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Criminal Revision No. 336 of 1961, decided on 20th Decem ber 1961.

S. 204 (1)‑Charge‑sheet submitted‑Magistrate asking Police for further report, and issuing warrant against accused, before receipt of report‑Order for issue of warrant set aside as irregular.

Atbar Ali Shah v. Reazuddin (1957) 9 D L R 69 and Krishna Bala Dasi v. Niroda Bala Dasi 41 C L J 170 rel.

Behtar Ali for Petitioner.

Dewan Anul Abbas for Opposite‑Party.

In this case a Rule was issued on the Deputy Commissioner Dacca, to show cause why the order dated 27‑12‑60, issuing warrants of arrest and proclamation of attachment against the petitioners by Mr. A. Salam, Magistrate, 1st Class, Manikganj, should not be set aside.

2. The case for the prosecution is that the petitioners along with others broke and took away major portion of a tin but belonging to the nephew of the informant Hiralal Dalal and that on these allegations a case under section 454/143/379 of the Pakistan Penal Code was started in the Saturia Police Station.

3. On 6‑11‑60, the said Hiralal Dalal filed a petition before the Sub‑Divisional Officer, Manikgani through the Circle Inspector of Police in which he implicated 48 persons alleging that those people were responsible for the occurrence as alleged and that Mr. A. Salam who was on that day in charge of the office of the Sub‑Divisional Officer issued warrants of arrest against the accused persons. After investigation by the police, a charge‑sheet was submitted under sections 147 and 448 against 15 persons with a request to discharge others.

4. The learned Magistrate received the charge‑sheet on 27‑12‑60 and on that day after having noted that the charge‑sheet was submitted under sections 147, 379 and 448 of the Pakistan Penal Code against 15 persons, he made the following order:

"Ask I. O. to report as to other accused. To date." On the same day he again made the following order:

"Later: It is a bit curious that accused Majid, Elahi, Kalu and Chan Mia who are alleged to be main accused in the statement of the complainant and whose interim bail bonds were rejected by the learned S. J., and who have not yet surrendered in Court, are not sent in charge‑sheet. Perused the charge sheet, case diary and statements of complaint and other relevant papers. There are sufficient materials to disclose the complicity of the above accused in the offence. Issue W/A and PEA against the above 4 accused and also against accused Udai with notice to sureties against forfeiture of their bail bonds. To date."

The order of the learned Magistrate directing for a report about accused persons includes the four petitioners. But without wait ing for the report, he issued warrant of arrest and proclamation of attachment against them as is indicated in the subsequent order made on the same day.

5. Mr. Behtar Ali, learned Advocate for the petitioners submits that the learned Magistrate was quite competent to take cognizance on the police report and issue processes of the Court against the persons who were not charge‑sheeted by the police but once he asks for a further report, it clearly indicates he does not consider it proper to take action one way or the other, before obtaining a further police report and that being the position, the Magistrate cannot issue warrants of arrest and proclamation of attachment against the petitioners. The learned Advocate placed the decision in the case of Raghunath Puni and others v. Emperor (A I R 1932 Pat. 72), and submitted that this decision was not contrary to his contention, inasmuch as, he admits that a Magistrate will be within his statutory right to take cognizance of a case and issue processes against persons against whom the police did submit charge‑sheet but his only grievance is that if the Magis trate thought necessary to ask for a further report he should have waited for the same.

6. The learned Advocate for the opposite‑party, Mr. Dewan Ali Abbas strenuously argues that reading of the order as a whole indicates that on the materials before him, the learned Magistrate was satisfied that so far as these four petitioners were concerned, he would be fully justified in taking action against them.

7. A decision of this Court in the case of Atar Ali Shah and another v. Reazuddin ((1957) 9 D L R 69), lays down that if a Magistrate ask for further report it is his duty to wait for the same and then to pass an order satisfying himself on the enquiry which is completed in accordance with his direction. I respectfully agree with this view and I am of opinion that in the case before me, the learned Magistrate was quite competent to take action on the police report already submitted to him, but as he asked for further report he was required to wait for the same. This view also finds support in the case of Krishna Bala Dasi v. Niroda Bala Dasi (41 C L J 170), in which it is held that the order summoning the petitioners was not regular when the Magistrate asked for a report and did not wait

8. I am, therefore, of opinion that the impugned order should be set aside. It is pointed out by the learned Advocate for the petitioners that a report was in fact submitted by the police on the next very day i.e., on 28‑12‑60. Learned Advocate for the opposite‑party rightly contends that the report which the police has submitted in pursuance of the order of the Magistrate does not appear to be a true compliance with the direction of the Magistrate as it does not even discuss the case against the peti tioners far from throwing any new light. As this is the report to be considered by the Magistrate, I do not express any opinion on it. In order to satisfy the requirement of law the Magistrate will apply his mind to this report for what is worth, or if any other report has been subsequently submitted by the police and pass such order as he may consider necessary. I want to make it clear that the Magistrate is permitted in law to issue fresh order of warrants and proclamation of attachment if he considers necessary after applying his mind to the report of 28‑12‑60 or a subsequent one, if any.

9. In the result, the Rule is made absolute, the order dated 27‑11‑60, is set aside and the case is sent back to the learned trial Magistrate to take such action as he considers necessary on the report submitted to him on 28‑12‑60 or of a subsequent date, if any, in the light of the observation made above.

S. B.

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