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Criminal Revision No. 29 of 1971, decided on 1st March 1971.

Ss. 500 & 193--Contention‑ that defamatory description of petitioner as Mochi in a complaint filed against: lint in Court fell within purview of S. 193 and as such only trial Magistrate should have filed complaint under S. 476, Cr. P. C. and petitioner could not directly file complaint on that behalf for an offence under S. 500, P. P. C‑‑Held, misconceived and not sustainable in law‑‑Offence under S. 500," P. P. C. could not be taken cognizance of except on complaint of aggrieved person‑ Criminal Procedure. Code (V of 1898), S. 198.

M. Saleem Chaudhri for Petitioner.

Sh. Zamir Hussain for the State.

The facts giving rise to this case are that Syed Ishtiaq Hussain, petitioner filed a complaint under section 500, P. P. C., against'. Syed Niaz Ali respondent No. 1, on the ground that in an earlier complaint case filed by the latter he had described the petitioner as a cobbler whereas he wag actually a Syed by caste. In defence, the respondent relied on a report Exh. D. A. made by the Central record office on an application of the respondent wherein one Nathu Shah, son of Lal Shah, an alleged ancestor of the petitioner, was described as a Mochi. This report appears to have been relied upon by the Collector in a Lambardar case, in a judgment, dated the 3rd of January 1963, (Exh. D. B.). However, having regard to the evidence on the record before him the learned trial Magistrate convicted the respondent under section 500, P. P. C., with an award of a fine of Rs. 100 or one month's imprisonment in default of payment thereof. The respondent challenged this order in the Court of the Addl. Sessions Judge, Sargodha, who took the view that the alleged offence committed by the respondent by mis-describing the petitioner as a Mochi fell within the purview of section 193, P. P, C. and as such the learned trial Magistrate should have filed a complaint in writing under section 476, Cr. P. C. These provisions of law having been by‑passed according to the learned Addl. Sessions Judge, the trial Magistrate had‑no jurisdiction to take cognizance of the private complaint filed by the petitioner. Accordingly he set aside the order and acquitted the respondent. Feeling aggrieved the complainant petitioner has preferred the present revision.

2. As indicated in this Court's admitting order dated the 12th of February 1971, according to the learned counsel for the petitioner, the learned Addl. Sessions Judge had taken an erroneous view of the matter inasmuch as under section 198, Cr. P. C. no Court could take cognizance of an offence under section 500, P. P. C., except on a complaint by the aggrieved person: It was further contended that even otherwise the alleged mis-description of the petitioner in the complaint filed by the respondent constituting an offence under section 50J, P. P. C. had already taken place before the Court took cognizance of the matter. This last point obviously has no force.

3. The petitioner. is represented by Mr. M. Saleem Chaudhri Advocate, while the State is represented by Sh. Zamir Hussain, Advocate, Syed Niaz Ali, respondent No. 1 to whom notice was issued through the S. P., Sargodha, on the 16th of February 1971: as such may be presumed to have been duly served, is not present.

4. Having heard the learned counsel for the parties, I am clearly of the view that the order passed by the learned Addl. Sessions Judge is wholly misconceived and cannot be allowed to sustain on the ground urged on behalf of the petitioner which certainly have considerable force as also conceded by the learned counsel for the State. Accordingly; I allow this petition, set aside the impugned order and remand the case to the learned Sessions Judge, for a fresh decision on merits with notice to the parties.

Petition allowed.

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