Find a Lawyer

Criminal Revision No. 717 of 1984, heard on 13th February, 1985.

‑‑‑S. 202‑‑Complaint under S. 302/307/148/149, Penal Code (XLV of 1860), sent to Sessions Judge by Illaqa Magistrate‑‑Sessions Judge, without recording statement of complainant sending same to Resident Magistrate for inquiry and report‑‑Held, Sessions Judge could not have sent complaint to Resident Magistrate without first recording statement of complainant.‑‑[Complaint].

‑‑S. 203‑‑Appreciation of evidence‑‑Sufficient grounds for prosecution required for issuance of process against accused‑‑Deep appreciation of evidence not needed at all‑‑Such questions not legally appreciated by Sessions Judge‑‑Case remanded in circumstances.‑‑[Evidence].

Lal Khan Baluch for Petitioner.

Nemat Khan for Respondents.

Nemo for the State.

Date of hearing: 13th February, 1985.

This revision arises from the order, dated 25‑10‑1984 passed by Sessions Judge, Jhang whereby complaint filed by Haq Nawaz petitioner against Riaz and seven others was dismissed under section 203, Cr.P.C.

2. On 21‑3‑1984 Haq Nawaz petitioner filed complaint against Riaz and seven others under section 302/307/148/149, P.P.C. before Illaqa Magistrate, Chiniot. The complaint was sent up to the Court of Sessions Judge, Jhang. The learned Sessions Judge without recording the statement of the complainant sent the complaint to Resident Magistrate, Chiniot for inquiry and report under section 202, Cr.P.C. The Magistrate recorded statements of the complainant, Allah Yar, Allah Ditta, Ahmad and Haji Anwar. He reported that prima facie case for proceedings against the accused persons was made out. The learned Sessions Judge examined the report and for reasons given in the order he disagreed with the Inquiry Officer and dismissed the complaint under section 203, Cr.P.C. on 25‑10‑1984, hence this revision.

3. On 6‑2‑1985 I admitted the revision for regular hearing. Since the impugned order was not a discharge order and complaint had beer dismissed under section 203, Cr.P.C. to my mind show‑cause notice was not a legal requirement so the respondents were not summoned.

4. The learned counsel for the petitioner contends that the complaint was dismissed without legal and factual justification.

5. I have considered the arguments addressed by the learned counsel with care. I feel persuaded to agree with the learned counsel for the petitioner. The relevant provision of the Code may be reproduced advantageously.

"Section 200.‑‑ A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate:

Provided as follows:‑

(a) when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192 or sending it to the Court of Session;

(aa) when the complaint is made‑in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;

(c) when the case has been transferred under section 192 and the Magistrate so transferring it, has already examined the complainant, the Magistrate to hom it is so transferred shall not be bound to re‑examine the complainant.

Section 201.‑‑ (1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case he shall return the complaint for presentation to the proper Court with an endorsement to that effect.

(2) If the complaint has not been made in writing such Magistrate shall direct the complainant to the proper Court.

Section 202.‑‑ (1) Any Court, on receipt of a complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, subsection (3), or transferred to it under section 191 or section 192, may, if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by a Police Officer, or by such other person as it thinks, fit for the purpose of ascertaining the truth or falsehood of the complaint:

Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.

(2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1) direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.

(3) If any inquiry or investigation under this section is made by a person not being a Magistrate or a Police Officer, such person shall exercise all the powers conferred by this Code on an officer‑in‑charge of a police station, except that he shall not have power to arrest without warrant.

(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath.

Section 203.‑‑ The Court before whom a complaint is made or to whom it has been transferred, or sent may dismiss the complaint, if, 4fter considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.

Section 204.‑‑ If in the opinion' of a Court taking cognizance of any offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, it shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if, it thinks fit, a summon for causing the accused to be brought or to appear at a certain time before such Court or (if it has not jurisdiction itself) some other Court having jurisdiction."

From the examination of the provisions of law .it is very much obvious that the learned Sessions Judge, could not have sent the complaint to the Resident Magistrate without first having recorded the statement of the complainant. Further for the issuance of process against the accused only sufficient grounds for prosecution were required and that deep appreciation of the evidence as has been done by the learned Sessions Judge was not needed at all. I am convinced that toe question of the issuance of process or that of the dismissal of the complaint under section 203, Cr.P.C. has not been legally appreciated and as such there is no option but to set aside the impugned order and send back the case to the learned Sessions Judge, for fresh proceedings according to law.

M. A. K.

Case remanded.

Find a Lawyer Near You

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