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Criminal Revision Application No. 102 of 1984, decided on 9th April, 1986.

---Ss. 203 & 202--Complaint--Sessions Judge, on direct complaint, at first intended to examine complainant and prosecution witnesses but later dismissed complaint after recording statement of complaint on ground that complaint was directed against police officials who allegedly mishandled investigation and that complaint was to move superior police, officers--Held, Sessions Judge who was competent to grant relief to aggrieved persons according to law did not apply his mind properly--Sessions Judge should have examined other witnesses of complainant and directed any subordinate Magistrate to handle inquiry--Order of dismissal of complainant was contrary to facts and law--Order set aside and Sessions Judge directed to examine witnesses as shown in complaint or deal with complaint as provided under section 202, Criminal Procedure Code and pass proper order.

M. H. Junejo for the Applicant.

Mehmood Ashraf Umrani for Respondents 2 to 4 and 6 to 7.

Nemo for Respondent No.5.

Date of hearing: 9th April, 1986.

This Criminal Revision Application under sections 435, 436, 439 and 561-A, Cr.P.C. had been filed against the order, dated 22-9-1984, of lead Sessions Judge, Sanghar, whereby he dismissed the complaint of the petitioner under section 202 Cr.P.C.

The facts are that on 18-10-1983, cousin of applicant was murdered and such case was registered at Police Station Tando Adam. After necessary investigation accused Murad was challaned. On 10-7-1984 applicant filed direct complaint. The learned Sessions Judge on 11-7-1984 passed the following order.

"Complainant and P.Ws be examined, on the next date. Hearing 19-7-1984."

He recorded the statement of complainant on 12-9-1984, and dismissed the complaint on 22-9-1984, without examining any other witness.

2. I have heard Mr. Muhammad Hayat Junejo for applicant and Mr. Muhammad Ashraf Umrani for respondents Nos. 2, 3, 4, 6 end 7. The respondent No.1 died and respondent No. 5 could not be served in spite of notices issued by this Court.

3. The case was registered against all the respondents and their names have been given in F.I.R. After investigation the Police challaned only one accused Murad, therefore, direct complaint was filed in which as many as eight witnesses are cited. The learned Sessions Judge in his order, dated 11-7-1984, clearly stated that he intended to examine the complainant and prosecution witnesses but he dismissed the complaint after recording the statement of complainant only. He in his order observed as under.

"The main allegation in the present complaint is that the police had not conducted proper investigation and under the influence of accused persons etc. have only prosecuted /challaned one accused person Murad and others have let off.

To say the least this complaint in fact is directed against the police officials who investigated the alleged crime etc. and for this Purpose about the alleged mishandling of investigation of the crime in question the proper course was to move the superior police authorities against the police officials concerned instead of filing direct complaint against all the accused persons in Court. The allegations made against the accused persons by the complainant in his complaint and statement are utterly vague and ambiguous."

The direct complaints mostly in cognizable offences are filed when complainant alleges grievance against the police or investigating Agency I do not agree with the observation of the learned Sessions Judge that complainant has to move superior police officers he Court IH is competent to take cognizance and grant relief to aggrieved persons according to law. The learned Sessions Judge in this case has not applied his mind properly. He should have examined the other witness f the complainant as given in the complaint.

The legal point which occurred me is that on 11-7-1989, complainant was present before him. He did not record his statement n that day but adjourned the case to 19-7-1984. The complaint was resented before Magistrate who by an order, dated 11-4-1984, directed as complainant to produce the complaint before Sessions Judge as he as not competent to take cognizance. The proper order was passed the Magistrate in view of section 201, Cr.P.C. The procedure laid for disposal of complaint by the Sessions Judge is enunciated in i 202, Cr.P.C. is as follows:--

202. Postponement of issue of process:-

"I Any Court, on receipt of a complaint of an offence of which it s 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 reasons to be recorded, postpone the issue of process for compelling attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by the 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 witness on oath."

In view of allegations, the learned Sessions Judge could have directed any Subordinate Magistrate in view of subsection (3) of section 202, Cr.P.C. to hold enquiry. The order of dismissal of complaint is contrary to facts and law.

For the reasons stated above I accept the revision and set aside the order, dated 22-9-1984, of the learned Sessions Judge, Sanghar. He is directed to examine the witnesses as shown in the complaint or deal with the complaint as provided under section 202, Cr.P.C. and pass proper order within two months.

The murder case against Murad is pending. Stay already granted by this Court is vacated.

M.Y.H. Petition accepted.

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