NASRULLAH vs THE STATE

This petition filed by Nasrullah son of Shahi Muhammad of Mulla Jan Killi, Tehsil and District Takht Bhai, under section 439, Cr.P.C. Read with section 561-A, Cr.P.C. Arises in the circumstances that Nasrullah accused alongwith others was charged under section 302/324/34, P.P.C. Vide F.I.R. No. 157 dated 2-4-1994 of Police Station Lund Khawar. He was released by the police after investigation, under section 169, Cr.P.C. When the case came up before the learned Additional Sessions Judge Takht Bhai, he directed vide his order dated 21-3-1995 that Nasrullah be placed in column No. 2 of the format of challan. When Nasrullah contested this through an application, the learned Judge vide his order dated 27-4-1995 maintained his previous order.

2. Nasrullah has come up to this Court challenging the impugned orders on the ground that the learned Trial Court had no jurisdiction to take cognizance against the petitioner whose case was never sent up before him for trial

3. In a latest judgment by this Court in Afsar Khan v. Nawab hahan 1995 PCr.LJ 549 the real import of section 169, Cr.P.C. Was discussed. It may be' reiterated once again that an accused released under section 169, Cr.P.C. Is never included in the report submitted before the Ilaqa Magistrate under section 173, Cr.P.C. So when the same case is sent under section 190(3), Cr.P.C. To the Court of Session, the latter takes cognizance under section 193(1), Cr.P.C. Which clearly lays down in unambiguous words, that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190(3), Cr.P.C. This leads to the conclusion that the Court of Session takes cognizance of only that case which is sent to it for trial by the Ilaqa Magistrate or the Magistrate First Class having taken cognizance under section 190, Cr.P.C.

4. When the name of an accused is not at all mentioned in the report under section 173, Cr.P.C.

Either in column No.2 or column No.3, the Trial Court referred to under section 193, Cr.P.C. Cannot take cognizance against such person.

5. The situation is somewhat different in a case where the name of an accused appears in column No. 2 or column No. 3 of the report under section 173, Cr.P.C. It is a matter of great legal importance and also alluded to in judgment titled Afsar Khan v. Nawab Khan 1995 PCr.LJ 549 authored by me, that the factum of taking cognizance of an offence under section 190 or under section 193, Cr.P.C. Is a complete judicial act. The Court taking cognizance, and before issuing notice to the accused, must go through the file and see as to who should be tried by it. While exercising this discretion, in the light of record, a Court is at liberty to form its own independent opinion While forming such opinion it can ignore holding trial of a person mentioned in column No.2 of the report and vice versa. If it decides to hold the trial, it will issue notice to the person mentioned in column No.2 and would charge him under Chapter 19 of the Cr.P.C. If the Court holds otherwise, it would simply not issue notice to such person and would not charge him for the offence.

5. The application of mind before taking cognizance of the offence is not at all limited to the accused mentioned in column No.2 alone but it can be done qua the accused mentioned in column No.3 of the report. If the Court comes to the conclusion that in view of the evidence, there are no reasons to hold trial against a person appearing in column No.3 of the report, he can be acquitted even before the framing of charge, under section 265-K, Cr.P.C. Or 249-A, Cr.P.C.

6. The case of a person released under section 169, Cr.P.C. Is altogether different from the case of those persons mentioned in columns Nos.2 and 3 of the report submitted under section 173, Cr.P.C.

Such person is not even arrayed by the police as an accused and hence the trial Court cannot, of its own, array him as an accused. The action taken by the learned Additional Sessions Judge through the two impugned orders is, therefore, without jurisdiction. When it is so held, it does not mean that the matter has gone without remedy. The remedy is still open for the complainant to initiate proceedings against such accused under section 200, Cr.P.C.

7. On this point we have a judgment of our own High Court in Criminal Miscellaneous No.33 of 1992 filed under section 561-A, Cr.P.C. By an accused named Abdur Rehman wherein the Hon'ble Judge has held that Abdur Rehman having been released under section 169, Cr.P.C. The trial Court could not take cognizance against him, for the name of such person is not at all referred to him for trial.

Both the learned counsel have stated at the Bar that the aforesaid findings in case of Abdur Rehman have been upheld by the Supreme Court.

8. In the circumstances, the application is accepted, both the impugned orders dated 21-3-1995 and 27-4-1995 of the learned Additional Sessions Judge, Takht Bhai are set aside and the learned Court is directed to proceed with the trial minus Nasrullah petitioner. The aggrieved party may proceed against him, if advised, under section 200, Cr.P.C.

9. Parties to appear before the Trial Court on 14-11-1996.