MUHAMMAD SALEEM and others vs THE STATE
This criminal revision petition arose from proceedings initiated against six individuals following a complaint filed by the Assistant Controller of Buildings, Zone-VIII (KBCA) for violations under the Sindh Buildings Control Ordinance, 1979. The petitioners sought to quash the proceedings pending before the Judicial Magistrate, arguing that the Magistrate lacked jurisdiction because the minimum fine prescribed by the Ordinance (Rs. 20,000) exceeded the Magistrate's sentencing power under Section 32(1)(a) of the Code of Criminal Procedure 1898. Additionally, the petitioners challenged the complainant's authorization and the validity of the notification under the Ordinance. The Court held that while the Magistrate could impose imprisonment, the inability to impose the mandatory minimum fine rendered the Magistrate incompetent to try the case. However, rather than quashing the proceedings, the Court ruled that the Magistrate should forward the case to the Court of Sessions for assignment to a competent court. The principle established is that where a Magistrate lacks the sentencing jurisdiction to impose the minimum statutory fine for an offence, the appropriate remedy is to transfer the case to a court with sufficient jurisdiction rather than quashing the entire proceedings.
- Can a Magistrate try an offence where the mandatory minimum fine exceeds the Magistrate's sentencing powers under the Code of Criminal Procedure 1898?
- Is quashment of proceedings the appropriate remedy when a Magistrate lacks the pecuniary jurisdiction to impose the statutory fine?
- Does a Magistrate have the authority to forward a case to the Court of Sessions when the Magistrate lacks the jurisdiction to impose the required sentence?
- Section 6, Sindh Buildings Control Ordinance 1979
- Section 19, Sindh Buildings Control Ordinance 1979
- Section 32(1)(a), Code of Criminal Procedure 1898
- Section 4, Sindh Buildings Control Ordinance 1979
- Section 190(1)(c), Code of Criminal Procedure 1898
- Section 347, Code of Criminal Procedure 1898
ORDER
1. ' A complaint made by the Assistant Controller of Buildings, Zone-VIII (KBCA) against six persons for an offence under section 6 read with 19 of the Sindh Buildings Control Ordinance, 1979 was entertained by Judicial Magistrate, VI South, Karachi and the case was brought on record. The order was challenged in revision but the learned 3rd Additional Sessions Judge, Karachi South, to whom revision was entrusted, dismissed the revision, which order has been assailed in these proceedings with a prayer to quash the proceedings pending in the Court of learned Judicial Magistrate.
2. ' By consent the matter is admitted to regular hearing and arguments are heard.
3. ' The eminent contention raised in this behalf by Mr, Jawaid Haider Kazmi is that section 19 of Sindh Buildings Control Ordinance, 1979 prescribes the punishment of simple imprisonment and in the alternative fine but the lowest quantum of fine is' fixed at Rs,20,000 meaning thereby that the Court could impose fine of Rs,20,000 or more-whereas, under section 32(1)(a), Cr.P.C. The Magistrate can impose fine not exceeding Rs,15,000/-. Secondly, the notification within the meaning of section 4 of the Sindh Building Control Ordinance, 1979 has not been issued strictly in accordance with the said provisions. It was also argued that the complainant was not authorised in express terms to file a complaint and that the cognizance under section 190(1)(c), Cr . P.C. Was erroneously taken by the Magistrate. These contentions were met by the learned Additional Sessions Judge in the impugned order. However, learned State counsel conceded that learned Magistrate has no power to impose fine of Rs,20,000, therefore, he could not take cognizance.
4. ' It is correct that in this case learned Magistrate can impose sentence of imprisonment but he cannot impose sentence of fine for the offence. It is, however, not expected the learned Magistrate would assume or declare that he will pass sentence of imprisonment and not of fine Nevertheless, I would agree with the legried revisional Court that within the meaning of section 347, Cr.P.C. The Magistrate is competent to forward the case, to the Court of Sessions for assigning, it to appropriate Court. Therefore, quashment of the proceedings in such an event would not be justified. Prayer for quashment is as such rejected.
5. ' Mr. Jawaid Haider Kazmi on the point of authorization was of the view that the right at the initial stage before Judicial Magistrate the, complainant should prove that he has been authorised to institute the complaint. This point, can legitimately be considered and decided by the appropriate.
6. Court to whom the complaint is ultimately forwarded.
7. Accordingly, it is directed that this complaint be forwarded by the learned Magistrate to the Sessions Court who may take further proceedings in accordance with law and the appropriate Court should determine and decide the legal objections. The application stands disposed of.