Find a Lawyer

Criminal Revision No. 560 of 1966, decided on 21st February 1977.

‑‑‑ S. 202---‑Preliminary enquiry‑Section 202 contemplates only one preliminary enquiry‑Directing a second enquiry in presence of one already made‑Held; Not warranted.

‑‑--S. 202‑Natural justice, principle of‑Preliminary enquiry entrusted to Police agency, against whom a positive complaint of collusion with respondents made‑Procedure adopted, held, against principle of natural justice ‑[Natural justice, principles of]

Nemo for Appellant.

Nemo for Respondents.

Date of hearing: 21st February 1977.

Wali Muhammad son of Buja, filed a revision petition before the learned Additional Sessions Judge, Montgomery against the order of the learned Additional District Magistrate, Montgomery, dated 5‑4‑1965 whereby he dismissed the complaint of the petitioner under section 203. Cr. P. C. in which he had made allegations that Muhammad Ramzan and six others (respondents) had extorted a sum of Rs. 600 from him. The learned Sessions Judge, has recommended that the revision petition of Wali Muhammad miry be accepted and the trial Magistrate be directed to summon the accused and hold trial in accordance with law.

2. Brief facts of tire case are that on 8th May, 1963, Wali Muhammad petitioner filed a complaint in the Court of the Additional District magistrate. Montgomery against the seven accused/respondents, under section 384, P. P. C., alleging therein that the respondents had extorted a sum of Rs. 600 from him. The Additional District Magistrate, on 20‑6‑1963, directed the Tehsildar to hold preliminary inquiry.

The Tehsildar after holding the inquiry, submitted a report to the Additional District Magistrate which was examined by him on J6‑10‑1963. The Additional District Magistrate rejected the report of the Tehsil dar on the ground that the inquiry had bean conducted ex parte. He than directed the S. H. O. Police Station Saddar, Montgomery, to hold inquiry. The order of the Additional District Magistrate was challenged before the predecessor of the referring authority who vide his order dated 5‑ t‑1965 rejected the revision petition.

The police officer who conducted the inquiry submitted a report which came up before the Additional District Magistrate on 5‑4‑1965 and he passed the following order: ‑

"Complainant is present with his counsel. The report of the police has been received, with which I agree. The complaint is, therefore, dismissed under section 203, Cr. P. C. Order pronounced. File to be consigned to the Record Room."

The learned Additional Sessions Judge, has taken exception to this order of the Additional District Magistrate on the following grounds:‑

(i) that the Additional District Magistrate has simply stated that he agrees with the police report. As the police report did not form part of the order, therefore, no reliance could be placed on it and it would be concluded that the learned Magistrate has failed to apply his mind;

(ii) that the learned Additional District Magistrate had first directed the Tehsildar to make inquiry and in his report the Tehsildar submitted that a prima facie case had been made out against the respondents but the same was not accepted by him, on the ground that the inquiry conducted by the Tehsildar was ex parts. According to the learned Additional Sessions Judge this was misconception of law as law did not require that a person who had been directed to make preliminary inquiry, under section 202, Cr. P. C., must examine the accused and their witnesses.

3. I have given ct y anxious thought to the reference so made by the Additional Sessions Judge and find that in view of section 202, Cr. P. C. which contemplates only one preliminary inquiry which could either be held by the Magistrate himself or a Magistrate subordinate to him or by a police officer. The view taken by the Additional District Magistrate was absolutely untenable under the law. Similarly the procedure adopted by him by sending the case to the police for inquiry, was also against the principle of natural justice when there was a positive complaint made against that agency that it had acted in collusion with the respondents.

4. In view of the above, I accept the reference and direct the Additional a District Magistrate or his predecessor to summon the accused and hold trial in accordance with law.

Reference accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.