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Criminal Revision No. 30 of 1959, decided on 4th April 1959.

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S. 156 (3)‑Magistrate not bound to accept opinion of investigating officer‑Ca) take cognizance under S. 190, Cr. P. C.

A Magistrate forwarding a private complaint for investigation by Police under section 156 (3) of the Criminal Procedure Code is not bound to accept the opinion of the investigating officer and even if the report is that no cognizable offence has been committed, he can yet proceed under section 190, Criminal Procedure Code.

Emperor v. Hayat Fateh Din A I R 1948 Lah. 184 (F. B.) rel.

Ch. XVI‑Magis trate taking cognizance of offence upon complaint should proceed in manner laid down in Chapter‑Should not refer matter to police for investigation and report under S. 156 (3) Cr. P. C.‑‑Criminal Procedure Code (V of 1898), Ss. 156 (3), 190 & 200.

When a direct complaint is presented to a Magistrate, it is his duty to proceed in the manner laid down in Chapter XVI of the Criminal Procedure Code, 1898 and to examine the complainant under section 200 of the Code. He ought not to refuse to take cognizance of the complaint and send it to police for enquiry under section 156 (3), Criminal Procedure Code, 1898 and then dispose of it by executive order.

Shedad Gadai v. Crown I L R 1940 Kar. 431 fol.

Akhtar Ahmad Kazi for Petitioner.

Muhammad Hayat Junejo for the State.

Date of hearing: 4th May 1959.

This revision application is directed against the order of Mr. Muhammad Yousuf C. Khwaja, 2nd Additional Sessions Judge, Hyderabad dated 12‑12‑1958, refusing to interfere with the order of the Resident Magistrate, Hala, who has issued process against the appellants under section 395/397, P. P. C.

Resident Magistrate, Hala, forwarded the private complaint of the Opponent, under section 395/397 P. P. C. for investigation by the Police under section 156 (3). The police report showed that the case was false but the learned Magistrate examined the witnesses in Court and found a prima facie case against the petitioner and issued the necessary process to them.

Mr. Akhter Ahmad Kazi, strongly argued that the Magistrate concerned should have accepted the report of the police and filed this case. This contention is not well founded and opposed to the view expressed in Emperor v. Hayat Fateh Din (A I R 1948 Lah. 184 (F.B.)). In than case it was held that "the Magistrate is not bound to accept the opinion of the investigating officer and even if the report is that no cognizable offence has been committed, he can yet proceed under section 190, Cr. P. C." In my opinion the learned Magistrate's, order cannot be assaulted on this ground.

It, however, appears to me that when a direct complaint is presented to a Magistrate, it is his duty to proceed in the manner laid down in Chapter XVI of the Cr. P. C. and to examine the complainant under section 200, Cr. P. C. He ought B not to refuse to take cognizance of the complaint and send it to police for enquiry under section 156 (3) and then dispose of it by executive Order as a "B" summary. This view was expressed by Davis, J. C., and Lobo, J. in Shedad Gadai v. Crown (I L R 1940 Kar. 431). I entirely agree with the view expressed in this decision. In view of this, the learned Magistrate was perfectly correct in rectifying the mistake by taking cognizance of the complaint. Thus it is obvious that the learned Magistrate's order on any view of the matter is fully legal and justified.

For the reason given I find no force in this revision applica tion. The same is dismissed and interim stay order is discharge. The office is directed to send the record to the Subordinate Court without any delay.

K. B. A. Petition dismissed.

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