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Criminal Miscellaneous No 3979 of 1969, decided on 15th May 1969.
S. 427 read with Conciliation Courts Ordinance (XLIV of 1961), S. 3(1)(a)‑Complaint under S. 427, P. P. C. describing damage to property to tune of Rs. 5,000‑Case, held, outside purview of S. 3(1)(a) of Ordinance.
S. A. Saeed for Petitioner.
Kh. Muhammad Asghar for the State.
Fayyaz Hussain Kadri for Respondents.
This is an application under section 439 read with section 561‑A, Cr. P. C. It arises out of the following circumstances.
The complainant‑petitioner constructed, house No. 104/HC in Habibia Colony, Dharampura, Lahore. Mazhar Qayyum, Building Inspector, Corporation, Lahore, and Muhammad Aslam his peon, it is alleged, demolished a portion of the house on the ground that the construction was illegal and unauthorised; thereby causing a loss to the tune of Rs. 5,000, whereupon, the complainant on 17th October 1966, lodged a complaint under section 427/34, P. P. C, in the Court of Cantonment Magistrate Lahore, who on the same day without examining the complainant ordered that this complaint should be referred to the Conciliation Court.
2. It is contended before me that the offence under section 427, P. P. C. where the value of the property exceeds Ids. 100 was not triable by the Conciliation Court and that the order of the learned Magistrate transferring the complaint to the Conciliation Court was illegal. Furthermore, the learned Magistrate under section 200, Cr. P. C. war required at once to examine the complainant upon oath.
3. If we advert to the language of section 3(1)(a) of Conciliation Courts Ordinance, 1961, it would be clear that the requirement of the Ordinance is that cases falling in Part I of the Schedule must be referred to conciliation tinder the Ordinance. It has also been specified in the aforesaid section that cases which fall under Part I of the Schedule must be tried by Conciliation Court constituted under the Ordinance and that no Civil or Criminal Court will have jurisdiction to try the same. This means that cases falling within Part I of the Schedule must be referred to conciliation under the Ordinance and that no Civil or Criminal Court shall rave jurisdiction to try any such case. One is, therefore, required to decide whether a particular case falls under Part I of the Schedule of the Ordinance.
4. In order to decide whether a case falls within the mischief of section 3 (1)(a) of the Ordinance, one must examine the case as a whole, and in its entirety, to ascertain its nature and character and decide upon its own facts as to whether it falls within the mischief of that section or is outside the purview. if a case does not fall within the mischief of section 3 (1)(a), its provisions would not be attracted.
5. I have stated the relevant facts of the case. The complaint is under section 427, P. P. C. wherein it has been described that the damage to the property was to the tune of Rs. 5,000. Therefore, this case is outside the purview of section 3 (1)(a) of the Ordinance.
6. For the reasons stated above, the order dated 17th October 1966 of the learned Magistrate is annulled. It is directed that the learned Magistrate should examine the complai nant and decide the complaint according to law.
Petition accepted.
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