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Criminal Miscellaneous Application No. 969 of 1976, decided on 16th January 1978.

Criminal Procedure Code (V of 1898)‑

‑‑‑ S. 190(3)‑Cognizance‑Offence exclusively triable by Court of Session‑Magistrate taking cognizance on direct complaint for such offence ‑ Required to send case straightway to Court of Session without recording any evidence under S. 200, Criminal Procedure Code, 1898‑Magistrate in such cases, held, not competent to even examine complainant much less to issue process against accused‑Sessions Court in such eventuality, held further, has to examine complainant and take all further

steps required to be taken under Criminal Procedure Code, 1898.‑[Cognizance].

Ghulam Abbas Soomro for Applicant No. 1.

Nazeer Alam for the State.

M. Asghar Khan for Respondent No. 2.

Date of hearing : 16th January 1978.

This is an application under sections 439 and 561‑A, Cr. P. C. for quash ment of proceedings started on a direct complaint under the following circumstances.

2. The complaint was filed in the Court of A. C. M. Court No. 9, Karachi against applicants 1, 2 and 3 for offence under section 302 read with section 34, P. P. C. The learned A. C. M. after taking cognizance on the complaint recorded the statement of the complainant under section 200, Cr. P. C., held preliminary enquiry under section 202, Cr. P. C., recorded statements of two more witnesses and then passed orders under section 204, Cr. P. C. ordering bailable warrants against the applicants/respondents 1 to 3.

3. It has been pointed out by the learned counsel for the petitioners that the Magistrate had acted without jurisdiction as the case was exclusively triable by the Court of Session.

4. After the amendments of the Cr. P. C. came into operation the procedure in respect of offences exclusively triable by Court of Session has been completely changed. Under section 190 (3), Cr. P. C. a Magistrate taking cognizance on a direct complaint for an offence exclusively triable by Court of Session is required to send the case straightaway to the Court of Session without recording any evidence. Under section 200, Cr. P. C. in A such cases the Magistrate is not competent to even; examine the complainant but he has to send the complaint to the Court of Session and it is for that Court after recording statement of the complainant to issue process or to direct a preliminary enquiry. Under section 202 (2) of the Code, a Court of Session can direct investigation by the police or the subordinate Magistrate and under section 203 the Sessions Court may, on .receiving the complaint, record the statement of the complainant on oath and on consideration of the same may dismiss the complaint.

5. It would, therefore, appear that the learned Magistrate acted without jurisdiction when he examined the complainant on oath under section 200, Cr. P. C. and also held preliminary enquiry under section 202, Cr. P. C He had also no powers to issue process under section 204, Cr. P. C. The proceedings from the state of examination of the complainant to the stage of issue of process being without jurisdiction are accordingly quashed. The learned Sessions Judge to whom the complaint has been sent may, therefore, proceed over again from the state of section 200, Cr: P. C. and record fresh statement of the complainant under that section and after considering the same may proceed according to law.

6. The revision application is disposed of accordingly.

s. A. H. Application accepted.

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