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Criminal Miscelloneous Application No. 287 of 1981, decided on 29th May, 1983.
‑‑Ss. 561‑A & 439‑A‑Inherent jurisdiction‑Order passed under S. 439‑A‑Held, inherent jurisdiction under S. 561‑A may be exercised to correct error passed in such order.
Ghulam Muhammad v. Muzammll Khan and 4 others P L D 1967 S C 317 ; A. Hameed Kausar v. The State P L D 1979 Lah. 727 ; Durrani v. Muhammad Jan. etc. P L D 1979 Quetta 17 ; Shahkot Bus Service v. The State 1969 S C M R 325 and Burew.ila Textile Mills Ltd. v. The State P L D 1978 Lah. 287 ref.
‑‑‑S. 145 (1) ‑Dispute as to possession of immovable property Stating of reasons or grounds of satisfaction of Magistrate manda tory‑Magistrate while passing order under S. 145 (1) neither stating grounds nor mentioning specific reasons but simply making reference to report of Police‑Sessions Judge, held, justified in interfering such order.
‑‑‑S. 145 (1) & (4)‑ Dispute as to possession of immovable property‑Sealing of, premises‑‑Giving of reasons for attachment or seizure of property, under subsection (4) not obligatory upon trying Magistrate‑ , Order under subsection (4) based on order under subsection (1) of . S. 145‑Order under subsection (1), held, null and void, order under subsection (4) based upon such order, held, also falls to ground.
Syed Ali Nazar for Petitioner.
Faizanul Haq for Respondent No. 1.
Abdul Wali Makhdoom for the State.
Date of hearing : 22nd May, 1983.
This is an application under section 561‑A, Cr. P. C. filed by Ust Sayeeda Bano petitioner for quashment of the order passed by IInd Addi tional Sessions Judge, Karachi in Criminal Revision No. 312 of 1980, on 3rd March, 1981 and for restoration of the order of A. C. M. and S.D.M. Garden, Karachi, dated 13th November, 1980 passed under section 145 (1 and (4), Cr. P. C.
2. The petitioner had lodged proceedings before S.D.M., Garden under section 145, Cr. P.C. against Muhammad Saleem and others stating therein that there is apprehension of breach of peace about the possession of peti tioner's shop situated in Darya Lai Street, Jodia Bazar, Karachi. This shop admittedly belonged to the petitioner but was given on rent to respondent Muhammad Saleem. The case of the petitioner is that she had obtained an ejectment order against Muhammad Saleem and got the order. executed through Bailiff of Civil Judge and Rent Controller No. XI, Karachi on 6th November, 1980 and that thereafter Muhammad Saleem, with the help of others, forcibly took possession of the same shop.
3. This application was forwarded by S. D. M., Garden to S. H. O. concerned for investigation and report. On receipt of the report from the S. H. O., the S. D. M., Garden passed order, on 13th November, 1980 to the following effect :‑‑
"Heard and perused Police report. I am satisfied with the Police report and argument of learned counsel that there exists danger of breach of peace. The S. H. O. be therefore, directed to seal the premises under dispute and issue notice to opponents for appearance on the next date for further proceedings according to law."
This order was challenged‑by Muhammad Saleem before Sessions Judge, Karachi in Criminal Revision No. 312 of 1980. The revision application was forwarded by the Sessions Judge to IInd Additional Sessions Judge, Karachi for disposal. The learned Ilnd Additional Sessions Judge, by the impugned order, accepted the revision application and set aside the order of the S. D. M., dated 13th November, 1980 mainly on the ground that the matter was of civil nature and that the learned S. D. M. has not stated the grounds for his satisfaction to proceed under section 145 (1) and (4), Cr. P: C.
4. I have heard learned counsel for the parties. Mr.. S. Ali Nazar has argued that order of the learned Additional Sessions Judge, Karachi, dated 3rd March, 1981 is illegal and is not in conformity with the law and as such it is liable to be quashed and that the order of the S. D. M. should be restored.
5. A preliminary objection has been raised on behalf of learned counsel for the respondents that an application under section 561‑A, Cr. P. C. is not maintainable against an order passed in revision under section 435/439, Cr. P. C. In support of this objection he has relied on the case of Ghulam Muhammad v. Muzammil Khan and 4 others (P L D 1967 S C 337). While discussing the scope of section 561‑A, Cr. P. C. in the. above case, the Supreme Court made following observations :‑‑
The inherent jurisdiction given by section 561‑A is not an, alternative jurisdiction or an additional jurisdiction but it is a jurisdiction pre served in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court has not found in the present case but has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigations of the complaint, particularly, if the offence disclosed is of non‑cognizable nature. The High Court itself has referred to a Full Bench authority of the Madras High Court where a contrary view was taken but has not quoted any other authority in support of its own view. We are in agreement with the views expressed by the Madras High Court, for we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of the investigation on the basis of the complaint except in the cases mentioned in sec tions 196 to 199, Cr. P. C. Section 190 (1) (b) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non‑cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in respect of which the challan was submit ted was under section 408, P. P. C., which was cognizable. Thus even the obstacle posed by section 155 (2), Cr. P. C., did not stand in the way. The challan submitted by the Police was, therefore, lawfully submitted and legally enquired into."
Another case relied upon by Mr. Faizanul Haq, Advocate for respondent No. 1 and Mr. Abdul Wali Makhdoom learned counsel for the State, in support of the preliminary objection as to maintainability of the applica tion under section 561,‑A, Cr. P. C., is that of Professor A. Hameed Kausar v. The State (P L D 1979 Lah. 727). In this case a learned Single Judge of the Lahore High Court; relying on the principle laid down by the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan referred to above, held that the jurisdiction under section 561‑A, Cr. P. C. is not to be used as an .additional or alternative jurisdiction, 'that inherent jurisdiction under section 561‑A has been preserved in the interest 'of justice to redress the grievance for which no other procedure is available and that once an Additional Sessions Judge has exercised revisional jurisdiction under section 439‑A, Cr. P. C., then "it is trite law that the jurisdiction under section 561‑A of the Code of Criminal Procedure is not to be used as an additional' or 'alternative' jurisdiction."
6. In the present case, the petitioner was respondent in the revision application before the learned Additional Sessions Judge. It has, therefore, been argued by Mr. S. Ali Nazar on behalf of the petitioner that it was not the present petitioner who had exhausted the available remedy under section 439‑A, Cr. P. C. The petitioner being respondent in the above revision application, was aggrieved by the order of the learned Additional Sessions Judge and had no other remedy to challenge that order except under the provisions of section 561‑A, Cr. P. C. regarding inherent jurisdic tion of the Court. He has, therefore, argued that the principle laid down in the Supreme Court and the Lahore High Court cases, cited above are, not attracted to the facts of the present case. In support of his argument, Mr. S. Ali Nazar has relied on the case of Durrani v. Muhammad Jan etc. (P L D 1979 Quetta 17) in which it has been held by a learned Single Judge of Baluchistan High Court that inherent jurisdiction of High Court under section 561‑A, Cr. P. C. is available for interference with the orders of Sessions Judge passed under section 439‑A, Cr. P. C. In yet another case of Shahkot Bus Service v. The State (1969 S C M R 325) the Supreme Court observed as under while defining the scope of inherent jurisdiction of the High Court under sec tion 561‑A, Cr. P. C. :‑‑ .
"It is, no doubt, true that where express provision is wade in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the 4igh Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."
7. Reference has also been made to the case of Burewala Textile Mills Ltd. v. The State (P L D 1978 Lah. 287) in which following observation was made by the Court in respect of the scope of sections 439‑A and 561‑A, Cr. P. C. :‑
"Section 439 and section 561‑A are fundamentally different. Sec tion 561‑A is limited to abuse of the process of the Court and sec tion 439 is indeed wide ‑ and in the exercise of revisional jurisdiction the High Court, in appropriate cases, can disturb the finding of fact, and, in some cases, even the reversal of the judgment, whereas under section 561‑A, Cr. P. C. the jurisdiction of the High Court is of an extraordinary nature intended to be used only in extra ordinary cases and its limited scope cannot be utilised where there is either express remedy provided by the Code or where the remedy provided has been availed by the petitioner It is only intended to prevent the abuse of the process of the Court and cannot be regarded as being wide enough to confer on the High Court the same power as it has conferred under section 435 read with section 439, Cr. P. C. to examine the correctness or legality or propriety of any finding, sentence or order passed by an unfairly Court."
8. In view of the law laid down in the above decisions it maybe con cluded that inherent jurisdiction of the Court under section 561‑A, Cr. '.P.C may be exercised even to correct an error in an order passed by a Sessions .fudge m revisional jurisdiction under section 439‑A, Cr. P. C. It is, there fore; to be seen whether the impugned order of the Additional Sessions judge is so manifestly perverse or without‑jurisdiction or against the principle of natural justice so as to call for interference by this court in exercise of inherent jurisdiction.
9. The order of the trial Court under section 145, Cr. P. C. is not only sketchy but it does not give reasons for its satisfaction that a real apprehension of breach of peace exists. He has not specified the circum stances or the grounds of his satisfaction for taking action under sec tion 145 (1), Cr. P. C. He has passed one order under subsections (1) and (4) of section 145, Cr. P. C. So far as order under section 145 (1), Cr. P.C. is concerned, the Magistrate is required to "make an order in writing stating the grounds of being so satisfied." These words are preceded by the word shall' making it mandatory for the Magistrate to give reasons or state grounds for his satisfaction as to existence of breach of peace. The learned Additional Sessions Judge was, therefore, justified in interfering with the order of the trial Court in so far as it related to subsection (1) of section 145, Cr. P. C. It was mandatory for the Magistrate to stat reasons or grounds of his satisfaction regarding existence of breach o peace. As no grounds were stated nor specific reasons were mentioned, but simply a reference was made to the report of the Police, the learned Additional Sessions Judge was, therefore, justified in interfering with the said order.
10. However, so far as the sealing of the premises under subsection (4)of section 145, Cr. P. C. is concerned, it was not obligatory upon the trying Magistrate to give reasons for attachment or seizure of the property. But the order under subsection (4) is based on the order under subsection (1) of section 145, Cr. P. C. If the order under subsection (1) itself is held to be null and void, the order under subsection (4) which is base upon the first order, shall also fall to the ground.
For the above reasons I am satisfied that no case has been made out for interference with the order of the learned IInd Additional Sessions Judge by this Court in exercise of the inherent jurisdiction under sec tion 561‑A, Cr. P. C. The petition is, therefore, dismissed.
M. A. K. Petition dismissed.
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