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Criminal Revision Application No. 57 of 1954, decided on 20th September, 1954.
Ss. 204, 246 and 254-Accused summoned under one section may be convicted or charged under any other section of lain which from evidence he appears to have committed-Complaint not to be deemed to have been dismissed as regards offence f or which Magistrate had not issued summons under S. 204, Cr. P. C.
Ss. 6 and 7--- Governed by S. 15.
Once dismissed cannot be revived by the same Court-Power of revival rests with revising Courts-Fresh complaint cannot relate back to one dismissed before.
A complaint once dismissed cannot be revived by the same Court. The power rests with the Revising Courts, viz, the Court of District Magistrate or Sessions Court; and till the order of dismissal is revised no action can be taken on that complaint.
The remedy of the complainant against the order of dismissal is two-fold. He can tale the matter before the Revisional Court or file a fresh complaint before the same Magistrate, to the entertainment of which there is no bar, provided, of course, the Court has jurisdiction to entertain direct complaints. But, in that case, the proceedings will start afresh on the new complainant and do not on the one already dismissed. The Code of Criminal Procedure contain: no provision for restoration of a complaint dismissed under section 204 (3) or when the accused is discharged under section 259 Cr. P. C.
It is therefore clear the complaint filed under sections 6 and 7 of the Merchandise Act on 5th November, 1953, cannot be treated as a continuation of the complaint filed on 2nd November, 1950. The period of limitation (3 years within which a complaint under these sections must be brought) is to be computed with reference to the day each complaint is filed. The fourth complaint filed on 5th November, 1953, therefore was obviously time-barred.
Dismissed for default or under S. 204 (3) Cr. P. C.---Fresh complaint competent but discretion to entertain must be exercised judiciously and not capriciously-Fourth such complaint regarded as an abuse of process of Court.
Ormand, assisted by Raymond, for Applicants.
Advocate-General, for Crown.
Muhammad Ali Sayeed for Respondent No. 1.
-This is a revision application filed under sections 435, 439 and 561A Cr. P. C. for setting aside the order of the City and Additional District Magistrate, Karachi, and also to quash the proceedings now pending in that Court.
The facts leading to this application are these:
On 2nd November, 1950, a complaint was filed in the Court of the City and Additional D. M., Karachi, under sections 6 and 7 of the Indian Merchandise Act and sections 482, 486 and 487 of the P. P. C. against the applicants.
The learned Magistrate without holding preliminary enquiry, ordered issue of process for offences under sections 482, 486 and 487 P. P. C.
On 14th April, 1951, the case was transferred to the Court of Additional City Magistrate (Mr. Naimuddin). The learned Magistrate ordered the complainant to file a list of witnesses as the complaint did not contain names of any and fixed the case for hearing on 5th May, 1951. On that date, the list which was to be filed within 3 days, not having been filed, the Court passed the following order and adjourned the case to 2nd June, 1951.
" .. Complainant should now positively file his list of prosecution witnessess, with process fee within three days. Summons be issued to the P. Ws. on the list being filed as ordered. This is now the last adjournment allowed to the complainant. No further adjournments will be allowed on any frivolous grounds in future. . ."
Even after this order, no list was filed and, instead, an application was made to the City Magistrate and Additional District Magistrate on 29th May, 1951, for the transfer of the case for which notice returnable on 2nd June, 1951, was issued to the applicants.
On 2nd June, 1951, the Additional City Magistrate in view of the transfer application adjourned the case to 23rd June, 1951, directing the parries to appear before him on 11th June, 1951, in case the transfer application was disposed of on 8th June, 1951, when it was fixed for hearing.
On 11th June, 1951, the complainant did not appear before the Court although the transfer application was rejected on 8th June, 1951. The learned Magistrate therefore discharged the applicants under section 259 Cr. P. C.
On 12th June, 1951, the complainant filed a fresh complaint in the Court of the City Magistrate and Additional City Magistrate which Court forwarded the same to the 9th Additional City Magistrate for disposal ; and the latter, after sending for the papers from the Court of the 7th Additional City Magistrate issued summons against the applicants for offences under sections 482, 486 and 487 P. P. C.
On 8th August, 1951, an application under section 205 Cr. P. C. was made but the same was rejected by the learned Magistrate.
Against this order a revision application was filed in this Court and the same was admitted to regular hearing and the proceedings in the lower Court were stayed. Subsequently, on a transfer application of the applicants, the case was transferred to the file of the 7th Additional City Magistrate for disposal. The papers were received by him on 14th February, 1952. The case was postponed from time to time till 24th May, 1952, when the Court directed the respondents to file a list of witnesses within 3 days with costs and the case was postponed to 21st June, 1952. As the respondents did not pay costs, the learned Magistrate dismissed the complaint under section 204 (3) Cr. P. C. and discharged the appli cants.
Then, on 24th February, 1953, fresh summons were received by the applicants in respect of offences under sections 482, 486, 487 P. P. C. and sections 6 and 7 of the Pakistan Merchandise Act.
This was on a fresh complaint filed by the respondents on 1st August, 1952. It had been filed in the Court of the City and Additional District Magistrate who, on 13th September, 1952, ordered the same to be sent to the 7th Additional City Magistrate for disposal. In the latter Court, the matter was adjourned from time to time on one or the other ground. On 3 hearings, viz., 26th May, 1953, 17th June, 1953, and 11th July, 1953, the respondent did not put in appearance but submitted medical certificates each time mentioning different illnesses.
On 4th August, 1953, when the matter was fixed for hearing, the respondent again remained absent and the learned Magistrate, holding that he was deliberately keeping himself absent in order to cause harassment to the accused, dismissed the complaint under section 259 Cr. P. C. and discharged the accused.
Again, on 5th November, 1953, a fourth complaint was filed in the Court of the City and Additional District Magis trate, Karachi. An application was filed on behalf of the applicants on 28th November, 1953, requesting the Court to dismiss the complaint as in view of the provisions of section 15 of the Merchandise Act, it was time-barred, having been filed 3 years after the commission of the offence.
The learned Magistrate rejected this application by his order dated 4th March, 1954. It is against this order that the present revision application has been filed.
None of the above facts has been questioned on behalf of the respondent. Two points are raised by the learned counsel for the applicants. (1) that the complaint filed on 5th November, 1953, must be deemed to have been dismissed in respect of offences under sections 6 and 7 of the Merchandise Act, as the learned Magistrate . did not issue process against the applicants under those sections, (2) , that the complaint having been filed 3 years after the alleged offence, is time barred in view of section 15 of the Merchandise Act which prescribes a limit of 3 years for filing a complaint.
As for point No. 1, we find no substance in it. Once a Court takes cognizance of an offence, it is open to it to subsequently charge the accused with any offence, that, from the evidence brought on record, appears to have been commit ted ; and it makes no difference if the Court has not issued process for those offences in the first instance when the com plaint was filed.
The order issuing or refusing to issue process under a particular section mentioned in the complaint, is not a judgment and it is always open to the Magistrate to frame charge under sections under which he had not issued processes, if, in his opinion, the evidence brought on record discloses those offences. He has jurisdiction to proceed against the accused even for offences not mentioned in the complaint.
The powers of the Court in this behalf are unfettered and they can be exercised even -in respect of complaint governed by section 195 Cr. P. C. and the trial Court can proceed against the accused in respect of offences not mentioned in the complaint filed by a public servant or Court.
As for point No. 2, we however find there is considerable force in it and we agree with the contention of the learned counsel for the applicants that the order of the lower Court refusing to dismiss the complaint as being time-barred under section 15 of the Merchandise Act, is wrong.
The order sought to be revised rests mainly on the ground that -section 15 of the Act has no application to sections 482, 486 and 487 of the P. P. C. under which the process was issued, as section 3 of the Merchandise Act under which these sections of the Penal Code were amended in their present form, was itself repealed by section 2 of the Repealing Act I of 198.
The learned Magistrate seems to be of the view that sec tion 3 of the Act is repealed with retrospective effect, cancel ling all that was done under that section. Sections 3 and 4 of the Repealing Act 1 of 1938 are a complete answer. By virtue of these sections, the amendment of sections 482, 486 and 487 is left intact, although section 3 of the Merchandise Act under which the amendment was introduced, no more exists ; and this is further clear from the fact that these sections still find place in the Penal Code in their amended form.
It is argued on behalf of the respondent that sections 6 and 7 of the Merchandise Act are not covered by section 13 of the same and therefore section 15 which relates back to section 14 which itself relates back to section 13 has no application to sections 6 and 7 of the Act. Sections 14 and 15 are reproduced in the order of the lower Court and it is not necessary to reproduce them here.
Section 13 reads as follows:---
"In the case of goods brought into British India by sea, evidence of the port of shipment shall, in a prosecution for an offence against this Act or section 18 of the Sea Customs Act, 1878, as amended by this Act, be prima facie evidence of the place or country in which the goods were made or produced."
All that this section says is that in case of offences in respect of articles brought by sea, the evidence of the Port of ship ment shall be prima facie evidence of the place or country in which the articles were made or purchased.
The section by no means restricts the operation of this Act to the offences in. respect of goods brought by sea. Had it been so, the words 'in a prosecution for an offence against this Act would be meaningless.
This section, according to us, merely prescribes a mode of proving the origin of the goods brought by sea. It is in conceivable that the legislature by introducing section 13 had in mind to draw a distinction between offences in respect of goods brought by sea and those not brought by sea. It will also be illogical that an Act while prescribing time limit for offences under another Act (in this case Penal Code) does not make similar provision for offences committed under it.
In fact section 14 itself does not wholly relate back to section 13. It refers to prosecution for offences mentioned in section 13 and also to prosecution against sections of the Penal Code as are amended by section 3 of the Merchandise Act.
The learned Advocate-General is right in arguing that section 13 applies to all offences under this Act.
It appears from the order sought to be revised that on behalf of the complainant it was also argued before the learned Magistrate that the complaint filed on 5th November, 1953, was a continuation of the complaint filed on 2nd November, 1950, the latter having been revised by the Magistrate. The order does not contain any comment on the learned Magistrate on this contention of the complainant nor does it contain any argument of the other side against it. But, it appears from the last para of this order that the learned Magistrate has accepted this contention. We think he was nor right in doing so. A complaint once dismissed cannot be revived by the same Court. That power rests with the Revising Courts, v.z,, the Court of District Magistrate or Sessions Court ; and till the order of dismissal is not revised no action can be taken on that complaint.
The remedy of the complainant against the order of dismissal is two-fold. He can take the matter before the, Revisional Court or file a fresh complaint before the same Magistrate, to the entertainment of which there is no bar provided, of course, the Court has jurisdiction to entertain direct complaints. But, in that case the proceedings will start afresh on the new complaint and not on the one already dismissed. The Code of Criminal Procedure contains no provision for restoration of a complaint dismissed under section 204 (3) or when the accused is discharged under section 259 Cr. P. C.
It is therefore clear the complaint filed on 5th November, 1953, cannot be treated as a continuation of the complaint filed on 2nd November, 1950. The period of limitation is to be computed with reference to the day each complaint is filed. The fourth complaint filed on 5th November, 1953, therefore is obviously time-barred.
For all these reasons we set aside the order of the lower Court and quash the proceedings. The Respondent Abdul Sattar is directed to pay Rs. 300 to the applicants by way of costs.
In view of the facts and circumstances stated above we find it impossible to part with this matter, without expressing our disapproval of the way in which process of Court has been used.
The learned City and Additional District Magistrate has shown readiness to issue process whenever the complainant chose to come before him, and it made no difference to him whether he came 11 months or 3 months after the dismissal of his complaints. He must issue process even after it was held that the complainant was deliberately keeping himself absent in order to harass the accused. This way of dealing with the process of Courts will by no means enhance the reputation of the Magistracy which should be so dear to Courts and which is so vital for the administration of justice.
No doubt, there is no bar to the entertainment of a second complaint after the first is dismissed. In fact there is a full bench decision of this Court on the point Sh. Harbai v. Raya Premji and another (I L R 1940 Kar. 74), wherein, it has been held that it is competent for a Magistrate to entertain a second complaint upon a statement of facts which constituted a first complaint which has been dismissed for default under section 203 Cr. P. C. or in which accused has been discharged under section 259 Cr. P. C. But, what we want to emphasise is that this jurisdiction has to be exercised judiciously and not capriciously.
A. H. Proceedings quashed.
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