Mst. INAYATAN KHATOON Versus MUHAMMAD RAMZAN

AMIR HANI MUSLIM, J.--- This appeal with leave of the Court is directed against the order dated 31-5-2011, passed by learned Single Judge of the High Court of Sindh, Circuit Court Larkana, whereby it has allowed the Criminal Revision filed by the respondents against the appellants holding therein that trial Court has wrongly taken cognizance in entertaining the complaint without following procedure provided under section 200, Cr.P.C.

2. The facts as they appear from the record are that the appellants have filed a Complaint No.320 of 2010 under sections 3, 4, 7 and 8 of the Illegal Dispossession Act, 2005 (hereinafter referred to as "the Act") before the Sessions Court, Jacobabad, claiming therein that they were forcibly dispossessed by the respondents and prayed for restoration of possession of the premises in dispute to them. The complaint on transfer was assigned to II Additional District Judge, Jacobabad, for disposal, who after calling reports from the Mukhtiarkar, City Surveyor and the concerned SHO in term of Section 4 of the Act, took cognizance and issued bailable warrant against the respondents. The respondents put in appearance before the trial Court which after framing of the charge, examined appellants Nos.1 and 2 in Court.

3. In the intervening period, the respondents filed Criminal Revision Application before the High Court of Sindh at Circuit Court Larkana challenging the order of the trial Court, inter alia, on the ground that it has wrongly assumed jurisdiction. The record further reveals that notices were issued by the learned High Court but except appellant No.1 others were not served with the notices. The learned Single Judge, vide impugned order dated 31-5-2011 has allowed the Criminal Revision Application, inter alia, on the ground that the trial Court has wrongly taken cognizance on 13-12-2010 without following procedure provided under section 200, Cr.P.C. as the complaint was not examined by the trial Court before taking cognizance, which according to the learned Judge was a mandatory requirement of the law and that a complaint by more than one person is against the provision of section 200, Cr.P.C.

4. The learned Advocate Supreme Court for the appellants has submitted that the procedure provided for private Complaint under section 200, Cr.P.C. would be inapplicable in the case in hand as the provisions of Code of Criminal Procedure would be attracted only if no specific provision is provided under the Act, which is a Special Law and has overriding effect.

5. The learned Advocate-General, Sindh, did not support the impugned Order and concedes that provisions of Code of Criminal Procedure would be inapplicable to the proceedings initiated under the Act. However, Mr. A.S.K. Ghori, learned Advocate-on-Record for the respondent No.1 has supported the impugned order though he did not urge any ground in support of his contention.

6. We have heard the learned Advocate Supreme Court for the parties and the Advocate-General and have perused the record. Section 3 of the Act provides that any "Occupier" and or "Owner" as defined in section 2 subsections (c) and (d) respectively, illegally and or forcibly dispossessed of the property can approach the Sessions Court by filing a Complaint in terms of section 5 of the Act. Section 3 of the Act authorizes the Court trying the accused to award punishment of imprisonment up to 10 years with fine with further power to order payment of compensation to the victim in terms of section 544-A, Cr.P.C. section 4 of the Act excludes the jurisdiction of other Courts constituted under Cr.P.C. from taking cognizance against an accused who contravenes the provisions of section 3(1) of the Act. Upon receipt of the complaint, the Court may direct the Officer Incharge of the Police Station to investigate the matter and submit report within 15 days in terms of section 5(1) of the Act.

7. On receipt of the report, the Court on taking cognizance shall proceed with the trial and decide the case within sixty days. During the proceedings, the Court has the power to order arrest of the accused persons in terms of section 3(2) and or grant interim relief as provided under section 7 of the Act, besides ordering delivery of possession in terms of section 8 of the Act to the owner and or occupier on conclusion of trial. Keeping in view the aforesaid consideration, the legislature has provided independent procedure in terms of section 5 of the Act to try the cases. The Act is a special enactment promulgated to discourage the land grabbers and to protect the right of owners and the lawful occupants of the property as against the unauthorized and illegal occupants. All cases of illegal occupants without any distinction would be covered by the Act.

8. The learned single Judge of the High Court has not cared to open the statute book before recording finding in the impugned order. The trial of an accused under the Act cannot be equated as trial in a complaint case under section 190, Cr.P.C. Section 5 of the Act provides that the court may order Incharge of the Police Station to investigate the matter and report. The Act itself is a Special Law and overrides the provisions of Code of Criminal Procedure in terms of section 4 ibid. In fact complaint under the Act could be equated as complaint under section 154, Cr.P.C. whereas report under section 5(1) could be equated as report under section 173, Cr.P.C. The court on perusal of such report and other material could take cognizance as provided under section 190, Cr.P.C. but in no way the complaint under section 5(1) can be equated as a private complaint to be processed under section 200, Cr.P.C. before a Magistrate.

9. We have also notice that the learned Judge has shown haste in deciding the revision. Except the appellant No.1, no other person was served with the notice of the criminal revision. Further more, the learned Single Judge has passed stricture against the Presiding Officer of the trial Court. For brevity sake, we reproduce the relevant portion of the impugned order, which reads as follows:--

"Perusal of Complaint No.320 of 2010 reveals that there are six complaints in the case which is against the provisions of section 200, Cr.P.C. The learned trial Court i.e. the 2nd Additional Sessions Judge, (Mr. Aftab Ahmed) seems to be unaware about the provisions of Criminal Procedure Code, as the learned trial Judge has admitted such direct complaint and passed the impugned order dated 13-12-2010 and brought the case on file, which has caused the miscarriage of justice to the applicants. Learned Judge has not applied his judicious mind and only acted at the whims and wishes of the complainant. It seems that the learned Judge (Mr. Aftab Ahmed) was influenced by some extraneous considerations and he has closed his eyes and acted in a manner which is not expected by an Additional Sessions Judge. Only on this score, the impugned judgment is not sustainable under the law, which is set aside and compliant is dismissed."

10. In the first place, the learned Single Judge himself does not appears to be acquainted with the principles of criminal law and has recorded findings that examination of complainant under section 200, Cr.P.C. was mandatory before taking cognizance under the Act, which findings are contrary to the language of sections 2, 3, 4 and 5 of the Act.

11. The learned single Judge mis-directed himself by further holding that the word "owner or occupier" defined under the Act does not include more than one owner and or occupier. In other words, if the property is jointly owned and or jointly occupied by the complainants they cannot approach the Sessions Judge by filing complaint under section 5 of the Act. We, with great respect, do not agree with this interpretation of the learned Judge. Under the General Clauses Act a plural can be read as singular and vice versa. Owner and or occupier would include owners and or occupiers and more than one owner or more than one occupier, in law, are entitled to approach the Sessions Judge in terms of Section 5(1) for filing complaint under the Act.

12. We have noticed that the learned Single Judge, is in a habit of passing strictures against the subordinate judicial officers while hearing the matters. In this regard, this Court on 20-7-2011 in Criminal Petition No.46-K of 2011; and on 20-7-2011 in Criminal Petition for Leave to Appeal No.65-K of 2011, as one of us (Justice Amir Hani Muslim) was the author of the said judgments, have already expunged strictures passed by the learned Single Judge against the Judicial Officers and in the latter case copy of the order was communicated to the learned Judge as well as the learned Chief Justice, Sindh High Court for his perusal. The relevant para in the said judgment is reproduced hereinafter:--

"5. We have noticed that the learned Judge has developed the practice of passing strictures against Judicial Officers without affording them opportunity to explain their position. The order passed by the same learned Judge of the High Court in another case was impugned in Criminal Petition for Leave to Appeal No.56-K of 2011, seeking expunction of remarks passed by him against the learned Additional District Judge, Larkana. On 7-7-2011 the said petition was fixed before the Bench comprising one of us as a member and notices were issued. Today, the said Petition was fixed before another Bench and we are informed that the Petition was allowed and the stricture passed by the same learned Judge of the High Court was expunged by the Bench holding therein that the stricture passed against Judicial Officer was uncalled for.

6. We do not encourage such practice of passing stricture against the Judicial officers, as this would not only shatter their confidence but also restrict their independence in discharging their duties besides it will adversely affect their performance. Additionally, a Judge of the High Court should restrain himself from passing strictures unless there is sufficient material against the Judicial Officers, which reflect that his order is tainted with malice and or was passed for extraneous consideration. In absence of such material stricture should not be passed without providing opportunity of hearing to the incumbent to explain his position."

13. Inspite of the orders of this Court, the learned Single Judge, in absence of material, has not restrained himself from passing the stricture against the learned ADJ. Such like strictures will have adverse affect on the working of the subordinate courts. The practice of passing stricture against judicial officer without affording him opportunity, to explain his point of view would destroy the institution. The order of taking cognizance by the trial Court for the aforesaid reasons was within the parameters of the Act and introducing procedure under the Code of Criminal Procedure for proceeding with a Private Complaint after examining the complaint under section 200, Cr.P.C. is completely foreign to the language of the Act.

14. We for the foregoing reasons allow the appeal and set aside the impugned order passed by the learned Single Judge and direct the Sessions Judge, Jacobabad, to decide the case between the parties under the Act after notice to the parties within one month from the date of communication of the order and report. Copy of this order be sent to the learned Judge and the Registrar, Sindh High Court for placing it before the learned Chief Justice, for perusal.

M.H./I-11/SC Case remanded.