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Criminal Miscellaneous No. 14 of 1988, decided on 23rd November, 1988.

---Ss. 144, 195 & 561-A--Penal Code (XLV of 1860), S.188--Quashing of proceeding --Accused raising construction over plot in violation of order under S.144, Cr.P.C. promulgated by District Magistrate--Proceedings initiated by police on complaint of Assistant Estate officer and not by the District Magistrate--Cognizance taken by Sub-Divisional Magistrate on report of police under S. 173, Cr.P.C.--Document claimed by trial Court to be complaint by District Magistrate neither filed alongwith challan nor a complaint addressed to any competent Court--Complaint in writing by public servant concerned or by some one to whom he was subordinate for taking cognizance of offences mentioned in S.195, Cr.P.C. held, was a condition precedent which must be strictly complied with to confer jurisdiction upon a Magistrate--Cognizance taken by the Magistrate was therefore, without lawful authority--Proceedings quashed in circumstances.

M.Y. Surakhvi for Petitioner.

Mirza Muhammad Nisar AA: G. for the State.

This petition for quashment of the proceedings in the case titled State v. Abdul Malak pending in the Court of Sub-Divisional Magistrate, Mirpur has been moved under the following circumstances.

2. Through a written report made by the Assistant Estate Officer, Municipality, Mirpur on 19-9-1986 it was claimed by the informant that the accused-petitioner Abdul Malak, allottee of Plot No. 33-B in Sector A-4, New Mirpur, had started construction on the plot without any permission and approval of the plan and by doing so, he had violated the order under section 144, Cr.P.C. Having received this written report, a case was registered and investigation was undertaken by the police. After taking necessary proceedings and on completion of the investigation, the accused was forwarded to stand his trial for the offence under section 188, Penal Code, in the Court of S.D.M., Mirpur.

3. On 21-12-1987, an application was moved by the accused-petitioner before the trial Court stating therein that the proceedings initiated against him on the complaint made by Basharat Hussain, Assistant Estate Officer, Municipality, Mirpur, on account of the alleged violation of the older passed by the District Magistrate, dated 15-8-1986, were not maintainable under law because the trial Court had no jurisdiction to take cognizance of the case in violation to the requirement contained under section 195, Cr.P.C. The trial Court, after hearing the Prosecuting Inspector and the learned counsel for the accused-petitioner, dismissed the petitioner"s application vide his order, dated 30-5-1988 on the ground that a written complaint by the District Magistrate was available on record and, as such, the application was not competent.

4. Feeling dissatisfied, the accused-petitioner has now moved this petition under section 561-A, Cr.P.C. claiming therein that the trial Magistrate had no jurisdiction to proceed with the case as the prosecution has not been initiated either on the complaint in writing of the public servant concerned or of some other public servant to whom he was subordinate as required under section 195(1), Cr.P.C. Since the point involved in the case has not been appreciated by the trial Court in its correct perspective and the relevant provision of law has been misconstrued and misinterpreted, the order of rejection of the application of the petitioner passed by the trial Magistrate on 30-5-1988, was bad in law and the cognizance taken by the learned S.D.M., Mirpur in the case was without lawful authority and, as such, the proceedings taken in the case are liable to be quashed, contended the learned counsel.

5. The learned Additional Advocate-General, on the contrary, argued that the complaint as referred to by the trial Magistrate in his interim order passed on 30-5-1988, made by the District Magistrate, was very much available on record and the trial Court took the cognizance on the basis of this complaint. The petition now moved for the quashment of proceedings under section 561-A, Cr.P.C., according to the learned Additional Advocate-General, therefore, did not merit consideration.

6. I have heard the learned counsel for the accused-petitioner and have examined the record made available, with care. The grievance of the accused petitioner, precisely put, is that in the present case, the charge against the accused-petitioner is that he acted in violation of the order promulgated under section 144, Cr.P.C. by the District Magistrate and he is thus alleged to have committed an offence under section 188, Penal Code. The proceedings, as is evident from the record, were initiated by the police on a complaint not made by the District Magistrate but by the Assistant Estate Officer, Municipality, Mirpur. On completion of the investigation, a challan was thereafter submitted by the police in the Court of S.D.M., Mirpur who, after taking cognizance in the case, proceeded with the trial. Section 195, Cr.P.C. places a bar on the Court to take cognizance of any offence punishable under sections 172 to 188, Penal Code, or for prosecution of contempt of lawful authority of public servants except on the complaint in writing of the public servant concerned or of the public servant to whom he is subordinate. As appears from the interim order passed by the Sub-Divisional Magistrate on 30-5-1988, this requirement of section 195, Cr.P.C. according to him, stands fully complied with as according to the learned Sub-Divisional Magistrate, a written complaint by the District Magistrate was available on record on the basis of which the cognizance has been taken by the trial Magistrate. The contention of the learned counsel for the petitioner, however, is that neither the investigation was undertaken on a complaint made by the District Magistrate nor the proceedings initiated by the trial Court and the cognizance taken by the learned trial Magistrate has been based on such a complaint. The fact of the matter, according to the learned counsel, is that the investigation was started by the police on a written report made by the Assistant Estate Officer and that report is very much available on record. After completion of the investigation on the report of the complainant who happened to be Assistant Estate Officer, Municipality, a challan has been presented by the police in the Court of S.D.M., Mirpur who, after taking cognizance, has started the trial. The document which is claimed by the trial Magistrate to be the complaint by the District Magistrate, was neither filed alongwith the challan nor could it be termed as a. complaint.

7. The question that now, therefore, needs consideration is as to whether the cognizance has been taken in the case and the trial has been started by the trial Magistrate without a written complaint by the public servant For the proper resolution of the point involved, it will be helpful to have a reference to the challan or the report made under section 173, Cr.P.C.by the police to the Court concerned It has expressly been stated by the Police Officer who submitted this report in the competent Court, that on a written report made by the complainant on 19-9-1986, it has been stated that the accused-petitioner, the allottee of the Plot No33-B in Sector A-4, Mirpur, by starting construction without approval of map and without permission for construction acted in violation of the order of the District Magistrate promulgated under section 144, Cr.P.C. On receipt of this report investigation been conducted and it has been found that the accused-petitioner has committed offence under section 188, P.C. A request was, therefore, made to initiate legal proceedings and to try the accused for the offence charged. At the end of this report S.H.O. city Police listed the detail of the documents filed alongwith this report. In the list altogether 11 documents are shown to have been filed alongwith the challan the detail of which is:-

(1) Report under section 173, Cr.P.C. or the challan form

One leaf.

(2) Written application:

One leaf.

(3) Order of the District Magistrate issued

on 15-8-1986 under No. 42-1532.

One leaf.

(4) Site plan alongwith the explanatory note.

One leaf.

(5) Bail order and bail bond.

Two leaves.

(6) Property sheet.

One leaf.

(7) Certificate of the identity of the accused. One leaf.

(8) Conviction slips of the accused.

Three leaves.

The list at the end then is signed by the Inspector City Police Station Mirpur. It is interesting to note that this list entered in the challan or the report made under section 173, Cr.P.C. makes no mention of the document, which, according to the learned Sub-Divisional Magistrate, is a complaint made by the District Magistrate. There is no mention of this alleged complaint in the final report which was submitted before the trial Court and on the basis of which the learned f trial Magistrate assumed the cognizance of the case nor is there any mention of it in the list of documents mentioned in the report that were filed alongwith this challan. This document also bears no date. Besides, perusal of it makes it is abundantly clear that it is not a complaint made to a competent Court with a view to initiate proceedings but as appears from the contents of it, it merely authorizes or is permission for initiating such proceedings in the competent Court. It is not even addressed to any Presiding Officer of any Court or the competent Court.

8. The proposition may yet be looked from another angle. Even if it be assumed that this document had been filed by the police while submitting the challan before competent Court still it cannot be construed as a complaint made to any Court for starting any proceedings. At the best it can be taken as an authority to the police to file challan. So this in turn can be said as delegated authority. The proposition even when considered from this angle, it appears, confers no authority on the trial Magistrate to take cognizance in the case as the requirement of law expressly laid down in section 195, Cr.P.C. is a written complaint by the public servant concerned himself and not by any delegatee.

9. On careful consideration of the point, I am of the view that a complain: in writing by the public servant concerned is condition precedent for cognizance to be taken by a Magistrate of the offence mentioned in section 195 subsection 1(a), Cr.P.C. and that this condition must be strictly complied with. A complaint not by the public servant concerned himself or by someone to whom he is subordinate but by a person who is merely authorized in writing to file a complaint in his own name is not a good substitute for the requisite complaint so as to confer jurisdiction upon the Magistrate. Section does not permit any delegation of authority by the public servant concerned. The proposition came to be considered in Krishna Tuka Ram v. Secretary of Chief Minister A I R 1955 Bom. 315. In that case two persons sent a petition to the Chief Minister of Civil Supplies making allegations against a Jamadar to the Chief Minister. Thereafter the Secretary to the Chief Minister filed a complaint under section 182, read with section 34, A.P.C. charging those who filed the petition with giving false information to the Minister intending him to punish Jamadar concerned or with the intention that the Minister should use his awful authority as a public servant for the injury and annoyance of his subordinate who was complained against. An authority signed by the Minister authorising the Secretary to file the complaint was objected to on the ground that he had no complaint signed by the proper public servant namely the Chief Minister before him. The Magistrate overruled this objection holding that the word complaint" in section 195, C.P.C. was not used in the technical sense in which it was used in section 4 and that the Chief Minister if authorised his Secretary to file the complaint, the prosecution was not really at the instance of some other person. While considering the proposition it was held by the Court that the section does not permit delegation of this authority. The provision in fact requires that the complaint in writing must be by the public servant concerned or his superior and this condition was to be strictly complied with.

10. In the present case, as already observed in earlier part of this order, the investigation had been started by the police on the complaint made by the Assistant Estate Officer, Municipality, Mirpur and not by the District Magistrate. Again the cognizance was taken by the learned Sub-Divisional Magistrate not on the complaint made by the District Magistrate but on submission of a challan by the police. As regards the point of delegation even that is of no assistance because the final report requesting the Court to try the accused-petitioner or the challan thus submitted after completion of the investigation does not even make any mention that it is being submitted on the authority or under the direction of the District Magistrate.

11. For the afore-stated reasons I find that the cognizance has been taken by the trial Court without lawful authority. The proceedings thus taken by the trial Court in this case are quashed for having been taken without lawful authority.

S.A./352/HCA

Proceedings quashed.

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