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Criminal Miscellaneous No. 5260 of 1968, decided on 13th March 1969.

S. 561‑A read with Ss. 173 & 190(1)(a), (c)‑Magistrate not satisfied with Police report recommending discharge of accused‑Cannot direct Police to re‑investigate case and submit a challan‑Magistrate can, however, take cognizance of offence either under clause (a) or clause (c) of S. 190 (1).

Venkata Subba Rao v. Naraharisetty Anjanayulu A I R 1932 Mad. 673 ; Shukadeva Sahay v. Hamid Mian I L R 7 Pat. 561 and State of Kutch v. Hussain Budhgar Dharamgar A I R 1954 Kutch 26 ref.

Abid Hassan Minto for Petitioner.

Malik Abdul Hamid for the State.

On 13th April 1968 Ch. Muhammad Aslam, Assistant Sub- Inspector Rangers, West Pakistan, Lahore, on receipt of intelligence report raided the house of the father of Khizar Hayat petitioner and recovered 1235 maunds of Munji at the pointing of Muhammad Ramzan, an employee of Khizar Hayat petitioner. Since the stock of the Munji had not been formerly declared and that neither Khizar Hayat petitioner nor his servant Muhammad Ramzan were authorised dealers. Ch. Muhammad Aslam, A. S. I. got a case registered against them under section 3(6) of the West Pakistan Foodstuffs (Control) Act, 1958 and section 3(5) of the West Pakistan Food-grains (Licensing Control) Order, 1957. On 4th June 1968, the police put up a final report under section 173, Cr. P. C. recommending that no case bad been made out against the petitioner and the co‑accused and that they should be discharged. This report was sent to the Deputy Superinten dent of Police, who vide his note dated 26th July 1968 recommended that the case be cancelled. On 30th July 1968, the Superintendent of Police, Gujranwala, made an endorsement on that report that the case should be cancelled. On 30th August 1968 the Ilaqa Magistrate passed an order that this was not a fit case for cancellation and directed the S. H. O. Sukheke to put up a challan against the petitioner and the co‑accused, Muhammad Ramzan. This order, in fact, amounted to a direction to the police to re‑investigate the case and then submit the challan. Against that order the petitioner, Khizar Hayat, has filed the present petition under section 561‑A, Cr. P. C. praying that the order of the learned Magistrate be quashed.

2. On going through the West Pakistan Foodstuffs (Control) Act, 1958, I find that there is no subsection (6) of section 3 of the said Act. Probably section 3, read with section 6 of the Act was meant. Similarly I find that there is no subsection (5) of section 3 of the West Pakistan Food-grains (Licensing Control) Order, 1957. The only section applicable is section 6 and, therefore, this appears to be a mistake. The learned counsel for the petitioner contended that there was no provision in the Code of Criminal Procedure whereby a Magistrate could direct the police to re‑investigate the case and submit a challan. In support of his contention the learned counsel relied on cases:

Venkata Subba Rao v. Naraharisetty Anjanayulu A I R 1932 Mad. 673.

Thukadeva Sahay v. Hamid Mian I L R 7 Pat. 561.

State of Kutch v. Hussain Budhgar Dharamgar A I R 1954 Kutch 26.

In case Venkata Subba Rao v. Narahariselty Anjanayulu a complaint of kidnapping had been originally made to the police who sent a referred charge sheet to the Magistrate, who ordered the police to put in a charge‑sheet. In reply to this the police again put in a referred charge‑sheet ; meanwhile the Magistrate who passed the order directing a charge‑sheet to be put in was succeeded by another. The latter agreed with the police and directed the case to be treated as one of a civil nature. An application to revise this order was made before the Sessions Judge who ordered further inquiry into the complaint. Held:

"That the first order directing the police to put in a charge -sheet was illegal and so the police were entitled to put in another referred charge‑sheet. The Magistrate not having taken cognizance of the case the Sessions Judge had no jurisdiction to revise the order under section 436. The Magistrate's acceptance of the referred charge‑sheet though it involved an application of his mind to it did not amount to his taking cognizance of the offence."

It was also held:

"Although section 173 which deals with the final report of the police, does not appear to contemplate anything but a report which leads to trial if the Magistrate approves of it, neverthe less, as the police must send a report after investigation in every case, there is no other section under which a referred charge‑sheet after investigation can be brought. Section 173 does apply to a referred charge‑sheet."

In case Shukadeva Sahay v. Hamid Mian it was held :‑

"Where a recommendation that no proceedings be taken against the accused person, is submitted to the Sub‑Divisional Magistrate under section 173, Criminal Procedure Code, and the latter refuses to take cognizance of the alleged offence under section 190(1)(b), the District Magistrate has no power to direct the police to submit a charge‑sheet in the case, and if he does so, the order is revisible by the High Court."

In case State of Kutch v. Gusian Budhgar Dharamgar it was observed :‑

"Thus the weight of Judicial authority is in favour of the view that a Magistrate to whom a final report is submitted has no right to direct the police to re‑investigate and submit a charge‑sheet. The learned Magistrate has therefore clearly erred in directing the police to re‑investigate the case and to submit a charge‑sheet. It is true that the police had asked for B' Summary and the Magistrate was of opinion that the case was not false. In such a case, the Magistrate should have taken cognizance of the case and either inquired into it himself or issued a process for trial."

From the above authorities it is clear that if a Magistrate is not satisfied with the police report he cannot direct the police to re‑investigate the case and submit a challan. If he himself was of the view that it was not a fit case for cancellation, he could have taken cognizance of the offence either under section 190(1)(a), Cr. P. C. or under section 190(1)(c), Cr. P. C.

3. In the result I accept the petition end set aside the impugned order of the learned Magistrate.

Petition accepted.

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