Pakistan Case LawState Versus Senior Civil Judge (Criminal Division), Sahiwal
This constitutional petition challenged an order passed by the Senior Civil Judge (Criminal Division), Sahiwal, who had returned a police report submitted under Section 173 of the Code of Criminal Procedure 1898 regarding an electricity theft case under Section 462-I of the Pakistan Penal Code 1860. The core legal question was whether a Magistrate, upon receiving a police report for an offence requiring a specific complaint under Section 462-O of the Pakistan Penal Code 1860, is empowered to return the report to the prosecution or must instead facilitate the procurement of the necessary complaint before forwarding the case to the Court of Sessions. The Court held that the Magistrate acted illegally by returning the report. The ratio established is that when a report under Section 173 of the Code of Criminal Procedure 1898 is submitted for an offence triable by the Court of Sessions, the Magistrate must ensure the required complaint under Section 462-O of the Pakistan Penal Code 1860 is obtained, rather than returning the file, and then forward the matter to the trial court.
- Is a Magistrate empowered to return a police report submitted under Section 173 of the Code of Criminal Procedure 1898 solely because a required complaint under Section 462-O of the Pakistan Penal Code 1860 is missing?
- What is the correct procedure for a Magistrate when a police report for an offence under the Pakistan Penal Code 1860 is submitted without the mandatory complaint required by Section 462-O?
- Must a Magistrate forward a case to the Court of Sessions even if the police report is initially unaccompanied by the statutory complaint required for cognizance?
Order
Tanveer Ahmad Sheikh, J .--- Through this petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, an order dated 27.09.2024, passed by learned Senior Civil Judge, (Criminal Division), Sahiwal was assailed by State through Deputy Prosecutor General, Punjab, Multan.
2.According to the brief facts, a case FIR No. 794/2024, dated 07.06.2024, for offence under Section 462-I of P.P.C was registered with Police Station Yousafwala, District Sahiwal, under the authorship of Muhammad Sajid Mehmood, Sub-Divisional Officer, MEPCO, against respondent No.2 Touqeer Hussain alias Sain with the allegations that said respondent/accused was found committing the theft of electricity on 05.06.2024 by installing the iron clutch directly with the main terminal, which resulted into the loss amounting to Rs.50,000/- to the department.
Challan/report under Section 173 of Cr.P.C. was submitted in the above case, which was ordered to be returned to District Public Prosecutor mainly on the ground that it was not accompanied by complaint of an officer not below Grade 17, which was required as condition precedent under Section 462-O of P.P.C.
3.The learned Senior Civil Judge (Criminal Division), Sahiwal, did not forwarded the report under Section 173 of Cr.P.C. to the learned trial court (Sessions Court) and send the matter back to the District Public Prosecutor through the impugned order dated 27.09.2024.
4.In order to better appreciate the issue involved in the case, I think it appropriate to have a look of said provision of 462-O of P.P.C, as such the same is being reproduced below for the facility of reference:-
462-O. Cognizance. (1) The Court (Court of Sessions) shall try an offence punishable under this Chapter.
Offence under Section 462-I of P.P.C was triable by Court of Sessions. When report under Section 173 of Cr.P.C. regarding the said offence is submitted before the Magistrate under Section 190 of Cr.P.C. he is supposed to send the case to the Court of Session without recording any evidence under Section 190 (2) of Cr.P.C.
If the Magistrate finds that report under Section 173 of Cr.P.C. is not accompanied by complaint, as required by Section 462-O of P.P.C, he is supposed to ask the prosecution to procure the said complaint from concerned officer not below the rank of Grade 17 and then to forward the report to the learned trial court (Sessions Court) along with above complaint, because said provision of 462-O of P.P.C has always to be read in conjunction with Section 230 of Cr.P.C., which reads as under:-
230. Stay of proceedings if prosecution of offence in altered charge requires previous sanction. If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has already been obtained for a prosecution on the same facts as those on which the new or altered charge is founded.
Under the above provision of law when complaint or sanction of the Government, where it is required by the law, for taking cognizance by the Court has not been obtained, the court shall not proceed further unless the said complaint or sanction, as the case may be, has been obtained from the concerned quarter. If any reference in this regard is required, that can be had from a case reported as State of Karnataka and another v. Pastor Petitioner Raju (AIR 2006 Supreme Court 2825).
After adhering to the above said aspects of the matter, I am of the view that the course adopted by respondent No.1 (Senior Civil Judge, Criminal Division, Sahiwal) was not legal. His duty was only to procure the complaint through Prosecution Department in terms of Section 462-O of P.P.C and then to forward the matter to the learned trial Court (Court of Sessions). I, therefore, set aside the impugned order.
5.Prosecution is at liberty to resubmit the report under Section 173 of Cr.P.C. observing legal formalities and respondent No.1 (Senior Civil Judge, Criminal Division, Sahiwal) is directed to act strictly in accordance with law/observations rendered in this order.
6.Petition accepted.
JK/S-72/L Petition allowed.
Judges on this bench
- Tanveer Ahmad Sheikh49 judgments