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Criminal Revision No. 159 of 1965, decided on 3rd December 1965.

S. 436 read with S. 107‑ Section 436 not applicable to proceedings under Chapter VIII of Cr. P. C.‑Object of S. 107, rather administrative than judicial- Application under S. 107 dismissed by Magistrate ‑ Order of District Magistrate directing fresh enquiry under S. 436‑Not maintainable.

Ramala v. Bankateshar Rawan Bahadur, 127 I C 710 and Chitaley "Code of Criminal Note 13 under S. 436 ref.

Jalal‑ud‑Din for Petitioner.

Respondents in person.

Sher Bahadur Khan A. A: G. for the State.

Date of hearing : 3rd December 1965.

Suhbat Khan son of Said Baz, and Haji Ghulam Sarwar son of Inait Ullah Khan residents of village Takkar Tehsil and District Mardan, were proceed against in security proceedings by the trial Magistrate, by his order, dated 20‑4‑1965, who discharged Suhbat Khan and Haji Ghulam Sarwar, under section 119, Cr. P. C. while the opposite‑party was bound down. Muhabat Shah and others, the opposite‑party, preferred a revision under section 435, Cr. P. C. to the District Magistrate against the discharge of Sohbat Khan and Haji Ghulam Sarwar. The learned District Magistrate, by his order, dated 14‑7‑65, accepted the revision and set aside the order of discharge of Sohbat Khan only and ordered a fresh inquiry under section 436, Cr. P. C.

2. Sohbat Khan has come in revision to this Court.

3. Learned counsel for the petitioner has referred me to section 436, Cr. P. C. and contends that under this section a District Magistrate may hold an inquiry or order further inquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204, Cr. P. C. or into the case of any person accused of an offence who has been discharged. He contends that Sohbat Khan petitioner was not an accused of any offence, as he was proceeded against under section 107, Cr. P. C. which is only a preventive measure and not punitive. The learned Additional Advocate‑General concedes that the order passed by the District Magistrate cannot be maintained, as he had no power to pass this order under section 436, Cr. P. C. In support of this contention, he referred to Note 13 of section 436 at page 2323 of Chitaley, Code of Criminal Procedure., Vol., 3, which is in the following words:‑--

"Prior to the amendment of 1923, the words used were "any accused person" and there was a difference of opinion as to whether persons proceeded against under Chapter VIII of the Code were "accused persons" and whether a further inquiry could be ordered in such cases. It was also held that persons proceeded against under section 133, section 145 or section 488 were not accused persons and hence the section had no application to such cases."

From these words it follows that section 436, Cr. P. C. is not applicable to proceedings under Chapter VIII, which relates to security proceedings. The learned A. A: G. also relied upon Ramala v. Bankateshar Rawan Bahadur Pal Singh and others (127 I C 710) where it was held:

"Where an application under section 107, Criminal Procedure Code is dismissed by a Magistrate on the ground that there is no apprehension of breach of peace, the District Magistrate has no power to order a further enquiry."

This authority relied upon by the learned A. A.‑G. is applicable. The object of section 107, Cr. P. C. like that of the other preventive sections in Chapter VIII appears to be rather administrative than judicial. Therefore, if a Magistrate who is responsible for the administration of a Sub‑Division is not satisfied about the advisability of taking proceedings under Chapter VIII of the Cr. P. C. in a particular case, the order passed by the District Magistrate directing a fresh inquiry under section 436, Cr. P. C. is not maintainable, because section 436, Cr. P. C. does not relate to offences under Chapter VIII of the Cr. P. C. The opposite‑party, if so advised, could have filed a fresh complaint under section 107, Cr. P. C. In these circums tances, I accept the revision petition and set aside the order of the learned District Magistrate.

S. A. H./S. Q. Petition accepted.

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