Pirzada RIFFAT MEHMOOD vs THE STATE and anothers

' Instant petition under section 561-A, Cr.P.C, has been filed for setting aside the order dated 6-3- 1999 passed by Ch. Muhammad Younas, learned Additional Sessions Judge, Rawalpindi.

2. Briefly stated the facts are that the petitioner filed a private complaint under sections 452, 454, 295, 295-A, 427, 148 and 149, P.P.C. Against the respondents in the Court of Judicial Magistrate, Murree. After recording preliminary evidence, the learned trial Court summoned the respondents under sections 452, 454, 427, 148 and 149, P.P.C. Vide order, dated 12-6-1998. The respondents felt aggrieved of the said order and filed a revision petition which was heard and disposed of by the learned Additional Sessions Judge, Rawalpindi, who vide order, dated 6-3-1999 accepted the same and set aside the order, dated 12-6-1998.The petitioner has felt aggrieved of the said order and has filed the instant petition.

3. Arguments have been heard and record perused.

4. Main contention of learned counsel for the petitioner is that the learned Additional Sessions Judge has disposed of the revision petition primarily on the ground that the very filing of the complaint was not in accordance with law as it violated the provisions of section 196, Cr.P.C. He submitted that this contention of the learned Additional Sessions Judge is legally incorrect as no such bar has been imposed in section 196, Cr.P.C., that no doubt initially the complaint was filed including the offences under sections 295 and 295-A, P.P.C., that trial Court has not summoned the respondents under sections 295 and 295-A, P.P.C. And summoned the respondents under sections 452, 454, 427, 148 and 149, P.P.C. Which were within its cognizance, that although offences under sections 295 and 295-A, P.P.C. Do not fall within the jurisdiction of the trial Court, yet it could take the cognizahce of the complaint as other offences fell within its competence. He further submits that expression "taking cognizance" does not ipso facto mean the entertainment of the complaint by the Magistrate but the application of his mind to the suspected commission of an offence. He, thus, submitted that proceedings prior to the issue of process to the accused do not amount to taking cognizance of the case and placed reliance upon Gulab Khan v. Fazal Hussain and another (1968 PCr.L.J' 730). He further contended that when the facts alleged in a complaint, or in a report from the police or in an information received by the Magistrate, on which a Magistrate can ordinarily take cognizance of an offence under section 190, Cr.P.C. Disclose an offence of which cognizance cannot be taken by the Magistrate because of the special provisions of sections 195 or 196 or 196-A, Cr.P.C., the Magistrate is not debarred, because of this from taking cognizance also of other offences disclosed by the facts alleged, which are not in any way affected by the provisions of sections 195, 196 and 196-A etc. And placed reliance upon Dhirendra Nath Bera v. Nurul Huda and others (AIR (38) 1951 Calcutta 133). He, thus, submitted that order, dated 12-6-1998 has been passed in accordance with law by the Judicial Magistrate and order, dated 6-3-1999 of the learned Additional Sessions Judge is not warranted by law.

5. Conversely, Sardar Muhammad Ishaque Khan, Advocate, for respondent No,2 has supported the impugned order. He submitted that section 196, Cr.P.C. Contains a bar in entertaining a complaint in which prior sanction of the Federal Government or the Provincial Government is necessary, as such the very entertainment of complaint of the petitioner was not warranted by law. He contends that this fact was not taken into consideration by the Judicial Magistrate while entertaining the complaint and passing order dated 12-6-1998 and as such the same has rightly been set at naught by the learned Additional Sessions Judge vide order, dated 6-3-1999, that there is no force in this petition and the same be dismissed.

6. Ch. Zahoor Hussain, learned counsel for respondents Nos.3 to 8 submitted that Magistrate is competent to take cognizance of a complaint under section 200, Cr. P. C. But the word "complaint" occurring in section 200, Cr.P.C. Denotes that complaint which is in order and fulfils the prerequisites of section 196, Cr.P.C. He further submits that as the very complaint had not been filed after obtaining the permission of the Federal Government or the Provincial Government, as required under section 196, Cr.P.C., so the very entertainment of the complaint was not in accordance with law. He further contends that the crux of the complaint is that Resident Magistrate was assaulted as a result of an unlawful assembly headed by respondent No,2 but neither the R.M.

Has been cited as a witness nor he has been produced in support of his contentions before the trial Court. He then submitted that as the trial Court could not entertain the complaint, so the order, dated 12-6-1998 has been set aside by the Appellate Court vide order, dated 6-3-1999 and petition merits rejection.

7. The point which requires determination is, if the trial Court could take cognizance of complaint under sections 452, 454, 295, 295-A, 427, 148 and 149, P.P.C. The answer is in negative. It is fact that section 196, Cr.P.C. Contains that no Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except section 127) or punishable under sections 108-A, 153-A, 294-A, 295-A and 505, P.P.C. Unless upon complaint made by order of or under aurthority from the Federal Government or the Provincial Government concerned, or some officer empowered in that behalf by either of the two Governments. Admittedly, no such sanction as required by section 196, Cr.P.C. Was obtained before lodging the complaint nor the same was attached with the complaint. Thus, the very entertainment of complaint by the Court (J/M) was not warranted by section 196, Cr.P.C. Thus order, dated 12-6-1998 passed by the Judicial Magistrate suffered from jurisdictional defect and the learned Additional Sessions Judge has rightly reversed the said findings vide order, dated 6-3-1999. The instant petition is being devoid of any substance, fails and is hereby dismissed.