HAJI ILYAS and others vs THE STATE and others
This criminal miscellaneous application under Section 561-A of the Code of Criminal Procedure 1898 seeks the quashment of criminal proceedings pending before the Sub-Divisional Magistrate for an offence under Section 188 of the Pakistan Penal Code 1860. The core legal question is whether a court can take cognizance of an offence under Section 188 of the Pakistan Penal Code 1860 upon a police report rather than a written complaint by the public servant concerned, in view of Section 195(a) of the Code of Criminal Procedure 1898. The Sindh High Court held that taking cognizance on a police report instead of the mandated written complaint violates the mandatory provisions of Section 195(a), rendering the proceedings coram non judice. The court laid down the principle that proceedings initiated in contravention of the bar against taking cognizance without a proper written complaint are null and void and liable to be quashed.
- Can a court take cognizance of an offence under Section 188 of the Pakistan Penal Code 1860 upon a police report?
- Is a written complaint by the public servant concerned mandatory under Section 195(a) of the Code of Criminal Procedure 1898 for taking cognizance of an offence under Section 188?
- What is the legal status of criminal proceedings initiated in violation of Section 195(a) of the Code of Criminal Procedure 1898?
- Section 561-A, Code of Criminal Procedure 1898
- Section 188, Pakistan Penal Code 1860
- Section 195(a), Code of Criminal Procedure 1898
- Section 144, Code of Criminal Procedure 1898
ORDER
1. ' By this application under section 561-A, Cr.P.C. The applicant seeks quashment of the criminal proceedings in Case No,248 of 2000 of Police Station New Town for the offence punishable under section 188, P.P.C. Pending in the Court of S.D.M., Jamshed Quarters, Karachi.
2. ' The sole contention of Mr. Moula Bux Khoso, learned counsel for the applicants is that the learned S.D.M., Jamshed Quarters has taken cognizance of the proceedings on a police report which is in flagrant violation of the provisions contained in section 195(a), Cr.P.C. Which provides that "no Court shall take cognizance of any offence under sections 172 to 188 of the P.P.C. Except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate".
3. Mr. Moula Bux Khoso has submitted that the learned S.D.M. Could take cognizance of the offence on the complaint by the District Magistrate whose order under section 144, Cr.P.C. Is alleged to have been violated making the applicants liable for punishment under section 188, P.P.C. He has submitted that the point in issue already stands decided in favour of the applicant in the following judgments:--
(1) 1993 PCr.LJ 1307.
(2) 1993 PCr.LJ 1448.
(3) 1993 PCr.LJ 2306.
(4) PLD 1967 Pesh.
4. 307.
(5) 1998 PCr.LJ 584.
5. ' The learned State Counsel has candidly conceded that admittedly the learned S.D.M. Has taken cognizance of the offence on the police report and not on the complaint by the public servant concerned as required under section 195(a), Cr.P.C. And as such there is clear violation of the mandatory provision of law. The learned State Counsel has conceded that the point in issue already stands decided to the effect that in such circumstances the Court taking cognizance in violation of the mandatory provision of law is not competent to proceed with the case and the proceedings are coram non judice.
6. ' As the learned State Counsel has conceded that the impugned proceedings before the learned S.D.M., Jamshed Quarters are liable to be quashed being violative of the mandatory provisions the application is allowed and the proceedings pending before the learned S.D.M., Jamshed Quarters in Criminal Case No,248 of 2000 (State v. Asif and others) Crime No,124 of 2000 of Police Station New Town, are hereby quashed. Applicants are set at liberty.