Find a Lawyer

Criminal Miscellaneous No. 786/Q of 1975, decided on 7th June 19760

Ss. 156(89) & 185-A(3), (6), (10)-Case taken cognizance of and pending in Court transferred to another Court by operation of law- Special Judge, in respect of transferred case, not bound to recall or rehear any witness-No fresh complaint necessary an respect of such transferred case.-[Criminal (trial)].

State v. Saeed Ahmad P L D 1962 S C 277 ref.

M. Saleem for Petitioners (on 25-5-1976 only).

M. Abu Fateh for the State.

Dates of hearing : 25th May and 7th June 1976.

A case registered on 8-9-1972 was challaned on 28-12-1972 against the petitioners under section 156 (89) of the Customs Act (IV of 1969P before Magistrate Ist Class, Rawalpindi. The case proceeded and according to learned counsel for the petitioners the evidence concluded but before arguments could be heard, a change in the relevant law was brought., about by introduction of a new section 185-A in the Customs Act by Finance Act (L of 1973). By Finance Act of 1974 (XL of 1974). which Came into effect on 30-6-1974, subsections (7), (8), (9) and (10) were added to the said section 185-A. By virtue of this section 185-A, Courts of Special Judges were set up, and all cases pending in the magisterial,

Courts at the relevant time stood transferred to the Court of the Special Judge concerned. The case against the petitioners accordingly came up before the Special Judge Customs and Taxation, Lahore Camp, Rawalpindi. On 2 -5-1975, the prosecution withdrew the cage "in order to file a proper complainant as envisaged by law'. The matter was adjourned to 12-61975 for the purpose, but on that date no complaint was filed and it was further adjourned for filing of the complaint. The petitioners moved an application on 11-11-1975 before the Special Judge urging that no complaint having been made as envisaged by subsection (6) of section 185-A of the Customs Act and the case having been withdrawn by the Public Prosecutor on 22-5-1975, the petitioners were no longer accused of any offence and as such the Court had no jurisdiction to proceed with the case. The learned Special Judge rejected this application on 13-11-1975 upon the view that no fresh complaint was needed. and that the case stood transferred to his Court and the trial should continue without any complaint. Not satisfied, the petitioners moved the present application under section 561-A, Cr. P. C. praying for quashment of the case.

2. It will be useful to reproduce the relevant provisions of section 185-A to which attention has been drawn frequently during the hearing of this petition. These are:

"185-A. Offences to be tried by Special Judges.-(3) Notwithstand ing anything contained in any other provision of this Act or in any other law for the time being in force on the appoint ment of a Special Judge for any area, an offence punishable under this Act, shall be tried exclusively by the Special Judge and all cases pending in any other Court in such area immediately before such appointment shall stand transferred to such Special Judge.

(6) A Special Judge shall take cognizance of and have jurisdiction to try, an offence triable under subsection (3) only upon a complaint in writing made by such officer of customs or such other person invested with the powers of an officer of customs, as may be authorised by the Central Board of Revenue in this behalf, by a general or special order in writing.

(10) In respect of a case transferred to a Special Judge by virtue of subsection (3) or under subsection (9), such Judge shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence in the case before the transfer and may act on the evidence already recorded by or produced before the Court which tried the case before the transfer."

3. Learned counsel for the petitioners laid stress on the provisions of subsection (6) to urge that the only method of taking cognizance by a Special Judge in all cases triable by him is upon a complaint in writing made by an authorised officer and that as no saving bad been made in respect of pending cases which stood transferred to the Special Judge by virtue of subsection (3), the Special Judge could not take congnizance of these cases also, in the absence of the required complaint.

4. The contention, in my view, is misconceived because the question of taking cognizance arises only in fresh cases and not in pending case in which cognizance had already been taken. Cognizance once taken of a case remains unaffected by subsequent transfer of the case to another Court by an order or by operation of law. The necessary legal implication in every transfer of a case is that the case moves from one Court with jurisdiction to another Court with jurisdiction and the cognizance taken by the earlier Court passes on with the case to the latter Court upon the transfer. In fact, a pending cases remains pending until it has been finally disposed of. To hold that a pending case will stand transferred to the Court of Special Judge by operation of the law and also that the Court cannot take cogniz ance of such case unless a complaint has been filed, is contradictory in terms. What will happen if the person authorised to file complaint chooses not to do so. Will he thereby frustrate the directive of the law relating to the transfer Can a Court to which a case stands transferred still lack cogniz ance of it. The answer, to my mind, is plainly in the negative. Moreover, the incorporation of the provision in subsection (10) whereby the Special Judge, in respect of the transferred cases, is not bound to recall or rehear any witness whose evidence has already been recorded before the transfer and whereby the Judge is permitted to act on that evidence, clearly repels any inference that subsection (6) intended that a fresh complaint would be necessary even in respect of cases transferred by operation of the law.

5. For analogy, we may refer to State v. Saeed Ahmad PLD 1962 S C 277. In this case Saved Ahmad a public servant at the relevant time, had been prosecuted before a Special Magistrate under the Criminal Law (Amendment) Act, 048. By an amendment in the Act in 1953, such cases became exclusively triable by the Special Judge and all pending case stood transferred to his Court. Now, prosecution of a public servant before the Special Judge was subject to sanction of Government but the law provided that such sanction would be unnecessary in respect of pending cases automatically transferred by operation of law. This was substituted by Act of 1958, according to which no public servant was to be prosecuted without sanction of the appropriate Government but it was provided in section 6 (5) of the Act of 1958 that "no such sanction shall be required in respect of a case transferred under the proviso to subsection (2) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so transferred." Since no sanction had ever been accorded to the prosecution of the case, an objection had been taken that the proceedings were incompetent. The objection was ruled out and their Lordships agreed with the argument advanced on behalf of the State that sanction was not needed in the case because it had been validly pending before the Special Judge even without a sanction when the Act of 1959 had come into force. Their Lordships held :

"The case against the respondent had been transferred by virtue of section 4 (4) of the Act of 1948 as amended in 1953 and according to the proviso to section 6 (5) no sanction was needed in such cases. In accordance with section 14 (2) of the Act of 1958 the transfer is deemed to have taken place under the Act of 1958 and the validity conferred on these proceedings by the proviso to section 6 (5) is deemed to have been conferred by the Act of 1958."

In this connection, their Lordships observed:-

"The policy of the Legislature consistently has been that it does not apply the provision as to sanction to pending proceedings."

It may also be observed that sanction is ordinarily a condition precedent to the initiation of proceedings and it will be unusual to require sanction for continuing a validly initiated proceeding."

6. Anyway, the objection is no longer available because a formal complaint has since been filed before the Special Judge Customs by the Senior Superintendent of Police, Rawalpindi, who is a person authorised for the purpose. A photostat copy of this complaint has been produced before me by Mr. Masood Ahmad, the Prosecuting Inspector in the Court of the Special Judge (Customs), Lahore.

7. In the result, the petition is dismissed.

S. Q. Petition dismissed,

Find a Lawyer Near You

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