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Criminal Revision No. 667 of 1967, decided on 16th April 1969.

-- Complaint‑Petitioner addressing petition to High Court requesting to call upon respondent (a Superintendent of Police) not to report any cases against him and stating that in case he was murdered respondent would be responsible for crime‑Both accusations, held, did not disclose any penal offence‑Some other matters stated in application already under examination of police or District Magistrate‑Additional District Magistrate reopening such matter, treating application as complaint and recording evidence‑Additional District Magistrate, held, acted without lawful authority.

Seshayya v. Balijepalli Subbarayudi alias Subba Rao A I R 1925 Mad. 1157 ; Bharat Kishore Lal Singh Deo v. Judistir Ylodak A I R 1929 Pat. 473; R. C. P. Guigrand v. The State P L D 1963 Kar. 868 and Azizur Rahman and others v. The State P L D 1960 Dacca 1054 ref.

Baburao Tatyarao v. Emperor A I R 1936 Bom. 379 rel.

Ali Raza for Petitioner.

Ijaz Hussain Batalvi for the State.

Qutab Shah petitioner addressed a letter to the Chief Justice of West Pakistan High Court, Lahore, making certain allegations Against Malik Sher Ahmad Gheba, one of the respondents, who at that time was Superintendent of Police, Gujrat. The letter reads as follows :‑

"Most respectfully I beg to submit these following few lines for favourable consideration please :‑

(1) That I held a registered power‑of‑attorney of Malik Sher Ahmad Khan about 16 years (Mitha Tiwana) at present as Superintendent of Police, Gujrat. I gave of his service during August 1961, and constructed my pucca houses and well at Mitha Tiwana. In village Mitha Tiwana my property situat d was more than Rs. 1,000,00.00 (One Lakh).

(2) Malik Sher Ahmad Khan on 16th August 1962 arranged firing upon me through his servants named Allah Yar and Qazi Faiz Muhammad, but by sheer good luck I escaped uninjured. Accordingly under section 307 was recorded by the police and challaned him in the Court. The Deputy Inspector, Inspector‑General of Police and the Superintendent of Police, Sargodha, were friends of Malik Sher Ahmad, therefore, availing leave vlr. Malik Sher Ahmad Khan came to Sargodha from Zaffargarh and exercising his influence prepared a false allegation against me under sections 19, 11, 78 and I was falsely accused murderous attempt under section 40, F. C. R. Thus.filing three false suits against me I was put in .jail, where I remained for 8 months, but latter on after 8 months I was acquitted by the Court. As a matter of fact '303 ri'e was possessed by Malik Sher Ahmad Khan, as he himself held a licence for it from Jacobabad and then himself got the licence cancelled and since thereafter possessed the rifle, and as a plaintiff registered a false case against me at Police Station Mitha Tiwana on 27th August 1962, but the Halqa Magistrate acquitted me on 10th December 1962, but subsequently I was subjected to observation, on 6th June 1963. I was acquitted by the District and Sessions Judge, Sargodha.

(3) Subsequently Malik Sher Ahmad got me confined in the Jail and took over possession of my property by influence, force, and salotage by employing tractors and storing two hundred men demolishing my houses and well. He removed all the building material and levelled the well. He also ,looted my household goods. Now Malik Sher Ahmad Khan is in unlawful possession of my all property, with regards to which the case is in the Court of the Deputy Commissioner, Sargodha. The Deputy Commissioner, Sargodha, is also inquiring into the false and fabricated cases that were filed against me by Malik Sher Ahmad Khan. As I apprehend danger to my life from Malik Sher Khan, therefore, I have already lodged a complaint to this effect in Police Station Mitha Tiwana. At present Malik Sher Ahmad Khan is posted as Superintendent of Police at Gujrat. He is trying again to get me challaned under the Arms Act for having the same rifle as unlicensed through Sialkot Police.

It is, therefore, requested and humbly prayed that Malik Sher Ahmad Khan may please be directed to refrain from lodging any false malacious complaints against me. He is trying me murdered. If I am murdered, the said Sher Ahmad would be the man getting me murdered."

This letter was received in the High Court on 19th November 1963. The Registrar of the High Court of West Pakistan, Lahore, on 25th November 1963, forwarded it for disposal to the District Magistrate, Sargodha. The Uistrict Magistrate on 7th January 1964, marked it to Mr. C. A. Saeed, Additional District Magistrate, Sargodha, for disposal. The Additional District Magistrate on 17th January 1964, registered it as a complaint and summoned the petitioner for I st January 1964, for recording his evidence, but he did not appear. The Process Server had made a report dated 29th January 1964, to the effect that Qutab Shah in the presence of two witnesses had refused to accept service, but even then he had left a copy of the summon with him. This report was supported by the affidavit of the Process Server. On 3rd February 1964, the Additional District Magistrate passed an order to the effect that the petitioner was not present, that according to the report he had refused to accept service, and that a registered notice be sent to him in which it must be mentioned that his application which he had made against Malik Sher Ahmad Gheba had been received from the High Court for inquiry, and that in that connection his statement was required. The petitioner was asked to appear on 18th February 1964. On that day the petitioner again absented himself. The case was not taken up by the Additional District Magistrate, because he was busy in some other work. His Reader passed an order summoning the petitioner for 4th March 1964. On 4th March 1964, the petitioner appeared and the Additional District Magistrate recorded his statement in which he reiterated the allegations originally made in the application addressed to the Chief Justice of the High Court of West Pakistan, Lahore. On 25th March 1964, the Additional District Magistrate started' recording the statements of petitioners' witnesses, which he completed on 2nd April 1964. In all he recorded the statements of eight witnesses. On 14th April 1964, an application on behalf of Malik Sher Ahmad Gheba one of the respondents, was filed before the District Magistrate, Sargodha, praying for the transfer of the case. The District Magistrate on that applica tion passed an order in the following terms :‑

"The Additional District Magistrate to submit the papers to me."

The Additional District Magistrate on 17th April 1964, passed an order on the file that the matter was fixed before him for consideration on that day and since the file had been sent for by the District Magistrate, he was sending it to him. He did not pass any order that a prima facie case had been made out against Malik Sher Ahmad Gheba and the other respondents. On the same day the Additional District Magistrate sent the file along with his letter in which he traced out the history of the case how it came to him, that he had treated it as a complaint and had recorded the statements of Qutab Shah, petitioner, and eight of his witnesses, and that on 17th April 1964, the case was fixed for consideration. In that letter he also mentioned the following :‑

"I have given profound consideration to the evidence produced by Qutab Shah against the said officer. From the evidence on the record a prima facie case under sections 452/ 392/460/148/149, appears to have been made out against Malik Sher Ahmad, Allah Yar, Ghulam Qadir Patwari, Fateh Muhammad Tirkhan, and Yousaf mentioned in the complaint of Qutab Shah."

The District Magistrate on 7th June 1964 passed an order which reads as follows :‑

"Incidents are two years old. The witnesses are all interested due to party faction in the village. Prosecution under these circumstances will only cause harassment, especially when Mr. Gheba is a serving officer and has been staying mostly outside the district. Papers may, therefore, be filed."

Against that order Qutab Shah petitioner has preferred this revision, which was received by this office on 18th August 1965 and came up for hearing on 18th October 1965. To begin with I may say that this petition was filed after about 12 years of the pas sing of the impugned order. The usual period of limitation for filing such revision petitions is 90 days. Though this petition is belated one and can be thrown out on that score alone, yet I proceed to decide the same on merits.

2. From the perusal of the letter sent by Qutab Shah petitioner to the High Court f find that the first para. as well as the first part of the second para. of the letter sent to the High Court, deal with the previous litigation and criminal prosecution between the parties which was either finished or cub judice before the District Magistrate. The only request for which an action has been called for by the petitioner is in the latter part of second para. and the third para. which read as follows :‑

"3. As I apprehend danger to my life from Malik Sher Ahmad Khan, therefore, I have already lodged a complaint to this effect in Police Station Mitha Tiwana. At present Malik Sher Ahmad Khan is posted as Superintendent of Police at Gujrat. He is trying again to get me challaned under the Arms Act for having the same rifle as unlicensed through Sialkot Police.

It is, therefore, requested and humbly prayed that Malik Sher Ahmad Khan may please be directed to refrain from lodging any false and malacious complaints against me. He is trying me murdered. If I am murdered the said Sher Ahmad would be the man for getting me murdered."

The learned counsel for the respondents, therefore, contended that there was no allegation that an offence had been committed for which the Magistrate should have taken action under the Code of Criminal Procedure. In this connection he made a reference to section 190, Cr. P. C., which reads as follows :‑

"(1) Except as hereinafter provided, and . . . , 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 Magistrate of the first or second class to take cognizance under subsection (1), clause (c) of offences for which he may try or commit for trial."

He also contended that the original letter of Qutab Shah sent to the High Court could not be treated as a complaint, as defined

under section 4 (h) of the Code of Criminal Procedure, which reads as follows :‑

"(h) Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."

In other words a complaint must state the facts which constitute an offence. In support of his arguments he placed reliance on cases Seshayya v. Balijepalli Subbarayudi alias Subba Rao (A I R 1925 Mad. 1157) and Bharat Kishore Lal Singh Deo v. Judhistir Modak (A I R 1929 Pat. 473). In case Seshayya v. Balijepalli Subbarayudi alias Subba Rao it was held :‑

"That a complaint generally ought to contain particulars of the offence with which a man is charged. Though in the Indian procedure there is no such thing as a regular indictment as in the English procedure, yet a complaint ought to contain sufficient particulars as to the offence with which a man is charged."

In Bharat Kishore Lal Singh Deo v. Judhistir Modak it was observed :‑

"The mere fact that a document in writing contains an allegation that a specific offence has been committed does not necessarily constitute that document a complaint. The allegation of the specific offence must be with a view to action being taken under the Code, i.e., for the prosecution of the offender for having committed the specific offence. Besides, it must be made to the Magistrate in the judicial capacity so that he may exercise his powers of taking cognizance of that specific offence and proceed in respect of it against the person accused.

Where, therefore, a petition clearly shows that the object of the petition is not that the particular offence should be punished, but rather the mention of the particular offence is put in with a view to illustrate the kind of conduct which accused person is supposed to be following and against which the petitioner is seeking protection, such a petition is not a complaint. What is supermost in the mind of the petitioner is the anticipated conduct of the person whom he mentions and against that conduct he is asking the Magistrate in his executive capacity to make inquiry and protect him against a repetition of such conduct."

It was further observed :‑

"While considering section 190, it cannot be treated that the three alternatives upon which a Magistrate may take proceedings are mutually exclusive. It is not correct that a Magistrate while taking cognizance of an offence should have done it under some one of the alternatives to the exclusion of the other."

According to the learned counsel the operative part of the so‑called complaint is that the petitioner apprehended danger of his life from Malik Sher Ahmad Gheba and that if he was murdered, Malik Sher Ahmad Gheba would be responsible for it. It does not state the facts which constitute an offence which were supermost in the mind of the petitioner in the anticipated conduct of Malik Sher Ahmad Gheba against whom he wanted action to be taken. According to the learned counsel, therefore, this cannot be treated as a complaint and as such it did not come within the purview of subsection (1), clause (a) of section 190, Cr. P. C.

3. The learned counsel also contended that it did not come within the purview of subsection (1) clause (b) of section 190, Cr. P. C., because it is not a report by the police officer.

4. Lastly the learned counsel contended that as the alleg ations made in the operative part of the letter are so vague, no cognizance of an offence can be taken even under section 190(1)(c), Cr. P. C. In support of this view he relied on the case R. C. P. Guingnard v. The State (PLD 1963 Kar. 868) wherein it was observed :‑

"Information received from any person or knowledge or suspicion of the Magistrate upon which he proposes to take cognizance under section 190(1)(c) is not to be vague in nature but has to definitely establish prima facie that an offence has been committed."

5. The learned counsel for the petitioner argued that the statements of the petitioner and his witnesses did make out a case against the respondents and, therefore, the order of the District Magistrate summarily dismissing the complaint should be set aside. This contention was repelled by the learned counsel for the respondents on the ground that when the Additional District Magistrate could not take cognizance of the complaint, his recording of the statements of the complainant and his witnesses on oath was gratuitous exercise supported by illegal provisions and should be disregarded by law. In support of his contention he placed reliance on the cases Azizur Rahman and others v. The State (PLD 1960 Dacca 1054) and Baburao Tatyarao v. Emperor (A I R 1936 Bom 379). In Azizur Rahman and others v. The State it was observed :‑

"Section 200 of the Criminal Procedure Code, 1898, makes it ,clear that the examination of the complainant can only succeed and not precede the taking of cognizance, for, it is an act to be done after the taking of cognizance of whatever might be the meaning of the word cognizance. When therefore, a Magistrate receives a complaint and takes cogniz ance thereof under section 190(a) of the Code and then examines the complainant under section 200, then the only inquiry or investigation that he can order is one under section 202, and not under section 156 (3) of the Code. He may, if he wishes to direct the investigation under section 156(3). of the Code, not take cognizance but send the complaint direct to the police for investigation ; but where he has examined the complainant and taken cognizance, the investigation can only be under section 202, and in those circumstances the submission of a charge‑sheet is without jurisdiction, for, there must then be a report to that Magistrate who must himself dispose of the complaint either under section 203 or 204 of the Code."

In Baburao Tatyarao v. Emperor it was observed :‑

"The expression taking cognizance of an offence' in. section 190, deals with a matter of a purely technical nature. Cognizance is usually taken upon complaint when process. is issued, but no restricted interpretation can be given to that expression in the consideration of the character of the action of a Magistrate at any particular stage of the proceeding before him. But from the terms of section 190, cognizance is taken upon issue of process before evidence is recorded, it is the complaint therefore which gives jurisdiction to the Magistrate. Consequently when under the provisions of section 254, the Magistrate thinks upon the evidence heard that a charge different from the one indicated by the complaint should be framed, he does not take cognizance under section 190(l)(c), for the power to frame charge in a warrant case of the offence disclosed is inherent in the jurisdiction assumed by the Magistrate upon the original complaint."

6. In the light of the above judgments I have carefully examined the letter sent by Qutab Shah petitioner to the High Court. At the maximum the petitioner in his letter wanted the High Court to call upon Malik Sher Ahmad Gheba not to report any cases against him and in case he (the petitioner) was murdered. Malik Sher Ahmad Gheba would be responsible for the crime. In that matter there was no jurisdiction with the High Court on the administrative side calling upon Malik Sher Ahmad Gheba not to register cases against the petitioner. The last part, dealing with this aspect, was just an information with which the High Court was not concerned. Both these accusations did not disclose any penal offence and as the other matters stat ed in the application were already under examination by the local police of the District Magistrate, therefore, the Additional District Magistrate had no authority under law to reopen the issues, some of which were closed and some were under examination by the police or the District Magistrate. As such the Additional District Magistrate acted without lawful authority in entertaining' the application as a complaint and recording evidence and when asked by the District Magistrate to submit the file on the application of the attorney of Malik Sher Ahmad Gheba, wherein allegations of direct enmity of the Additional District Magistrate with Malik Sher Ahmad Gheba were alleged, the Additional District Magistrate hastened to say in the letter addressed to the District Magistrate that certain offence were made out, though on the judicial file after closing the evidence, he had not given any such finding. The reference to the offences in the letter addressed to the District Magistrate were made when in fact he was asked by the District Magistrate submit the file to him in view of the allegations made against him. In other words the propriety demanded that he should not have made any reference to the offences in the letter and should have sent the file as it was. This shows undue zeal on the part of the Additional District Magistrate.

7. The upshot of the whole discussion is that the original application of the petitioner did not disclose any offence of which cognizance could have been taken under section 190, Cr. P. C. Therefore, this petition has no substance and is dismissed accordingly.

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