ALAM KHAN AND 12 OTHERS Versus KHAIRAT ALI

This petition assails the order dated 19‑10‑1986, passed by the learned Sessions Judge, Bhakkar, in respect of a complaint filed by respondent No.1 against the petitioners, under section 436/325/ 148/149, P.P.C.

2. The facts giving rise to the present petition, briefly stated, are that a criminal case under section 382/452/326/148/149, P.P.C. was registered on 23‑1‑1985 vide F.I.R. No.17 at Police Station Saddar Bhakkar against Respondent No.1 and others. Respondent No.1 (hereinafter referred to as the respondent) filed a Writ Petition before this Court seeking a direction to the S . H .O . Police Station Saddar Bhakkar that he' should register a case against the petitioners under section 436/ 325/ 148/ 149, P . P . C . but the said Writ Petition was dismissed by this Court. Subsequently, the respondent filed a private complaint in the Court of learned Sessions Judge, Bhakkar, and the learned Sessions Judge entrusted the said complaint to the Court of Mr. Ziaullah Khan Niazi, Civil Judge‑cum‑Magistrate Section 30, Bhakkar. The said learned Magistrate after recording the preliminary evidence, summoned the petitioners to stand trial for the offences under section 436/325/148/149, P.P.C. Mr. Ziaullah was succeeded by Sheikh Siraj Din Magistrate Section 30 Mianwali, Camp Bhakkar, The said learned Magistrate observed that the complaint was initially instituted before the wrong Court. It could not be entertained by the learned Sessions Judge and similarly the learned Civil Judge, exercising the powers of Magistrate Section 30, had no jurisdiction to take cognizance of a complaint under section 190 of the Code of Criminal Procedure and thus the subsequent proceedings were all without jurisdiction. He, therefore, referred the matter to the learned Sessions Judge for proper orders. The learned Sessions Judges passed the following order:‑

"The irregularity pointed out by the learned Judicial Magistrate Section 30 is of the nature of section 529(E), Cr. P.C. and in exercise of my powers under section 537, Cr. P.C. as there appears to be no failure of justice, they are not upset. The learned Magistrate should proceed in accordance with law. Parties shall appear there."

3. The offence punishable under section 436 P.P.C. is triable by a Court of Session and, therefore, a Magistrate Section 30, if duly empowered, could also take cognizance of such an offence. Under section 190(3), Cr.P.C., a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session, shall without recording any evidence, send the case to the Court of Session for trial. According to the provisions of section 193(1) ibid, no Court of Session can take cognizance of an offence as a Court of original jurisdiction unless the case has been sent to it under section 190(3), Cr.P.C. As already observed, one of the offences involved in the complaint in question was triable by the Court of Sessions but this case was not sent up to the learned Sessions Judge within the meaning of section 193(1), Cr. P.C. by a competent Magistrate under section 190(3), Cr. P.C. The learned Sessions Judge instead of taking cognizance of the complaint could, perhaps, send it for enquiry under section 202, Cr.P.C. to a Magistrate of competent jurisdiction.. But in the present case, the learned Sessions Judge entrusted the case to a Civil Judge, exercising the powers of Magistrate Section 30. The learned Civil Judge had no jurisdiction under section 190, Cr. P.C. to take cognizance of a complaint unless the same was sent to him by transfer. In this view of the matter, the proceedings by the learned Civil Judge, exercising the powers of Magistrate Section 30, culminating into the order whereby he summoned the petitioners to stand trial, are without jurisdiction.

In Shamshad Khan v. The State 1984 P Cr. L J 2370, it has been held by this Court that Civil Judges exercising the powers of Magistrate Section 30 have not been specially empowered to take cognizance under section 190(1), Cr.P.C. and, therefore, such a Magistrate is not competent to summon the accused in a complaint case after recording evidence.

In Abdul Waheed v. Amanullah and others P L D 1986 Lah. 81 in a case under section 302/307/326/148/149, P.P.C., the accused were found innocent by the police and were got discharged by the Court of Illaqa Magistrate. The complainant filed private complaint against the accused before the learned Sessions Judge directly who transferred it to Illaqa Magistrate without specifically directing to hold an enquiry under section 202, Cr.P.C. The Magistrate on conclusion of enquiry sent the case to the Sessions Judge for cognizance. It was held that enquiry was coram non judice and void and no action could be taken by the Sessions Judge against the accused on such enquiry and that the orders passed as a result of enquiry were nothing more than an abuse of process of Court. It was also observed that the orders were not cured by section 537, Cr.P.C.

In the present case, the learned Sessions Judge could only order the Magistrate to hold an enquiry under section 202, Cr. P.C, He could not entrust it to a Civil Judge, exercising the powers to Magistrate Section 30 for disposal. The said learned Magistrate had no jurisdiction to take cognizance of the complaint. The proceedings resorted to by the learned Civil Judge, exercising the powers of Magistrate Section 30, in the complaint in question are without jurisdiction. The shortcoming in the proceedings is not curable under section 537 Cr.P.C. The learned Sessions Judge has no power to cure such proceedings.

4. In the light of the foregoing conclusions, the under consideration petition is allowed. The impugned order passed by the learned Sessions Judge is set aside and the case is remanded to the learned Magistrate Section 30, Bhakkar, who stands duly notified under section 190, Cr.P.C. to take cognizance of such a case, to start proceedings de novo in accordance with law.

S.G.D./A‑280/L Order accordingly