cr. P. C.), and the point in issue was whether in spite of the fact that the matter had been referred to it under section 202, Cr. P. C., the police could start investigation under section 156(1), Cr. P. C. and file a challan under section 173, Cr. P. C. thus putting an end to the private com plaint and making it a police case.

But in the present case the Magistrate had admittedly referred the case to the police for investigation under section 156(3), Cr. P. C. and not under section 202, Cr. P. C. Therefore, the decision of the Full Bench in A I R 1938 Sind 113 is not applicable to the facts of the present case.

4. The question involved in the present case was dealt with in Azizur Rahman v. State (P L D 1960 Dacca 631) and it was held that if a Magistrate takes cognizance of a private complaint under section 200, Cr. P. C. by recording the statement of the complainant, he must thereafter proceed in accordance with the provisions of Chapter XVI of the Cr. P. C., i.e. under sections 202 and 204, Cr. P. C. and he cannot then refer the matter to the police under section 156(3), Cr. P. C. which lies in an altogether different Chapter. But he could, if he so chose, instead of recording the statements of the com plainants, send the case for investigation to the police under section 156(3), Cr. P. C. It will be useful to reproduce the relevant observations of the Court in that case for facility of reference:-----

"It thus appears that when a Magistrate receives a complaint and takes cognizance thereof under section 190(a) of the Code of Criminal Procedure and then examines the complainant under section 200, then the only enquiry or investigation that he can order is one under section 202 and not under section 156(3) of the Code. He may, if he wishes to direct the investigation under section 156(3) not take cognizance but send the complaint direct to the police for police investigation, but where he has examined the complainant and taken cognizance, the investigation can only be under section 202 and in those circumstances the submission of a -charge-sheet is without jurisdiction for there must then be a report to that Magistrate who must himself dispose of the complaint either under section 203 or 204 of the Code of Criminal Procedure."

The same view was taken in-----

(1) Badsha Mia and others v. The State P L D 1958 Dacca 598.

(2) R. R. Chari v. The State for Uttar Pradesh A I R 1951 S C 207.

(3) Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar A I R 1950 Cal. 437.

In Ghulam Ahmad v. State (P L D 1962 Lab. 280), this Court also took the view that where a Magistrate had himself taken cognizance of the case and recorded the statements of the complainant and his witnesses, the only course left open to him under the Law was to proceed with the trial of the complaint itself.

It follows, therefore, that where a learned Magistrate, as in the present case, has not taken cognizance of a private complaint by applying his mind to it for decision and has not recorded the statement of the complainant o his witnesses, it is open to him to send the case to the police for registration of a case, investigating the same and filing a challan if there is enough evidence.

6. In view of the above discussion, I find no force in the revision petition, which is accordingly dismissed.

K . B. A. Petition dismissed.