Find a Lawyer

Criminal Revision No. 516 of 1967, decided on 14^th November 1967.

Ss. 204 & 173(3)‑ Provisions of S. 204 deal only with case where Magistrate has taken cognizance of offence‑He may issue summons or warrants according to law‑No power of discharge mentioned in section Magistrate agreeing with police report under S. 173 discharging accused‑Order of discharge cannot be considered to be one under S. 204.

Ss. 173 (3), 435 & 439‑Magistrate's order directing a case, reported to him by Police under S. 173, to be struck off ‑A judicial and not administrative order‑Such order open to revision‑Power of revision, however, would not be exercised because person aggrieved can file a private complaint if he so likes [Uma Singh and others v. Emperor A I R 1933 Pat. 242 dissented from].

When a Magistrate on a police report, under section 173 of the Criminal Procedure Code 1898, directs that a case be struck off, he acts judicially and not otherwise. Consequently such order passed by him is open to revision by the High Court. The law at the same time, however, provides a remedy to the person aggrieved to file a complaint under section 190, Cr. P. C., if he so likes and as such the order passed by the Magistrate would not be interfered with in revision.

Uma Singh and others v. Emperor A 1 R 1933 Pat. 242 dissented from.

J. D. Boywalla v. Sorab Rustomji Engineer A I R 1941 Bom. 294 ; re : Brahm Dev v. Emperor A 1 R 1938 Lah. 469 and Muhammad Niwaz v. The Crown 48 Cr. L J 774 ref.

Muhammad Yasin v. The State Petition for Special Leave to Appeal No. 273 of 1967 rel.

Ihsan‑ul‑Haq Chaudhry for Petitioner.

Asad Ali Rizvi for the State.

G. M. Mirza for Respondents Nos. 2 to 6.

Date of hearing: 6th December 1967.

This is a revision petition by one Ameer Ali, who has challenged the order dated 19‑11‑1966 of the learned trial Magistrate whereby he agreed with the report of the police, and the case under sections 406 and 420, P. P. C., against the respondents Naseer Ahmad, etc. was cancelled by him.

2. The facts of the case are that the parties floated a private limited company for manufacturing cloth under the name and style of 'Chaudhry Industries (Pak.) Limited, Jhang Road, Lyallpur in 1960. They had equal shares in the company. Owing to heavy losses the company was liquidated in 1964. The assets of the company including the land, building and machinery were divided between the parties by Mr. G. R. Akhtar, Liquidator of the Company. After the division, they started running their business independently in their own portions. It is alleged that on 25‑4‑1965, when Iftikhar Ahmad, a son of the petitioner, who was running the concern on behalf of the petitioner was away, the respondents by deceitful means took the possession of the portion of the petitioner. Common friends from the brotherhood tried to intervene between the parties, but the efforts proved fruitless. Ultimately, the petitioner reported the matter to the Factory Area Police‑Station, Lyallpur on 6‑6‑1965.

3. On the report of the police, the Circle Magistrate took proceedings between the parties under section 145, Cr. P. C. and sealed the premises.

4. The police, however, investigated the case registered under sections 406 and 420, P. P. C. On the report of the police that the matter was of a civil nature, the learned Circle Magistrate agreed with the report and cancelled the case. It is alleged that the respondent No. 1 being Member of the Local Union Committee wielded influence on the D. S. P. of the City and it was on account of this pressure that the police submitted such a report to the Magistrate.

5. Ehsan‑ul‑Haq Chaudhry, learned counsel appearing on behalf of the petitioner, argues that the order passed by the learned trial Magistrate is judicial order and can be revised under section 439 of the Cr. P. C. He also submits that the order passed by the learned Magistrate in this case is obviously one under section 204 of the Cr. P. C. In support of his submission, be relies on J. D. Boywalla v. Sorab Rustomji Engineer (A I R 1941 Bom. 294). Learned Judges of the Bombay High Court came to the conclusion that in passing an order discharging the accused and canceling the bail‑bond is a judicial order and not merely an administrative one and is open to review by the High Court. But the submission of the learned counsel that such an order is to be considered as one under section 204, Cr. P. C. is without any force. Section 204 of the Cr. P. C. is reproduced as under:‑--

"(1) 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.

(2) Nothing in this section shall be deemed to affect the provisions of section 90.

(3) When by any law for the time being in force any process‑fees or other fees are payable no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint."

This section only deals with the case where the Magistrate takes cognizance of an offence considering that there is sufficient ground for proceedings in the case. In that case, he may issue summons or warrants according to law. There is, however, no power of discharge mentioned under section 204, Cr. P. C. The inference drawn by the learned counsel from the observation made by the Division Bench. in the case referred to above, is not B' tenable. No doubt the Magistrate while considering the police report applies his mind to the facts of the case, but that power he exercises under section 173 (3) of the Cr. P. C. Cognizance section 204, Cr. P. C. is taken, if the Magistrate wishes to proceed in the case. Section 173 of the Cr. P. C. is reproduced as under:‑

"(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police‑station shall‑

(a) forward to a Magistrate empowered to take cognizance of the offence on a police‑report, a report in the form pres cribed by the (Provincial Government), setting forth the names of the parties, the nature of the information and the names of the persona, who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the (Provincial Government) the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by General or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police‑station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the com mencement of the inquiry or trial:

Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost."

6. It is clear that when a report is submitted by the police in a case recommending the discharge of the bail‑bond and filing the case, the Magistrate, if decides to agree with such a report, he passes an order under subsection (3), of this section. It is discretionary, however, for him not to agree with the report and to take cognizance in the matter under section 190, Cr. P. C., which is reproduced as under:‑

"(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 by 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.

(2) The Provincial Government, or the District Magistrate subject to the general or special orders of the Provincial Government, may empower any Magistrate to take cognizance under subsection (1), clause (a), or clause (b) of offences for which he may try or commit for trial.

(3) The Provincial Government may empower any Magis trate of the first or second class to take cognizance under subsection (1), clause (c) of offence, for which he may try or commit for trial."

7. The Bombay High Court's view that such an order of discharge is a judicial order has beep dissented by a Division Bench of the Patna High Court in Uma Singh and others v. Emperor (A I R 1933 Pat. 242). The learned Judges observed:

"The Magistrate's order directing a case reported to him by the police under section 173 to be struck off is not a judicial order. Such orders are purely administrative or ministerial and principle of auire fois acquit cannot possibly apply to them. Hence the Magistrate can reopen the case by calling for a charge‑sheet, for instance under section 190 (1) (c)."

This view was followed in a Single Bench case of this Court, re: Brahm Dev v. Emperor (A I R 1938 Lah. 469). In this case Blacher, J. held:

"An order of a Magistrate on a police report under section 1 73 that a case be struck off is an administrative order and not a judicial order and accused is not entitled to a copy of such an order as of right."

With due respects to the learned Judges of the Patna High Court, I do not agree with their Lordships observation that such an order is an administrative order because if the Magistrate has to apply his mind on the police report, he acts judicially and not otherwise. He may agree or disagree with such a report. It would certainly amount to an administrative order if he has to act mechanically and approve such an order. This is not the case. The Magistrate has to apply his mind and, therefore, in my humble view, he acts judicially in the matter. Even the C Division Bench also observed that he can proceed under section 190 (1) (c) of the Cr. P. C. They were dealing with a case in which the Magistrate earlier agreed with the police report and struck off the case, but subsequently he proceeded under section 190 (1) (c) of the Cr. P. C. The plea raised by the accused was that once he was discharged by a Magistrate, he was not liable to be retried. I am of the view that the Magistrate can proceed under section 190 (1) (a) if such a complaint is made to him in this behalf.

8. The observation of the Single Bench of this Court in Brahm Dev v. Emperor that such an order of discharge is an administrative order was made in connection with the supply of copy of such an order. It is a very small order, and the learned Judge has not considered this aspect of the case with which I am dealing in the instant case. In Muhammad Niwaz v. The Crown (48 Cr. L I 774), a Division Bench of this Court, consisting of Din Muhammad and Cornelius, JJ. (as his Lordship then was) considered subsection (3) of section 173 of the Cr. P. C. Their Lordships observed as under:

"(9) On a proper construction of subsection (3) of section 173, its provisions appear to relate exclusively to the cases provided for in section 169, i.e. where the Police Officer has released an accused person on his own bond, with or without sureties, to appear, if required by the Magistrate, and has reported that there is no sufficient evidence or reasonable suspicion against him. In the case provided for in section 170, the accused has to appear before the Magistrate either in custody or on the date fixed for his appearance in accordance with the security furnished by him for such appearance. The procedure of the Magistrate when the accused appears or is brought before him is regulated by various other sections of the Code, e.g., section 208 in a case of enquiry preliminary to commitment, section 242 where the case is a summons case and section 252 when the case is a warrant case. No provision, however, other than that contained in section 173 (3) is made in the Code for magisterial proceeding following upon a case reported by a Police Officer under section 173, in which he holds the opinion specified in section 169 and has released the accused person on his bond, to appear if and when required by a Magistrate. It will be seen that the Magistrate has been given power to make such order as he thinks fit in the case. He may direct that the bond furnished by the accused be discharged and it is obvious that such an order would be appropriate in a case in which the Magistrate agrees with the opinion of the Police Officer and considers that further proceedings are not necessary. The Magistrate, is, however, not bound by the Police Officer's opinion, and relying on the material furnished in the report, the Magistrate may, if he chooses, take cognizance of a case against the person whom the Police Officer believed to be innocent, or against other person, who may appear to the Magistrate on the basis of the report, to be guilty of an offence. It has been held in several cases that where cognizance is taken by a Magistrate of a case, on the basis of a negative report under section 173, such cognizance is taken, not on the Magistrate's own opinion or suspicion, under clause (c), but on the Police report under clause (b) of section 190 (1), Criminal P. C. Two such cases are reported as Emperor v. Dalip Singh 5 Cr. L J 275 and Sarwa v. Emperor 14 Cr. L J 290. In the present case, however, the learned Magistrate bad no power to make an order in respect of Muhammad Iqbal and Mahbub under section 173 (3), Criminal P. C. on August 23, 1945. He had already taken cognizance of the case against them, on a Police report to the effect that there was sufficient evidence against them showing that they had committed the offences charged. The case was not one where the Police had reported insufficiency of evidence or lack of suspicion. Section 173 (3) provides no power to a Magistrate to discharge an accused person, after he has taken cognizance of an offence alleged against him under section 190, Criminal P. C.

(10) It is clearly not the case that the Police were seeking to withdraw from the prosecution of Muhammad Iqbal and Mahbub and that the Magistrate being conscious of his power to grant or refuse assent to such withdrawal, granted assent. The learned Magistrate appears, on the other hand, to have misdirected himself regarding his power to proceed with the case against Muhammad Iqbal and Mahbub. He was already seized of the case, by virtue of the cognizance taken on June 15, 1945 on the basis of the Police report, dated June 10, 1945. The opinion of the police that the two accused persons were innocent, was not sufficient, to deprive the learned Magistrate of his Jurisdiction or to relieve him of the obligation imposed by the Criminal P. C., to continue the proceedings against Muhammad Iqbal and Mahbub until their proper termination as provided by law. His action in discharging the accused persons is not only not justified under the legal provisions cited by him, but is also based upon a failure through misconception to exercise jurisdiction which was vested in him. In the circumstances, the order of discharge cannot be allowed to stand, and we hereby set it aside and direct him to make further inquiry into the case of the persons discharged."

9. A similar matter was considered by their Lordships of the Supreme Court in Muhammad Yasin v. The Sate Petition for Special Leave to Appeal No. 273 of 1967. The order is reproduced as under:‑

"Investigating an allegation of murder involving 5 men including the respondent, Abdur Rahim, the Police presented a challan in which was shown that they had found no case against Abdur Rahim. The Committing Magistrate, in his order committing the other four men for trial, stated that he found no case against Abdur Rahim, and had therefore not summoned him. The complainant moved the Sessions Court and the High Court against this order without success, and now seeks leave to appeal in this Court, to oblige the Magistrate to take cognizance of a case against Abdur Rahim. The attempt is misguided. If the petitioner wishes to pursue the matter against Abdur Rahim, his proper course is to file a complaint against him, on which action by a Magistrate is obligatory under the Criminal Procedure Code."

10. In the present case, there is no doubt that the Magistrate has agreed with the report of the police and struck off the case against the respondents. The police enquiry revealed that the facts of the case disclosed a civil cause against the respondents and no criminal offence was made out. The Magistrate upheld the report of the Police and ordered the discharge of the respondents. There is no doubt in my mind that such an order is a judicial order and is open to review by this Court. The law at the same time provides a remedy to the petitioner to file a complaint under section 190 of the Criminal P. C., if he so likes. I agree with Mirza Ghulam Majadad, learned counsel appearing on behalf of the respondents, that the order passed by the Magistrate should not be interfered in revision when a remedy is open to the petitioner by way of complaint. I would, therefore, refrain from expressing my opinion on the merits of the case. The learned counsel appearing on behalf of the State also supports the respondents.

11. For the foregoing reasons, this petition fails and is hereby dismissed.

K.B.A. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.