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Criminal Revision Application No. 178 of 1973, decided on 14th June 1974.
‑‑ Ss. 190 & 204‑Cognizance as taken of an offence and not of offender‑Process cannot be issued against person whose name is not known.
Cognizance is taken of an offence and not of offender. 'It is clear that process can be issued only against a person named. Process cannot be issued against a person whose name is not known.
------S, 253(2)‑Discharge of accused ‑ Person not "accused" discharged by Magistrate‑‑Order of discharge cannot put such person into position of an accused person.
A person can be discharged only if he is an accused person and if, there fore, there is an order purporting to discharge him when he is not are accused person such an order does not put him Onto the position cat an accused person.
Riaz Hashmi for Applicant.
Respondents Nos. 1 to 4 (absent).
Zafar Hussain Mirza, A.‑G. (Sind) for the State,
Date of hearing : 31st May 1974.
Ore Mohammad Usman flied a complaint in the Court of the District Magistrate, Hyderabad which was later transferred to the Civil Judge and Additional City Magistrate, Hyderabad alleging in substance that some land belonging to him bad been fraudulently and by means of forgery mortgaged with the Agricultural Development Bank of Pakistan, Tando Mohammad Khan Branch. He named four persons as accused persons besides a fifth whose name was not given but who was described as an Inspector of this Bank. A preliminary enquiry was held in the course of which the present petitioner Khurshid Ali Khan was examined as a witness and thereafter process was issued against the named accused persons. In the course of the trial when the complainant sought to examine Khurshid I, Khan the accused persons, who along with the State are the respondents in this case: objected that Khurshid Ali Khan, who is an Inspector of the Agricultural Development Bank of Pakistan was the person intended to be the accused whose name was not mentioned and there fore being an accused person, could not be examined as witness. The complainant however disclaimed all intentions of proceeding against Khurshid Ali Khan as accused person and the learned Magistrate then passed on order the earlier part of which reads thus
"The Advocate for the complainant says that Khurshed Ali is not one of the accused. The name of Khurshed Ali is not mentioned in the complaint. The Advocate for the complainant says that he has neither prosecuted Khurahed Ali nor intends to prosecute him. Khurshed Ali was examined as a witness in P. E. I, therefore do not take him as an accused person."
2. For reasons which I shall presently state I think the learned Magistrate was quite right but unfortunately he went on to add:
"If there is still any misunderstanding in this respect I order his discharge under section 253 (2), Cr. P. C. After the discharge he can and may be examined as a witness"
3. Against this order the accused respondents tiled an application lit the Court of Session for revision and the learned III Additional Sessions Judge has allowed this application and has directed a further enquiry but added the rider that if Khurshid Ali is a public servant his case may be referred by the District Magistrate to the relevant authorities.
4. The learned Judge's main reasoning is stated in the following paragraph of his judgment:
In the complaint name of Khurshed Ali has not been mentioned. It is not requirement of law that the complaint should contain names of known persons only, as accused. It can be directed against an un‑known person also in view of section 4 (h) of Cr. P. C. Order about issue of process dated 28‑3‑1967 shows that process was issued against the accused mentioned in the complaint. It appears that intention of learned Magistrate was to issue process not only against the accused whose names appeared, but also against the accused who were mentioned as the Inspector and the Secretary in the complaint. If the intention would have been otherwise, the Magistrate would have paned an order about dismissal of the complaint under section 203, Cr. P. C. in respect of the Inspector and the Secretary. The offence under section 465, P. P. C. is non‑compoundable and is cognizable offence. Hence the case against the Inspector should not have been withdrawn except under section 494 of Cr. P. C. by the Public Prosecutor."
5. Now although it is quite correct of course that cognizance is taken of an offence and not of an offender it is clear that process can be issue, only against a person named. Process cannot be issued against a person whose name is not known and it is nobody's case that any process was issued to Khurshid Ali Khan. Irrespective of the merits, therefore, of the case against him at the stage when objection was taken to his capacity to be examined as a witness Khurshid Ali Khan was not an accused before the Magistrate. It is true of course that in the course of the trial or committal enquiry the Magistrate might under section 351, Cr. P. C. have joined him as an accused person but such is not the case before me. The earlier part of the order of the Magistrate which I have quoted therefore is in my opinion perfectly correct. The question then of discharging Khurshid Ali khan did not arise at all and there was no question of any misunderstanding or a further order to remove any such. second part of the order that I have quoted, therefore appears to me a nullity and ought to be regarded as entirely superfluous. A person can be discharged only if he is an accused person and if therefore there is an order purporting to discharge him when he is not an accused person such an order does not put him into the position of an accused person.
6. In this view of the matter the reasoning of the learned Additional Sessions Judge appears to be based upon a complete misapprehension of the legal position. There was no question of any intention of issuing process as I have said, can only be issued against a. particular person. The learned Judge ought, therefore, to have ignored the second part of the Magistrate's order.
7. In these circumstances I allow this application and set aside the order of the learned Additional Sessions Judge.
Application allowed.
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