ASLAM AKBAR KAZI and 3 otherss vs GULZAR AHMAD CHANNA and anothers
Criminal miscellaneous application filed under section 561-A of the Code of Criminal Procedure 1898 seeking quashment of direct complaint proceedings pending before the Court of IInd Extra Joint Civil Judge and F.C.M., Hyderabad. The complainant, a Prison Superintendent, alleged that the applicants defamed and blackmailed him and the jail administration by publishing news about an alleged offense inside the prison. The High Court examined whether the Magistrate lawfully took cognizance without establishing a prima facie case or holding an inquiry, and whether the complainant had standing under sections 198 and 198-A of the Code of Criminal Procedure 1898. The Court held that the summoning order was defective as it failed to demonstrate that any prima facie offense was committed, and no inquiry was conducted. Furthermore, the complainant was not the person defamed under section 198, Cr.P.C., nor was the complaint filed by the Public Prosecutor with prior government sanction under section 198-A, Cr.P.C. Consequently, the proceedings and summoning order were quashed.
- Can a Magistrate summon accused persons on a direct complaint without recording a finding of a prima facie offense or conducting an inquiry?
- Whether a defamation complaint under Section 198, Code of Criminal Procedure 1898 can be maintained by a person who is not directly defamed?
- Can a complaint for defamation against a public servant be maintained under Section 198-A, Code of Criminal Procedure 1898 without prior sanction of the Government and without being filed by the Public Prosecutor?
- Section 198, Code of Criminal Procedure 1898
- Section 198-A, Code of Criminal Procedure 1898
1. ' Through this application, the applicants seek quashment of the proceedings in Case No,109 of 1994 in the Court of Ind Extra Joint Civil Judge and F.C.M., Hyderabad. The case was registered on a direct complaint made by present respondent Gulzar Ahmed Channa.
2. ' Gulzar Ahmed Channa, the then Superintendent, Central Prison, Hyderabad made a complaint in the Court of 'Ind Extra Joint Civil Judge and F.C.M., Hyderabad, complaining that the accused were blackmailing, harassing and defaming him and the jail administration. The Magistrate recorded the statement of complainant and thereafter passed the following order:- "Perused' the statement of complainant. Admit. Register. Issue B.W. To the accused persons."
3. ' Mr. Madad Ali Shah, learned counsel for the applicants submits that neither an enquiry was conducted to verify the allegations made in the complaint nor the order passed by the Magistrate shows that, prima facie, any offence has been committed by the present applicants.
4. ' Mr. Muhammad Azeem Panhwar, learned State Counsel concedes that the order is defective and as it does not mention that any offence has been committed by the accused.
5. ' Mr. Madad Ali Shah further submits that it is not the complainant who has been defamed in case the charge is of defamation and under section 198, Cr.P.C. a complaint can be filed only by the person defamed.
6. ' The order passed by the Magistrate, obviously, does not mention that commission of any offence by the accused/present applicants was made out, prima facie, and the record shows that no enquiry was conducted to ascertain if any offence was committed. The complaint mentions that the accused published a news regarding commission of sodomy by Warder Wali Muhammad on U.T.P. Asif. The A allegation was enquired into by the complainant and it was denied by the said persons. Neither Warder Wali Muhammad nor U.T.P. Asif filed the said complaint. If it was a case of defamation against the complainant as 'public servant, the complaint could have been field by the public prosecutor under section 198-A, Cr.P.C. With the previous sanction of the Government.
7. Neither this complaint was filed by Public Prosecutor, nor there was a previous sanction of the Government for the purpose.
8. ' Since neither the complaint was filed by a person authorized by law or one allegedly defamed, nor the Magistrate mentioned that he found that an offence was committed, the order passed by the Magistrate, with the proceedings in pursuance thereto, are not in accordance with law. The orders as well as the proceedings before the Magistrate 'are quashed. Application is allowed accordingly.
Cited by 2 cases
- WAZIR AHMAD KHAN Versus REAYAT KHAN KHATTAK 2019 PLC(CS) 901
- Malik MUHAMMAD SHOAIB BHUTTA vs ABDUL AZIZ MOHMAND and another 2010 CLD 717