OBEDAULLAH Versus THE STATE

1. Applicant Obaidullah son of Azizullah is facing proceedings under section 107/117, Cr.P.C. instituted in the Court of S.D.M., Garden, Karachi (South) by S.H.O., Police Station Nabi Bux, Karachi (South).

2. The police report came up before the learned S.D.M. on 21-11-1993 wherein it was mentioned that first party Shabbirul Hassan had moved an application in which it was stated that the present applicant wanted to take possession of the house of the first party by fraudulent means. The applicant was examined by the police who stated in his statement that the said house is his personal property arid that the same has been forcibly occupied by the first party. It was stated in the police report that in the circumstances, there was dispute between the parties over the said house and as such there was likelihood of commission of breach of peace.

3. On receipt of the police report, the learned S.D.M., Garden, passed the orders as under:--

4. "Register the case

5. (Sd.)

6. 21 1-1993."

7. The case diary of the same date shows that summons were issued to the opponent. Thereafter, the case came up for hearing on 30-11-1993 on which date the counsel for the applicant moved an application for condoning his (applicant's) absence and the case was adjourned to 21-12-1993. It is in these circumstances that the applicant has preferred the present application for quashment of the proceedings, on the ground that the mandatory provisions of section 112, Cr.P.C. have not been complied with.

8. I have heard Mr. Badrul Alam, Advocate for the applicant and Mr Habib-ur-Rasheed, learned counsel for the State.

9. Learned counsel for the applicant submitted that no order under section 112, Cr.P.C. was passed and, therefore, the very proceedings stood vitiated. He further submitted that the police report indicates names of two witnesses and out of them the first party is one witness and the other is the Investigating Officer. He has also relied upon Haji Ghulam Muhammad and others v. The State reported in 1982 PCr.LJ 777.

10. On the other hand the learned counsel for the State did not oppose this application on the ground that no order under section 112, Cr.P.C. was passed. The record and proceedings was also called by this Court in order to ascertain whether any order under section 112, Cr.P.C. has been passed or not. Admittedly, the order under section 112, Cr.P.C. was not passed by the learned S.D.M. after receiving the report from the S.H.O. concerned. Instead the learned S.D.M. issued process against the applicant- without having passed an order under section 112, Cr.P.C.

11. It may be mentioned that the scheme of sections in Chapter VIII of the Criminal Procedure Code indicates that on receipt of a complaint under sections 107/108/109 and 110, the learned S.D.M. is required to pass an order under section 112, Cr.P.C and if the person against whom such an order is passed is present in Court, the said order is to be read and explained by virtue of section 113, Cr.P.C. If the said person is not present in Court, in that event, the learned S.D. M. should issue summons for procuring the attendance of that person and if necessary he can even issue warrants for his arrest by virtue of section 114, Cr.P.C. Whatever may be the mode of process, it must be accompanied by a copy of the order passed under section 112, Cr.P.C. as provided by section 115, Cr.P.C. and such copy is required to be delivered to the person concerned. This is done for the purpose of informing the person proceeded against the substance of information: against him. It, therefore, follows if no order is passed under section 112,.,Cr.P.C., in that event if summons are issued for procuring the attendance of that person, he will not be having prior information about the complainant made against him. It will thus appear that an order under section 112, Cr.P.C. is a- mandatory requirement and has to be passed by the S. D. M. concerned immediately after receipt of the police report. In the present case the learned S.D.M. has not passed any order under section 112, Cr.P.C., and therefore, the entire proceedings stand vitiated and are illegal. In the reported case relied upon by the learned counsel for the applicant (1982 PCr.LJ 777) the position was exactly the same and this Court observed that the entire proceedings from the very start stand vitiated and are illegal and not in accordance with the provisions of Criminal Procedure Code, the proceedings were quashed.

12. In the aforesaid circumstances, it is obvious the summons issued by the learned S.D.M. for procuring the attendance of the applicant without first passing an order (sic) Court. Consequently, the proceeding pending against the applicant before the learned S.D.M. Garden is hereby quashed.

13. N.H.Q./0-27/K Proceeding quashed.