THE STAE Versus MUHAMMAD USMAN

The first respondent in this case Muhammad Usman filed a complaint :against the remaining respondents in the Court of the Additional District ‑Magistrate, Dadu for offences punishable under sections 392, 384. 406 and 202 of the Penal Code and this complaint was forwarded by the learned Additional District Magistrate to the Sub‑Divisional Magistrate, Dadu for disposal according to law. The Sub‑Divisional Magistrate after having examined the complainant ordered a preliminary inquiry to be held and, .upon the next hearing, he examined one witness but although other witnesses were present then passed an order in these terms: "Forwarded to the D. S. P., Dadu for inquiry and report." Against this order the complainant :applied in revision to the Court of Session and the learned Sessions Judge, being of the view that the learned Magistrate having ordered and even .commenced a preliminary inquiry himself could not refer the complaint to the police for investigation or inquiry, has, therefore, made a reference to ‑this Court recommending that this order be set aside.

2. In order to appreciate the question involved and the contention which has been put forward before me by the learned Advocate‑General, Tit is necessary I think to examine the provisions of the Criminal Procedure Code which provide for the cognizance of offences and the manner in which, :in the case of complaint, a Magistrate is required by the Code to proceed. Cognizance is taken under the Code of an offence by reason of the power vested in Magistrates under section 190 of the Code subsection (l) of which Treads thus :‑

"190. (1) Except as hereinafter provided, any District Magistrate or the Sub‑Divisional Magistrate, and any other Magistrate specially em powered in this behalf, may take cognizance of any offences‑‑

(a) upon receiving a complaint of facts which constitute such offence ;

(b) upon a report in writing of such facts made by any police officer :;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such. offence has been committed."

Where the Magistrate taking cognizance is a District Magistrate, he may, thereafter transfer the case for section 192(1) provides "Any District Magistrate or Sub‑Divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial to any Magistrate subordinate to him". In the present instance the case was transferred by the District Magistrate and this, as the language of section 192 makes plain, he could only do after he had taken cognizance. The very fact, therefore, that he transferred the case shows that the District Magistrate had taken cognizance. I emphasize this for the learned Sessions Judge appears to be of the view that it was the Sub‑Divisional Magistrate who took cognizance in this case.

3. Section 200 then requires that the very first step that the Magistrate: shall take will be to examine the complainant on oath which the Sub-Divisional Magistrate in the present case did. Section 202 then authorises, the Magistrate to postpone the issue of process and in the meantime to use: other means for the purpose of ascertaining the truth of the complaint. The language in which this power is conferred is as follows :‑

"202.‑(1) Any Magistrate, on receipt of a complaint of an offence of' which he is authorised to take cognizance, or which has been trans ferred to him under section 192, may, if he thinks fit, for reason to be recorded in writing, postpone the issue of process for compelling, the attendance of the person complained against, and either inquire into, the case himself, or, if he is a Magistrate other than a Magistrate. of the Third Class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such. other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint :

Provided that, save as the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on.. oath under the provisions of section 200."

4. Three courses are then open to the Magistrate. He may hold the inquiry himself or, if he is a Magistrate other than a Magistrate of the Third Class, direct an inquiry to be held by a Magistrate subordinate to him or he may have the inquiry held by a police officer. It will be noticed that, all these three are cases of inquiry and while in the first case the Magistrate will of course at the conclusion of inquiry decide for himself whether process be issued or not in the other two cases also the power to decide whether process be issued is still reserved to himself. It is plain that it is not open to the Magistrate who has been asked to make an inquiry himself to issue process nor may the police officer instead of submitting a. report to the Magistrate himself take further action.

5. In the present case clearly the Magistrate chose the first alternative of holding an inquiry himself but has been changed his mind and ordered the police to hold it. Whether or not this was justified on the facts of the present case is a different matter; for the moment I am only examining the legality‑of his so doing. That question really amounts to asking whether each of the three possible courses of action that the Magistrate has under section 202 are mutually exclusive or may be resorted to by the Magistrate one after the other or even concurrently. While no doubt in the large majority of cases a Magistrate would take only one such course, I find it. impossible as a matter of law to say that having chosen one he is debarred] from adopting any of the others. The learned Advocate‑General was strongly of the view that so long as the Magistrate keeps to himself the authority of deciding whether process be issued or not he was free to use either a magisterial or a police agency to examine the matter so as to inform his own mind. I think there is substance in the contention. All these powers have been conferred upon the Magistrate and I see nothing in the provisions of the law which compels him to choose between them. Procedural laws are intended to facilitate trial and the ascertainment of truth and generally a procedure must be regarded as permissible, if not without authority and if not prohibited by the Code itself.

6. Reliance was placed by the learned Sessions Judge upon a case of" the Dacca High Court reported as Aziz‑ur‑Rahman v. The State (P L D 1960 Dacca 1054). The facts of this case were somewhat peculiar. Two complaints were filed before ‑a Magistrate and in each of them he examined the complainant and then passed these orders :‑

"Examined the complainant on S. A. This is the Patiya incident which took place on 6‑2‑1958 which is being investigated into by the police. Send this case also to Mr. M. Haque, D. S. P., D. I. B., for the investigation and report. To 4‑3‑1958.

Examined the complainant on S. A. S. P. Chittagong will please hold; the investigation or get the case investigated by any responsible officer and take necessary action registering a case."

In each of these cases, therefore, the Magistrate took cognizance and the language of the orders makes it plain that the Magistrate was ordering the police not merely to report to him but to register a case. There was thus an abdication of authority by the Magistrate altogether. Indeed as the learned Judge himself observes this was a "Hybrid Order", inasmuch as having ordered an investigation, he then went on to order the police to register a case. It is I think this aspect of the matter which pursuaded the learned Judge to hold that the order was illegal and the following passage from the judgment makes this plain:

"I respectfully agree with the view expressed by Das, J., in the last mentioned case and I myself am of the opinion that in the present. case the Magistrate concerned wholly misconceived the scope of his powers after he had examined the complainant on solemn affirmation which could only be done under section 200 of the Code of Criminal Procedure. His Hybrid Order, therefore, of the 15th February 1958, ordering an investigation, presumably under section 202, and again directing the Superintendent of Police to investigate after registering a case, is an order which cannot be supported by any provision of the Code of Criminal Procedure. Indeed I do not think that the Magistrate has any competence at all to direct the police to register, a case. The furthest that the decision relied upon by the learned Advocate appearing for the complainant goes to show is that the Magistrate can treat the complaint under section 202 of the Code of Criminal Procedure as a first information report and start a case on the basis thereof or that the powers of the police to investigate under section 156(1) are independent of and not controlled by the provisions of section 202 of the said Code. Thus in spite of an order for investigation, the police may yet investigate under section 156 (1) of the said Code."

7. This case I think, is therefore, clearly distinguishable.

8. Another case decided by Mr. Justice Waheeduddin, while still a High ,Court Judge, has been brought to my notice and is reported as Ibrahim v. Mitho (P L D 1969 Kar. 381). Here again the situation was entirely different. The Magistrate had forwarded the complaint to the police for investigation and the police re ported that the case was a false one. Refusing to accept this report, the Magis trate nevertheless issued process against the accused and the argument before the High Court that the Magistrate was bound to accept the report and this was repelled. The case is really is authority, therefore, for the proposition that where a Magistrate sends the case to the police for investigation he still is in :command of the case and may issue process or refuse to issue process as he thinks fit, Incidentally it might be noticed that even after the police report was submitted to the Magistrate, he himself examined further witnesses before issuing process. Clearly, therefore, both a report by the police and an inquiry before himself was considered before process was issued. Some support at least, I think, is given by this case to my view that the various courses of action provided for under section 202 are not mutually exclusive.

9. I have, therefore, come to the conclusion that the order of the learned Magistrate was not in violation of any provision of law. Neverthe less, as the learned Advocate‑General himself concedes. the order itself does not seem to be proper. The Magistrate had already decided upon a preliminary inquiry by himself and that inquiry had proceeded only to the extent of one witness being examined when he suddenly changed his mind. There may of course have been good reasons for so doing but if so he should have stated them. In these circumstances I set aside the order leaving it open to the Magistrate to pass a similar order if he thinks that the circumstances of the case warrant it but, in that case, he must state his reasons for so doing. .

K. B. A. Reference answered.