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Criminal Revision No. 30 of 1958, decided on 1st April 1958, against the order of District Magistrate, Poonch dated 4th February 1958.
, S. 173‑Order of Magistrate striking off a case on police report that case was not proved‑Not judicial but administrative order ---- Not open to revision‑Criminal Procedure Code (V of 1898), S. 439.
Where complainant registered a case under S. 325, Pakistan Penal Code (XLV of 1860) which was struck off by Sub‑Judge Magistrate Ist Class after police report that as a result of their investigation the case was not proved.
Held, that the order bean of an administrative character, was not revisable by High Court.
The complainant, if he wished could initiate proceedings by a complaint and the Magistrate, orders striking off the case did not stand in his way.
Ratan Lal's Unreported Criminal Cases 1899 p. 521 (Bombay); Dhran; v, Emperor A I R 1938 Lah. 469 and Uma Singh v. Emperor A t R 1933 Pat. 242 ref.
Kh. Muhammad Shafe for Petitioner.
‑-- The facts giving rise to this revision petition are that Muhammad Ishaq Khan registered a case with the Rawalakot police under section 325, A. P. C. against Abdul Hamid Khan and 9 others. The police after investigation put up a report before the Sub‑Judge, Magistrate 1st Class, Rawalakot that the case was not proved, who by his order dated the 13th June 1957, agreeing with the police report ordered that the case be struck off. The complainant went up in revision before the District Magistrate, Poonch, who by his order dated the 4th February '1958, held that the order of the Sub‑Judge, Magistrate 1st Class, Rawalakot dated the 13th June 1957, was an executive -cum‑judicial order and, therefore, not open to revision. The complainant has now come up in revision to this Court.
The contention of the learned counsel for the petitioner is that the order passed by the Sub‑Judge, Magistrate 1st Class, Rawalakot on the 13th June 1957, was not an administrative order but a judicial order and as such it was revisable. He points out that the order was made under section 173, Criminal Procedure Code and his further contention is that all orders made under the Criminal. Procedure Code are judicial orders and revisable but he has not been able to produce any authority in support of his proposition.
Section 204, Criminal Procedure Code which occurs in Chapter XVII entitled " of the Commencement of proceedings before Magistrate" shows that judicial proceedings commence before the Magistrate only when lie takes cognizance whether on a complaint or on a police report submitted to him either under section 173, Criminal Procedure Code or after an enquiry under section, 202, Criminal Procedure Code made by the Police. Proceedings before the Magistrate takes cognizance on a police report are not judicial proceedings and any order passed at that stage is not a judicial order. It is only a judicial order that cane be revised. The High Court has no jurisdiction to revise administrative orders passed by the Magistrate. Dhram v. Emperor (A 1 R 1938 Lah. 469), which followed Uma Singh v. Emperor (A I R 1933 Pat. 242), a D. B. case is an authority for the proposition that an order of a Magistrate or. a police report under section 173 that the case be struck off is an administrative order and not a judicial order. In Uma Singh v. Emperor it was further held that principle of autrefois acquit " does not apply to such orders. To the same effect is another case reported as j 1899 Rattan Lal's unreported Criminal Cases 521 (Bombay) in which it was held that an order of the Magistrate directing a case reported to him by the police under this section to be struck off, is not a judicial order dismissing a complaint but an administrative one and cannot be revised by the Sessions Judge under section 436 Criminal Procedure Code.
The complainant can bring a complaint, if the police refused to put up a challan against the accused. The order passed by the learned Magistrate not being a judicial order, it is not necessary to get it set aside before the complaint can proceed and the existence B of the order dated the 13th June 1957, would not be a bar to the complainant bringing a complaint on the same facts. The Court can take cognizance on this complaint, if after due enquiry it finds that an offence has been committed.
The revision petition is, therefore, dismissed.
S. K./A. H. Petition dismissed.
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