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Criminal Miscellaneous No. 189/T of 1980, decided on 28^thFebruary, 1981.

-- S. 526 (I)-Transfer of criminal cases-Complaint containing a statement of facts and raising a point of law-Held, a case before Magistrate within meaning of S. 526 (f) immediately on being filed and can be transferred even before statement of complainant recorded or summary issued to accused.-[Complaint].

Wharton's Law Lexicon, 14th Edn.; Asa Ram v. Bhagisathi (1911) 12 Cr. L J 437 ; Sait Kasturi Chand v. Addagalla Vaikuntam A I R 1942 Mad. 426 and Emperor v. Colin A I R 1926 Cal. 470 ref.

-----S. 526-Transfer of criminal cases-Additional Deputy Com missioner (General) due to first respondent (accused) being his colleague neither examining complainant nor his witnesses in support of complaint-Applicant having had reasonable apprehension of not having a fair trial case transferred from Court of A. D. C. (G) to Court of Sessions Judge to meet ends of justice.

Alauddin Ahmad v. State P L D 1968 Dacca 668; Ghulam Muhammad v. State P L D 1979 Quetta 1 ; Muhammad Ashraf v. Khair Muhammad 1979 P Cr. L J 372 ; Maulana Abaidullah Anwar v. District Magistrate 1969 P CR. I. J 583 ; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf P L D 1963 S C 51 and Muhammad Nawaz v. Ghulam Qadir P L D 1973 S C 327 ref.

Athar Rehman and Syed Jamshed Ahmad for Petitioner.

Dr. Khalid Ranjha for Respondents Nos. 2 to 12.

Bashir Ahmad Khan for Respondents Nos 1 and 13.

Date of hearing : 18th February, 1980.

This is an application praying the transfer of a criminal case from the Court of the Additional Deputy Commissioner (General), Faisalabad to this Court. The reasons given are that the District Magistrate and Additional Deputy Commissioner (General), Faisalabad have not recorded the statement of the complainant and his witnesses in support of the com plaint as required under the law, and that even no date bas been fixed. It is further stated that respondent No. 1 is a member of the District administration group while the others are Police Officials and, therefore, it would not be possible for the A. D. C. (G) to dispense even handed justice. A plea that the offences are triable by the Court of Session is also raised.

2. Briefly, the facts leading to this petition are that the petitioner/ complainant who is an Advocate and Editor of a monthly journal arranged a music concert to celebrate marriage of his brother, within the precincts of his house in Toba Tek Singh on 13th October, 1980. Malik Sher Muhammad an A. S. I. respondent No. 4, appeared on the scene and commanded that the function may be stopped. Respondent No. 4 is alleged to have not accepted the petitioner's explanation that it wits a purely private function to celebrate an occasion and got infuriated. He left the house abusing the petitioner and his brothers. Soon after he returned accompanied by respondents 3 to 12 while all in uniforms, armed with rifles and lathis. They allegedly started manhandling the male and female guests. They are also said to have beaten the complainant, his son, brother-in-law and cousins with sticks and handcuffed them there after to put them in the lock-up. They were released on 14th October, 1980 at about 2-00 a. m. on the intervention of the respectables of the town. It is, thereafter that the petitioner visited the Civil Hospital, got them medically examined and approached the Superintendent of Police for registration of a case. Op his refusal he sent telegrams to S. P., and thereafter filed Writ Petition No. 10945/80 on which -it was observed that an the petitioner had all the evidence and no investigation needed he can file a criminal complaint straightaway.

3. The learned counsel for the respondents raised a preliminary objection to the effect that as the complaint had only been registered and no statement of the complainant recorded it cannot be transferred to another Court. The case of the petitioner is that the District Magistrate reluctantly entertained the complaint and that the A. D. C. (G) has not examined the complainant or his witnesses in support of the complaint. He relied on Alaudin Ahmad v. Stare (P L D 1968 Dacca 668) wherein it was held that the Sub-Divisional Magistrate acted illegally in summoning the accused persons, without examining the complainant, on the plea that he had made an inquiry and that he and a report of the Circle Officer. He also referred to Ghulam Muhammad v. State (P L D 1979 Quetta 1) wherein it was held that a Magistrate takes cognizance of the case only after he makes up his mind after having gone through the complaint to proceed either to refer it for inquiry and report under section 200 of the Code or proceed with the trial of the case himself by issuance of process to the accused.

4. In mother case Muhammad Ashraf v. Khait Muhammad (1979 P Cr, L J 372) a learned Single Judge of this Court held that the object of examination of the complainant under section 200, Cr. P. C. by the Court is to satisfy itself, of a prima facie case being made out, against person accused of criminal offence, so as to protect public against false or frivolous accusa tion. None of these cases, however, go to show that a complaint that has been already filed cannot be transferred at the stage when no order taking cognizance has been passed by the competent Court.

5. Section 526 (1), Cr. P. C. under which this application has been made reads as under:--

526.---(1) Whenever it is made to appear to the High Court--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that such an order is expedient for the ends of justice, or is required by any provision of this Court ; it may order :--

(ii) that any particular case or appeal, or class of cases or appeals be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdic tion ;

This section empowers the High Court to transfer a case or appeal etc. whenever it appears necessary under law. 'Case is not defined in the Code. Section 4 (f), Cr. P. C, however, defines 'cognizable case to mean a case in which a Police Officer may, in accordance with the Second Schedule or under any law for the time being in force, arrest without warrant. Section 4 (n), similarly defines non-cognizable case. Wharton's Caw Lexicon, 14th Edition defines case' as (1) trial, (3) a statement of facts and documents, raising a point of law, submitted for opinion of counsel. Thus a complaint, which is a statement of facts raising a point off law is a case before a Magistrate immediately after it is filed.

6. Section 526 may be compared with section 192 read with section 200, where a case can be transferred by a Magistrate, only after taking cognizance. No such restriction is placed in section 526, as reproduced above. Section 185, Cr. P. C. is another provision talking about transfer of a case by the High Court,

6-A. It was held is Asa Ram v, Bhagisathi ((1911) 12 Cr. L J 437) that word case' in section 528 (1) of Criminal Procedure Code includes a proceeding, upon a complaint, as soon as it is received by the Magistrate who takes cognizance of the offence complained of. In Sait Kasturi Chand v. Addagalla Vaikuntarn (A I R 1942 Mad. 426) the Court held that a case can be transferred under section 200 read with section 192, Cr. P. C. even before the sworn statement is taken.

7. A Full Bench of Calcutta High Court in Emperor v. Colin (A I R 1926 Cal. 470) upheld a transfer made by a Magistrate who himself made a complaint received it in his Court, refused to pass any order himself and then transferred it to another Court. The judgments referred to above do show that a case can be transferred after a complaint has been filed and even before the statement of the complainant has been recorded or summons issued to the accused.

8. The same question came up for consideration in Maulana Abaid ullah Anwar v. District Magistrate (1969 P Cr. L J 583) wherein a similar complaint against the police personnel filed in the Court of Additional District Magistrate, Lahore, was transferred to the High Court before the Additional District Magistrate had issued any summons. In Syed Ali Nawaz Gardezi v. Lt. -Col. Muhammad Yusuf (P L D 1963 S C 51) the order of transfer of a complaint case to the High Court, without a notice to the accused, who was a high officer, was held to be in order. It appears from para 58 that the respondent had not as yet been summoned by the Magistrate, as an accused person when he passed the order of transfer.

9. The learned counsel for the respondents did not contest seriously the transfer of the case in availing situation. Undoubtedly, the Assistant Commissioner is nearly of a status, equal to the A. D. C. (G). Being in the same set up he could either be friendly or inimical to him. In both the cases, it will be much embarrassing for him to try respondent No. 1. This is supported by the allegation of the petitioner that the Additional Deputy Commissioner (General) failed to record the statement of the complainant or his witnesses.

10. In Muhammad Nawaz v. Ghulam Qadir (P L D 1973 S C 327) the learned Judges held:--

.....What is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circum stances ; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Never theless, it is not every incident regarded as unfavourable by the applicant, which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied namely, that the apprehension must be such as a reasonable man might justifiably be expected to have."

11. It is quite clear from the above that this Court has the power to transfer a complaint even immediately after it is filed and before any order is passed thereon by the relevant Magistrate. Again the Additional Deputy Commissioner (General) appears to have avoided taking any action as undoubtedly the respondent No. 1 is his colleague. This Court in the cases noted in para 9 above did transfer cases to this Court but the complaints there were against higher officers. However, the test in the case noted in para. 11 above being satisfied, this case must be transferred but it will meet the ends of justice if it is sent to the Sessions Judge. In view of the above, I transfer this case from the Court of the Additional Deputy Commissioner (General) Faisalabad, and direct that the same shall be heard and decided by the learned Sessions Judge, Faisalabad. Appeal dismissed.

Appeal dismissed.

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