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Criminal Miscellaneous No. 2775 of 1965/Criminal Revision No. 719 of 1965, decided on 16th May 1966.

S. 190 (1) (c)--Magistrate holding preliminary enquiry in accordance with Chapter XVIII of Code summoning accused whose name appeared in column No. 2 of challan‑Deemed to be acting under S. 190(1) (c).

Abdul Sattar Maula v. The Crown P L D 1953 F C 145 and Mirza Muhammad Abbas v. The State P L D 1964 Lah. 7 rel.

S. 191‑Principle underlying S. 191 cannot be extended and made applicable to peliminary enquiry preparatory to commitment.

The preliminary enquiry is criminal proceedings' being a step' in the trial of a person accused of an offence exclusively triable by the Court of Session but it can by no stretch of argu ment be held to be a trial. Chapter XX of the Code deals with the trial of summons cases by Magistrate while the trial of warrant cases by Magistrate is provided in Chapter XXI of the Code. In cases exclusively triable by the High Court or Court of Session (as the case may be) the trial actually begins after com mitment in accordance with section 213 of the Code.

In a case relating to an offence exclusively triable by Court of Session the application of section 191 of the Code is not attracted to the proceedings because it is provided in the section itself that in case the accused or any of the accused if there be more than one, objects to being tried by the Magistrate who has taken cognizance of an offence under clause (c) of subsection (1) of section 190 of the Code, he can either transfer the case to another Magistrate or commit it to Court of Session for trial.

A case triable by a Magistrate must be transferred to another Magistrate if the accused objects to being tried by a particular Magistrate who has taken cognizance of an offence under House (c) of section 190 (1) of the Code, but if the offence is triable by Court of Session the section itself provides that such Magistrate should commit the case to Court of Session because in cases exclusively triable by Court of Session the Magistrate takes cognizance of offence for the limited purpose of committing for trial and as an accused person in such a case is not to be tried by the Magistrate, the provision in section 191 of the Code that the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Magistrate, do not come into play. The principle underlying section 191 of the Code cannot be extended and made applicable to a preliminary enquiry preparatory to commitment because such an interpreta tion would amount to doing violence to the language of the section.

Teja Singh v. S. Kishen Singh P L D 1949 Lah. 477 ; Emperor v. Raghunandan Saran Das A I R 1936 Pat. 639 ; Alimuddin Howladar v. Emperor I L R 29 Cal. 392 ; Azem All v. Emperor A I R 1918 Cal. 3 and Queen‑Empress v. Abdul Razzak Khan and another I L R 21 All. 109 rel.

Mahmood Ali, Dr. Tassadduq Hussain and Sarfraz Ahmad for Petitioner.

Kh. Saeed‑ul‑Hassan for A.‑G. for the State.

Mian Badi‑uz‑Zaman and Bashir Parvaiz for Respondent.

Dates of hearing : 6th and 11th May 1966.

This is an application in revision against the order of Mian Muhammad Akram, Magistrate 1st Class, Gujrat, dated the 23rd of September 1965, refusing to act under section 191, Cr. P. C.

2. The relevant facts are these. On the 9th of June 1965 a case under sections 148, 302/149, 307/149 and section 34, P. P. C. was registered at City Police Station, Gujrat, against 18 persons including Mian Muhammad Akbar petitioner, who was shown in column No. 2 of the Challan as a result of investigation made by the Deputy Superintendent of Police, Crime Branch, Lahore. When the challan was put in Court Mian Muhammad Akram, Magistrate 1st Class, Gujrat proceeded to make the following order on the 24th of August 1965 :‑

"Incomplete challan against seventeen accused put up. Mian Muhammad Akbar accused placed in column No. 2 by the police. F. I. R. seen and papers connected with the case perused. In view of this, I conclude that the allegation against Mian Muhammad Akbar must have judicial adjudication. Evidence be sent for against all the eighteen accused. As on the previous occasions, when other accused were produced for further remand, Mian Muhammad Akbar was always reported unwell, a Robkar be written to the jail authorities to intimate, if he would be in a position to stand the present inquiry against him on 28th instant."

On the 21st of September 1965, Mian Muhammad Akbar petitioner made an application to the Court concerned in which be submitted that since the learned Magistrate had by summon ing the petitioner, acted under clause (c) of section 190(1), Cr. P. C, he was bound to enquire from the accused before the commencement of the evidence whether he wished to be tried by the same or some other Court and that this provision be complied with and the application of the petitioner disposed of before the 23rd of September 1965 which was the date fixed for hearing in the main case. The application of Mian Muhammad Akbar was disposed of by the learned Magistrate on the 23rd September 1965 with the following order :‑

"The point agitated before me is that Mian Muhammad Akber accused under section 302/307/148/149, P.P.C., who was placed in column No. 2 by the police, was summoned by the order of this Court dated 24‑8‑65, and as such the cognizance of the offence taken in case of the above accused falls under section 190(1)(c), Cr. P. C., which necessitates the mandatory compliance of section 191, Cr. P.C. On this point both the counsel filed written arguments and also argued the case in the Court. After a careful perusal, I find that the order of summoning Mian Muhammad Akbar accused dated 24‑8‑65 was not based upon information received from any person other than a police officer or upon the knowledge or the suspicion of this Court as envis aged in the wording of subsection (c) of section 190, Cr. P. C., but it was upon the careful perusal of the police report F. I. R. and statements of the eye‑witnesses under section 161, Cr. P. C. which makes the order of this Court dated 24‑8‑65, fall within the four corners of subsection (b) of section 190, Cr. P.C. pre suming that the order dated 24‑8‑65 was under section 190(1)(c) then the provision of section 191, Cr. P. C. would not be applicable to commitment proceedings as it only applies to trials as the word used in this section is tried'. As such, I conclude that the order of the Court dated 24‑8‑65 was clearly under section 190(1)(b), Cr. P. C. The accused are present in the Court. Evidence of the first two eye‑witnesses is sent for 2‑10‑1965."

3. I now proceed to determine whether the learned Magistrate, who was to hold the preliminary enquiry in accordance with Chapter XVIII of the Code of Criminal Pro cedure, 1898 (hereinafter referred to as the Code) in summoning the petitioner acted under clause (c) or clause (b) of section 190, Cr. P. C. The relevant portions from the section reads :‑

"190 (1) Except as hereinafter provided any District Magistrate or Sub‑Divisional Magistrate and any other Magistrate specially empowered in this behalf, may, take cognizance of any offence‑

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made h:' any police‑officer;

(c) upon information received from any person other than a police‑officer, or upon his own knowledge or suspicion, that such offence has been committed.

(1) -----------------------------------------------------------------

(2) -----------------------------------------------------------------

(3) I am clear in my mind that in passing the order dated the 24th of August 1965, the learned l Magistrate purported to act under clause (c) and not clause (b) of section 190 (1) of the Code. I am fortified in this view by the decision of the Federal Court in Abdul Sattar Maula v. The Crown (P L D 1953 F C 145) which was followed by this Court in the case reported as Mirza Muhammad Abbas v. The In. State (P L D 1964 Lah.). The relevant portion from the latter case runs :‑

"A further question to be considered is that when a Magistrate issues summonses to an accused whose name has been mentioned in column No. 2, whether he will be deemed to be acting under clause (b) or clause (c) of subsection (1) of section 190, Cr. P.C. if he is deemed to be acting under clause (c) it will be incumbent upon him to comply with the provisions of section 191, Cr. P. C. and to inform the accused that he was entitled to have the case tried by another Court, and if the accused or any of the accused if there be more than one, object to being tried by such Magistrate he should either commit the case to the Court of Sessions or transfer it to another Magistrate. Abdul Sattar Maula v. The Crown is a direct authority on this point, which lays down that in such a case the Magistrate would be deemed to be acting under clause (c) of sub‑clause (I) of section 190, Cr. P. C."

5. The next question which I am called upon to decide is whether, in the circumstances, section 191, Cr. P. C. applied. The section reads as under :‑

"191. When a Magistrate take cognizanee of an offence under subsection (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate."

6. Learned counsel for the petitioner vehemently contended that the Magistrate having taken cognizance of the case against Mian Muhammad Akbar under clause (c) of subsection (1) of section 190 of the Code was bound to inform the petitioner that he was entitled to have the case tried by another Court. In this connection, learned counsel invited attention to the Federal Court's ruling referred to by me above. I have gone through the reported case with care and find that the principle laid down therein does not apply to a preliminary enquiry in a case

exclusively triable by the Court of Session.

7. I am now called upon to decide whether the preliminary enquiry before a Magistrate in a case triable by the Court of Sessions as contemplated by Chapter XVIII of the Code, is a trial. There is no doubt, that the preliminary enquiry is a, criminal proceedings' being a step in the trial of a person" accused of an offence exclusively triable by the Court of session but it can by no stretch of argument be held to be a trial Chapter XX of the Code deals with the trial of summonses cases by Magistrate while the trial of warrant cases by Magistrate is provided in Chapter XXI of the Code. In cases exclusively triable by the High Court or Court of Session (as the case may be) the trial actually begins after commitment in accordance with section 213 of the Code. I am, therefore, clear in my mind that in a case relating to an offence exclusively triable by Court of Session the application of section 191 of the Code is not attracted to the proceedings because it is provided in the section itself that in case the accused or any of the accused if there be more than one, objects to being tried by the Magistrate who has taken cognizance of an offence under clause (c) of subsection (1) of section 190 of the Code, he can either transfer the case to another Magistrate or commit it to Court of Session for trial.

8. In my view a case triable by a Magistrate must bet transferred to another Magistrate if the accused objects to being tried by a particular Magistrate who has taken cognizance of an offence under clause (c) of section 190(1) of the Code but if the offence is triable by Court of Session the section itself provides that such Magistrate should commit the case to Court of Session because in cases exclusively triable by Court of Session the Magistrate takes cognizance of offence for the limited purpose of committing for trial and as an accused person in such a case is not to be tried by the Magistrate, the provision in section 191 of the Code that the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Magistrate, do not come into play. The principle underlying section 191 of the Code cannot be extended and made applicable to a preliminary enquiry preparatory to commitment because such an interpretation would amount to doing violence to the language of the section. Teja Singh v. S. Kishen Singh (P L D 1949 Lah. 477), Emperor v. Raghunandan Saran Das (A I R 1936 Pat. 639), Alimuddin Howladar v. Emperor (I L R 29 Cal. 392) are inapplicable and clearly distinguishable. Azem Ali v. Emperor (A I R 1918 Cal. 3), Queen‑Empress v. Abdul Razzak Khan and another (I L R 21 All.109) are the decisions which, in my opinion, apply to the facts of the instance case. I am in respectful agreement with the view expressed therein and proceed to dismiss the revision petition.

K. M. A. Revision dismissed.

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