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Criminal Revision No. 107 of 1968, decided on 13th August 1968.

S. 190(1)(a) & (c)--Powers of transferee‑Magistrate‑‑‑Mere fact that case was transfer red to Magistrate for trial by Sub‑Divisional Magistrate‑Does not empower such Magistrate to take cognizance of an offence for which he is not otherwise empowered‑‑‑Sub‑Divisional Magistrate, upon complaint against three persons, taking cognizance, summon ing only two such persons and transferring case to a Magistrate for trial‑Magistrate after trial convicting both such persons-- Subsequently on prayer from complainant Magistrate holding that during trial some evidence was adduced against third (un-summoned) person and summoning such person under S. 379, P. P. C.‑Held, Magistrate, had no jurisdiction to issue summons against such un-summoned person.

Having regard to section 190 (1), Cr. P. C. only a District Magistrate or a Sub‑Divisional Magistrate has statutory powers to take cognizance of an offence. In all other cases the Magistrate has to be specially empowered on this behalf. Therefore it is wrong to say that just because the case has been transferred by the Sub‑Divisional Magistrate for trial to a Magistrate stepped into the shoes of the Sub‑Divisional Magistrate and could take cognizance of the offence.

The petitioner must be deemed to have been discharged by the Sub‑Divisional Magistrate when he refused to issue any summons against the accused‑petitioner. To hold that the transferee Magistrate has the power to issue processes against un-summoned accused would be to place hire in the position of a revisional authority over the Sub‑Divisional Magistrate.

Abdas Sattar Molla v. The Crown P L D 1953 F C 145 and Abul Hossain Sana v. Suwalal Agarwala and another P L D 1962 S C 242 fol.

Havizar Rahman v. Aminal Huque 44 C W N 1114 ref.

Mozammel Huq with Masudur Rahman for Petitioner.

Nemo for the State.

The petitioner in this case was an un-summoned accused. The learned Sub‑Divisional Magistrate while entertaining the petition of complaint summoned two accused persons and transferred the case for trial to Mr. M. P. Barua, Magistrate, 1st Class, Feni, for trial. The learned Magistrate by his judgment dated 3‑9‑1966 convicted the said two summoned accused and sentenced each of them to pay a fine of Rs. 50 each in default to suffer rigorous imprisonment for one month.

2. Subsequently on 14‑6‑1967 the complainant filed an application before the trying Magistrate Mr. M. P. Barua, praying for summoning the present petitioner. The learned Magistrate held that during the trial some evidence was adduced against the petitioner and as such the learned Magistrate summoned the petitioner under section 379 of the Pakistan Penal Code. The petitioner moved against the said order before the learned Sessions Judge. The learned Sessions Judge refused to refer the case to the High Court on the ground that the trying Magistrate Mr. M. P. Barua was not empowered under section 190 of the Criminal Procedure Code and to take cognizance of the matter. The learned Sessions Judge field as the case had been transferred to Mr. Barua he had stepped into the shoes of the Sub‑Divisional Magistrate and he was fully competent to issue process against the petitioner. Hence this revisional application.

3. This question has been vexing our Court's on several occasions. The view that the learned Sessions Judge has taken is rather novel. Section 190 of the Criminal Procedure Code reads as follows:

"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 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 order 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 Magistrate of the First or Second Class to take cognizance under sub sections (1), of offences for which he may try or commit for trial.

It would be observed from a reading of the section that only a District Magistrate or a Sub‑Divisional Magistrate has statutory powers to take cognizance of an offence. In all other cases the Magistrate has to be specially empowered on this behalf. Therefore it is wrong to say that just because the case has been transferred by the Sub‑Divisional Magistrate for trial to Mr. P. Barua, Magistrate, 1st Class, Mr. Barua stepped into the shoes of the Sub‑Divisional Magistrate and could take cognizance of the offence.

4. The next question that arises is as to what is actually meant by the word taking cognizance of the offence. In the instant case of complaint mentioned the petitioner amongst others as having the petition committed the offence. But the learned Sub‑Divisional Magistrate issued summons only against two of the co‑accused. Therefore it may be reasonably argued that the Sub‑Divisional Magistrate took cognizance of the offence as committed by the two co‑accused only. This matter was thoroughly examined by the learned Federal Court in the case of Abdus Sattar Molla v. The Crown (P L D 1953 F C 145). One of the Judges (Akram, J.) was of the view: It is also well settled now that a subordinate Magistrate to whom a case is transferred for disposal has the same power in respect of its trial as are possessed by the Magistrate who transfers the case: Havizar Rahman v. Aminal Huque 44 C W N 1114. But the majority view was to the contrary. In the judgment of Shahabud din, J. the following occurs:

"The contention that once cognizance is taken of the offence, section 190 does not apply to the case is based in the view that under that section cognizance is taken of the offence and not the offender. This view no doubt finds support in some decisions but I find myself unable to agree with it. Taking cognizance of the offence, has not been defined in the Code and from the fact that the word offender' is not mentioned in section 190, it does not follow that once cognizance of the offence is taken section 190 has no application when a person who was not an accused at the start has to be placed on trial."

Later his Lordship observed:

"There may be cases where when the offence is taken cognizance of it is not known who the offender is, and cognizance may be taken of such cases in order to take action to find out the of fender, but when the offender is found section 190 has to be kept in view in proceeding against him."

5. Mr. Justice Cornelius (as he then was), concurred with Mr. Justice Shahabuddin and after detailed discussion of the cases cited by the parties held:

"The type of cognizance relevant for the purposes of the present discussion is that which comes into play at the very commencement of a judicial proceeding. I can see no reason why, if the first judicial step constituting commencement of proceedings against a particular accused person, is taken in the course of pending proceedings against other persons, that cannot be regarded as initiation of the proceedings as against that particular person, requiring to be performed, subject to the same conditions as apply to the ordinary case under section 190. Cr. P. C."

His Lordship later concluded thus:

"The procedural requirements of the criminal law are not mere formalities. Underlying the rules of procedure is an all pervading care to ensure the liberty of the subject and the due dispension of justice. Certain observations appearing in a number of the judgments cited during the arguments in this case appear to me to be likely to defeat this purpose by undue enlargement of the powers of Magistrate on the basis of assumptions which are not well founded in law. Some of these views may be interpreted so as to enlarge the powers of a transferee Magistrate beyond those with which he is invested e.g., to take cognizance on his own information or suspicion, of an offence appearing in the course of a pending proceeding, although he is not empowered to take cognizance in this manner."

6. It should be observed that in the case of Abdus Sattar Molla processes were issued against the appellants by the trying magistrate after hearing two witnesses and before the conclusion of the trial but even in that case our Federal Court was led to observe that it was beyond the jurisdiction of transferee- Magistrate. In this case the trial has been concluded, that is, the case which was transferred to Mr. Barua has been concluded. He had thereafter become functus officio. Our Supreme Court in the case of Abul Hossain Sana v. Suwalal Agarwala and another (P L D 1962 S C 242), has held that there is no power given to the Magistrate by the Court for reviving a case after his discharge of the accused which in my opinion in the instant case the petitioner must be deemed to have been discharged by the Sub‑Divisional Magistrate when he refused to issue any summons against the accused‑petitioner. To hold that the transferee‑Magistrate has the power to issue processes against un-summoned accused would be to place him in the position of a revisional authority over the Sub‑Divisional Magistrate. In this view of the matter in my opinion the learned Magistrate Mr. M. P. Barua had no jurisdiction to issue summons against the petitioner.

The rule is therefore made absolute. The order of the learned Magistrate summoning the accused is quashed.

Rule made absolute.

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