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Criminal Revision No. 203 of 1963, decided on 13th July 1964.

S. 153‑B‑No consequential amendment made in Criminal Pro cedure Code, 1898 by way of including newly added section in Sch. II of Cl‑. P. C. and thus indicating procedure to be applicable for trial of offence----Offence under S. 153‑B, in circumstance, held ineffective ‑ Criminal Procedure Code (V of 1898), Sch. II.

Casus omissus‑Mistakes in statutes‑Court not competent to aid Legislatures' defective phrasing nor add, amend and by construction, make up deficiencies to meet justice of individual case‑Legislature wholly omitting to provide for procedure governing investigation, prosecution and trial of offence‑Court, by invoking inherent powers, not competent to lay down any such procedure‑Penal Code (XLV of 1860), S. 153‑B [as inserted by Pakistan Penal Code (Second Amendment) Ordi nance (LXX of 1962)]‑Criminal Procedure Code (V of 1898), S. 561‑A.

Halsbury's Laws of England, Second Edition, Vol. XXXI, p. 497; "Craies on Statute Law" Sixth Edition by S. G. G. Edgar, p. 71; Docks v. Henderson (1888) 13 App. Cas. 595, 602 and Crawford v. Spooner (1846) Moore P C 1, 8, 9 ref.

Shaukat Ali Khan for Petitioner.

Abdul Hakim, D. L. R. for the State.

Abdus Salam Khan, Amicus Curiae.

This Rule nisi was issued on the application of one Manzoor Hussain on Ground No. 1 only which runs as follows :‑

"For that new section 153‑B has created new offence under the Penal Code but provided no forum and procedure and so your petitioner is not chargeable unless specific procedure is provided and as such the proceedings against the petitioner should be quashed."

Facts upon which the present Rule was issued may be summed up as follows:‑

On a report made to the Sub‑Divisional Officer of Naogaon in the district of Rajshahi on the 20th of September 1962, by the Officer‑in‑charge of Naogaon Police Station, the former having found a prima facie case against the petitioner made out under section 153‑B of the Pakistan Penal Code, at once issued a warrant of arrest against the petitioner and adjourned the matter till the 25th of September 1962. In execution of the said warrant of arrest the petitioner was produced before the Sub‑Divisional Officer on the 21st of September 1962, and was admitted to bail. The case was subsequently transferred to Mr. N. Zaman, a Magistrate of the 1st Class for disposal. Mr. N. Zaman, who received the case by transfer on 25‑9‑62, fixed 2nd of October 1962, for examination of witnesses. In the meantime, on 28‑9‑1962, the petitioner moved the learned Sessions Judge of Rajshahi asking him to refer the matter to the High Court under section 438 of the Code of Criminal Procedure on a ground similar to the one upon which the present Rule was issued. The learned Sessions Judge refused to refer the matter as asked for and hence the petitioner approached this Court and obtained the present Rule.

Mr. Shaukat Ali Khan has appeared on behalf of the petitioner while Mr. Abdul Hakim, the learned Deputy Legal Remembrancer, has appeared on behalf of the State. Considering the importance of the matter, we asked Mr. Abdus Salam Khan, Advocate, to appear in this case as amicus curiae to assist the Court and he was good enough to do so. We are grateful to him for the assistance he has given us in this matter.

The short point for consideration in this case is: What is to happen where a new offence has been created under the Pakistan Penal Code and no procedure has been provided for the trial of such offence

By Ordinance No. LXX of 1962 published in the Extraordinary Gazette of Pakistan, dated the 7th of June 1962, a new offence, namely, section 153‑B was created under the Pakistan Penal Code in the following terms:‑

"153‑B. Inducing students, etc., to take part in political activity,‑

Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, induce or attempts to induce any student or any class of students, or any institution interested in or connected with students, to take part in any political activity shall be punished with imprisonment which, may extend to two years or with fine or with both.

Explanation.‑In this section Political activity' includes activities like processions, strikes, demonstrations, and meetings arranged for a political purpose."

No consequential amendment, however, has been made in the Code of Criminal Procedure to indicate what procedure should be applicable to an offence under section 153‑B of the Penal Code. Hitherto it has always been the practice of the Legislature that whenever a new offence was created under the Penal Code; consequential amendment was made in the Code of Criminal A Procedure by inserting such offence in Schedule II of the latter Code. This shows that the Legislature always thought it necessary to make consequential amendment in the Code of Criminal Procedure itself. We think this is the first case of its kind where the Legislature has created a new offence under the Penal Code but has not provided for the procedure applicable to such offence.

It is desirable to state in the very beginning that with the exception of a few cases almost all the cases originate before a Magistrate in the first instance.

Mr. Salam Khan has endeavoured to show that the Code of Criminal Procedure without any consequential amendment does contain provisions which throw light as to how the new offence under section 153‑B of the Penal Code can be proceeded with and tried. In support of his contention he has drawn our atten tion to various sections of the Code of Criminal Procedure which we now proceed to consider.

Section 5 (1) of the Code of Criminal Procedure states that all offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code of Criminal Procedure.

Section 5 (2) of the Code of Criminal Procedure does not apply to the present case inasmuch as the new offence is created under the Penal Code and not under any other law.

Section 6 of the Code of Criminal Procedure states the classes of criminal Courts under the said Code. For our purposes we may state here that the High Courts and the Courts of Sessions are included in such classes of criminal Courts.

Our attention was next drawn to section 28 of the said Code which states as follows:‑‑‑

"Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried‑

(a) by the High Court, or

(b) by the Court of Sessions, or

(c) by any other Court by which such offence is shown in the eighth column of the Second, Schedule to be triable."

We may pause here for a moment and say that since there has been no consequential insertion of section 153‑B in the Second Schedule to the Code of Criminal Procedure, clause (c) of section 28 of the said Code does not apply to the present case. Therefore the only Courts competent to try an offence under section 153‑B of the Penal Code are the High Courts or the Courts of Session.

The High Court or the Court of Sessions, however, cannot take cognizance of an offence under section 153‑B unless there has been a preliminary inquiry by a competent Magistrate and the case in respect of the offence has been committed to the High Court or the Court of Sessions. Provisions of section 194(2) of the Code of Criminal Procedure obviously do not apply to the case. It may, therefore, be said that so far as the Court which is to try the offence under section 153‑B of the Penal Code is concerned, the Code of Criminal Procedure does afford some guidance irrespective of the fact that section 153‑B has not been inserted in the Second Schedule to the Code of Criminal Procedure.

We now come to various other matters applicable to pro ceedings of a particular case. Apart from providing which Court is competent to try a particular offence, the Code of Criminal Procedure contains a complete set of rules governing other essential details of procedure applicable to a proceeding under the Code. Such rules state what offence is cognizable or non‑cognizable, bailable or non‑bailable, compoundable or non‑compoundable. They further give particulars of offences in which a warrant or a summons shall ordinarily issue in the first instance. In all these matters as well as the Court which can try a particular offence under the Penal Code, Schedule II of the Code of Criminal Procedure affords ready and complete guidance. Such guidance is totally lacking in case of an offence under section 153‑B of the Penal Code.

Before we proceed further we think it necessary to state that Magistrates are not accustomed to a laborious search of the provisions of the Code of Criminal Procedure to find out what procedure pan be discovered to cover the case of a new offence under the Penal Code about which Schedule II of the Code of Criminal Procedure itself is absolutely silent. The scheme of the Code of Criminal Procedure is such that a reference to Schedule 11 of the Code is always found necessary. Provisions of subsection (1) of section 204 of the Code of Criminal Procedure will make this point abundantly clear. The section runs as follows:

"If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which according to the fourth column of the Second Schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction."

While it is true that in other matters contained in the Second Schedule to the Code of Criminal Procedure irrespective of a reference to the said Schedule, some light may be obtained from the body of the Code itself by reference to different sections of the Code; so far as section 204(1) of the Code of Criminal Procedure, however, is concerned, the body of the Code exclusive of the Second Schedule to the Code, affords us no such guidance whatsoever.

As the result of a research of the provisions of the Code to obtain guidance in matters to which the Second Schedule to the Code affords a ready guidance, we have come to the following conclusions:‑

Under clause (f) of section 4 of the Code of Criminal Procedure "cognizable offence" has been defined thus

'Cognizable offence' means an offence for, and cogniz able case' means a case in which a police officer, may, in accordance with the Second Schedule or under any law for the time being in force, arrest without warrant."

A "non‑cognizable offence" has been defined under clause (n) of the aforesaid section as follows

'Non‑cognizable offence' means an offence for, and non- cognizable case' means a case in, which a police officer, may not arrest without warrant."

Having regard to the aforesaid provisions, it appears to us that offence under section 153‑B of the Penal Code is a non‑cognizable one.

Section 4 (b) of the Code of Criminal Procedure defines a "bailable offence" and a "non‑bailable offence" thus

" Bailable offence' means an offence shown as bailable in the Second Schedule, or which is made bailable by any other law for the time being in force arid 'non‑bailable offence' means any other offence,"

It will, therefore, be seen that offence under section 153‑B of the Penal Code is a non‑bailable one for the offence is not shown as bailable in the Second Schedule.

As the offence under section 153‑B of the Penal Code is not covered by section 345 of the Code of Criminal Procedure, it is not a compoundable offence. Again the Code of Criminal Procedure provides different procedure for the investigation of cases that are cognizable and cases that are non‑cognizable. Reference in this connection may be made to sections 154, 155, 156 and 157 of the Code.

The present offence being a non‑cognizable one, under section 155, subsection (2) of the Code of Criminal Procedure no police officer can investigate the case without the order of a Magistrate of the First or the Second Class having power to try such case or commit the same for trial.

It does not appear from the records of the present case whether the police officer obtained any such order which is mentioned in section 155 (2) of the Code.

As may have been noticed already, in spite of a laborious research we have failed to get a clear picture of the procedure that may be applied to the investigation, prosecution and trial of an offence under section 153‑B of the Penal Code. The result is that so par as the Magistrates are concerned who "alone can deal with the mater in the first instance they are left without any guidance as to how an offence under section 153‑B of the Penal Code can be dealt and proceeded with. Even in matters in respect of which we get some light from the body of the Code of Criminal Procedure exclusive of the Second Schedule unless a superior Court collects those provisions and directs that they be followed in a proceeding for an offence under section 153‑B of the Penal Code, the Magistrates are liable to find themselves in a quandary as to the procedure applicable to the offence.

We have carefully investigated this matter and have explained cases dealing with casus omissus. We have, however, not been able to obtain any light from them inasmuch as they deal with cases of small omissions here and there but none of them deals with any wholesale omission of the present kind. It is, therefore, useless in the context of the present case to discuss these cases in extenso. We may, however, usefully refer to the following passages in the Halsbury's Laws of England, Second Edition, Volume XXXI at page 497 under the heading "Mistakes in Statutes" to illustrate cases on casus omissus:‑

"It is not competent to any Court to proceed upon the assumption that Parliament has made a mistake, there being a strong presumption that Parliament does not make mistakes. If blunders are found in legislation, they must be corrected by the Legislature, and it is not the function of the Court to repair them. Thus while terms can be introduced into a statute to give effect to its clear intention by remedying mere defects of language, no provision which is not in the statute can be implied to remedy an omission in the absence of any ground for thinking that such a course is necessary to carry out the intention of Parliament."

Similarly it has been stated in "Craies on Statute Law", Sixth Edition by S. G. G. Edgar, at page 71, under the heading "casus omissus not to be created or supplied" as follows:‑

"The authorities on this subject are numerous and unani mous. No case can be found to authorise any Court to alter a word so as to produce a casus omissus', said Lord Halsbury in Mersey Docks v. Henderson (1888) 13 App. Cas. 595, 602. In Crawford v. Spooner (1846) 6 Moore P C 1, 8, 9, the Judicial Committee said: We cannot aid the Legislatures defective B phrasing of an Act, we cannot add and amend, and by construc tion, make up deficiencies which are left there'. In 1951 in Magor and St. Mellons R. D. C. v. Newport Corpn. it was held by the House of Lords that a Court has no power to fill any gaps disclosed in an Act. To do so would be to usurp the function of the legislation.

"In other words, the language of Acts of Parliament, and more especially of modern Acts must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet the justice of an individual case. If', said Lord Brougham in Gwynne v. Brunell (1840) 7 Cl. & F 572, 696), we depart from the plain and obvious meaning on account of such views (as those pressed in argument on 43 Geo. 3, c. 99), we do not in truth construe the Act, but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the Legislature could easily have supplied, and are making the law, not interpreting it."

It will thus be seen that the cases that are found on casus omissus have no reference whatsoever to a case of the present kind where the Legislature has wholly omitted to provide for procedure governing the investigation prosecution, and trial of an offence under section 153‑B of the Penal Code. It is entirely within the jurisdiction of the Legislature to prescribe the procedure to be followed in a case like the present one. In the absence of any such act on the part of the Legislature, the High Court cannot lay down any such procedure. The primary and sole duty of a Court of law is to interpret and not to legislate. The decisions on casus omissus deal with cases where the Courts have intervened to give effect to the intention of the Legislature by supplying an obvious omission or to throw light in matters where the Legislature has not used clear and unambiguous language although the intention appears to be clear with reference to the context of the legislation.

In our opinion even the inherent powers of the Court to provide for its own procedure where the Code of Criminal Procedure is silent have no application to the present case. The principle applies to matters of inessential and contingent details all of which the Legislature is not expected to foresee and provide) for.

In these circumstances, we have come to the unhesitating conclusion that the creation of an offence under section 153‑B of the Penal Code is ineffective inasmuch as the legislation has failed to provide for a machinery to bring the offender in respect of the offence to book. We have, therefore, no other alternative but to quash the proceedings pending against the petitioner under section 153‑B of the Penal Code gin. Case No. 928‑C/1962 in the Court of Mr. N. Zaman, Magistrate of the 1st Class, Naogaon, and we accordingly do so,

In the result, this Rule is made absolute.

The petitioner is discharged from his bail bond.

K. B. A. Rule made absolute.

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