KHADIM HUSSAIN and 6 others vs THE STATE
This criminal miscellaneous application was filed by the applicants seeking the quashment of preventive proceedings initiated against them under Sections 107 and 150 of the Code of Criminal Procedure 1898, pending before the Mukhtiarkar and First Class Magistrate, Kotri. The core legal question was whether the trial Magistrate acted in accordance with the law when initiating these proceedings and issuing warrants against the applicants. The Court held that the proceedings were a nullity and an abuse of the process of the Court. The ratio of the decision is that proceedings under Section 107, Code of Criminal Procedure 1898, require specific, definite information regarding the conduct of the individuals involved, which was absent in the police report. Furthermore, the Court established that a Magistrate must assign specific reasons for issuing warrants instead of summons in the first instance, and must ensure that a copy of the order under Section 112, Code of Criminal Procedure 1898, accompanies the process served upon the accused, as mandated by Section 115, Code of Criminal Procedure 1898. Failure to adhere to these procedural safeguards renders the proceedings invalid.
- Is it mandatory for a Magistrate to assign reasons when issuing warrants instead of summons in proceedings under Section 107 of the Code of Criminal Procedure 1898?
- Must a copy of the order under Section 112 of the Code of Criminal Procedure 1898 be served along with the summons or warrants issued to the accused?
- Does a police report under Section 107 of the Code of Criminal Procedure 1898 require specific details of the acts of each individual to be legally sufficient for taking cognizance?
- Section 107, Code of Criminal Procedure 1898
- Section 112, Code of Criminal Procedure 1898
- Section 114, Code of Criminal Procedure 1898
- Section 115, Code of Criminal Procedure 1898
- Section 150, Code of Criminal Procedure 1898
ORDER
1. ' By this criminal miscellaneous application the applicants Khadim Hussain, Ali Akbar, Aziz, Yakoob, Ghafoor all by caste Chachar, Tufail and Ghulam Mustafa by caste Syed have sought quashment of proceedings under sections 107, 150, Cr.P.C. Pending before Mukhtiarkar and F.C.M., Kotri.
2. ' The brief facts as disclosed in the report under sections 107, 150, Cr.P.C., dated 20-9-1999 submitted by S.I.P./S.H.O. Lutufullah of Police Station Amri before the Mukhtiarkar and F.C.M., Kotri are as under:-- "It is submitted that the respondents are residing within the jurisdiction of the Court. There was dispute between Hussain Bux Rind and respondents over the agricultural land and such cognizable reports were registered against them and after usual investigation they were sent up to stand the trial. The respondents are influential and hot headed persons and dispute is pending between the parties, therefore, there is imminent apprehension of breach in peace between the parties. It is, therefore, requested that a report is submitted and warrants against the respondents may be issued."
3. ' The trial Magistrate after receipt of report stated hereinabove issued bailable warrants against the applicants.
4. ' I have heard Mr. Noor Nabi G. Memou, learned counsel for the applicants and Mr. Mukhtar Ahmed Khanzada, learned counsel on behalf of Advocate-General for the State. The latter conceded to the quashment of the proceedings. I have also perused the material placed on record as well as R&P of the case.
5. ' The perusal of record shows that the report under sections 107, 150, Cr.P.C. Was submitted before the trial Magistrate on 20-9-1999 and bailable warrants were issued against the applicants on 22- 9-1999 so also order under section 112, Cr.P.C. Was passed on 22-9-1999.
6. The proceedings under section 107, Cr.P.C. Are not penal but punitive in nature and for taking cognizance it is essential that information must be of a clear definite kind directly affecting the persons against whom proceedings are to be drawn up and it should also disclose the tangible facts and details. The act of each applicant was not clearly mentioned or disclosed in the impugned report. No names of the witnesses were mentioned in the report. It is envisaged under section 114, Cr.P.C. That if the person is not present in Court the Magistrate shall issue a summon requiring him to appear. The Court can issue warrants under exceptional circumstances but has to assign the reasons for the same. In the present matter no reasons have been assigned by the trial Magistrate for issuing warrants in the first instance.
7. ' It is contemplated under section 115, Cr.P.C. That every summon or warrant issued under section 114, Cr.P.C. Shall be accompanied by a copy of the order under section 112, Cr.P.C. And such copy shall be delivered by the Officer serving or executing such summon or warrants to the person served with or arrested under the same.
8. The perusal of record shows that no copy of order under section 112, Cr.P.C. Was sent by the trial Magistrate to the applicants alongwith warrants.
9. ' Consequently the proceedings pending before the trial Court against the applicants are nullity in the eye of law and their continuance will be an abuse of the process of the Court. Consequently the same are quashed. The applicants are on bail before the trial Court, their bail bonds stand discharged.
10. ' By my short order, dated 24-1-2000 the present criminal miscellaneous application was allowed and above are the detailed reasons for the same.