RAJJAN Versus NOOR MUHAMMAD

The petitioners have moved a petition under section 561‑A, Cr.P.C. for quashment of the proceeding pending before the learned Additional Sessions Judge, Bahawalpur, from 28‑10‑1985 onwards on account of the non‑compliance and violation of the mandatory provisions of section 191, Cr.P.C.

2. The brief facts of this case are that a case was registered against certain accused under section 452/325/368/148 read with section 149, P.P.C. and section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979. When the challan was submitted, all the petitioners were placed in column No.2 of the challan. Subsequently, the learned Additional Sessions Judge, Bahawalpur, who tried the other accused, summoned all the petitioners.

3. It has been contended that the learned Additional Sessions Judge had taken cognizance of this case under section 190, para. 1, clause (c), Cr.P.C. and under section 191, Cr.P.C. he should have asked option of the petitioners whether they wanted to get the case tried by the said Court or by some other forum. The comments of the learned Additional Sessions Judge, Bahawalpur, were obtained, who stated that he did not specifically question the petitioners to select the forum of their choice, but there was an implied consent on their part to continue the proceedings.

4. The learned State counsel has represented that the cognizance of the offence taken by the learned Additional Sessions Judge was one under section 190, para. 1, clause (b), Cr.P.C. and it does not fall under section 190, para. 1, clause (c), Cr.P.C. Section 100 and section 191 Cr.P.C. may be reproduced for the facility of reference---

"Section 190(1).‑‑ Except as hereinafter provided, (any Judicial Magistrate by the Provincial Government on the recommendation of High Court) specially empowerd in this behalf, may take cognizance of any offence

(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, upon his oar knowledge or suspicion that such offence has been committed.

(2) The Provincial Government (may on the recommendation of High Court empower any Judicial Magistrate) to take cognizance cinder subsection (1) clause (a) or clause (b) of offences for which he may try or send to the court of sessions for trial.

(3) 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 Court of Session for trial."

"Section 191. When a Magistrate takes cognizance of an offence under subsection (1), clause (c) of the preceding section the accused shall before any evidence is taken be informed that he is entitled to have the case tried by another Court and if the accused or any of the accused if there be more than one, objects to being tried by such Magistrate the case shall, instead of being tried by such Magistrate, be sent to the Court of Session or transferred to another Magistrate."

Under para. 1 clause (c) of section 190, Cr.P.C., such cases are to be taken cognizance of when the Court receives an information from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed.

5. The instant case does not fall under section 190 para. 1 clause (c), Cr.P.C., because where cognizance is taken by a Court of a case on the basis of a negative report under section 173 of the Code, such cognizance is obviously taken on the police report and not upon his own knowledge or suspicion. Furthermore, the opinion of a Police Officer submitting a report is not binding on the Sessions Judge. The Court taking cognizance of the offence becomes seized of entire case and cognizance extends not only to person against whom challan has been submitted but to other persons as well who might appear implicated therein. The Court is competent to summon persons mentioned m column No.2 of the challan submitted by the police and it shall be deemed that the Court had taken A cognizance on a report in writing of such facts made by the Police Officer and the case falls under section 190 para. 1 clause (b), Cr.P.C. and not under section 190 para. 1 clause (c), Cr.P.C. The same principle was enunciated in Muhammad Haneef and another v. The State 1979 P Cr. L J 1078, Qurban Ali v. Punhoon and 2 others 1982 P Cr. L J 52 and Ali Mardan v. The State 1986 P Cr. L J 1206. In this manner, there was no necessity to adhere to the provisions embodied in section 191, Cr.P.C.

6. In the light of the above observations, the impugned proceedings are not liable to be quashed. I, therefore, dismiss this petition.

H.B.T./A‑540/L Petition dismissed.