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Criminal Miscellaneous No. 485 of 1962, decided on 14th February 1963.
S. 133‑Magistrate has no power to make reference of public nuisance to arbitrator.
S. 188‑Person other than public officer concerned‑Not competent to lodge complaint Criminal Procedure Code (V of 1898), S. 195 (1) (a).
Iqbal Ahmad Siddiqi for Petitioner.
Q. M. Sleem for Respondent.
Date of hearing : 4th February 1963.
Badadur, son of Lal, Carpenter of Chak No. 247/G: B., in Chiniot Tehsil of Jhang District, who figured as one of the accused in a complaint under section 188, P. P. Code, lodged by one Mudai in the Court of Mr. Muhammad Aziz‑ud -Din, Magistrate, 1st Class, Chiniot, petitioned to this Court under sections 561‑A and 526, Cr. P. Code, for quashment of proceedings or in the alternative for the transfer of the pro ceedings to any other Court of competent jurisdiction. The petitioner prayed further that the proceedings in the criminal case be stayed till the decision of the Civil Suit filed by him challenging the order, dated the 24th of July 1961, passed on the application of Mudai under section 133, Cr. P. Code by the learned Magistrate below, directing the petitioner and his co -accused to remove the flour‑mill set up by Lal, father of the petitioner, in his house. It was contended that the learned Magistrate passed the order without taking any evidence or making an appropriate enquiry in this connection. It is in para. 4 of the petition that on the 9th of September 1961, Mudai respondent filed a complaint in the Court of Mr. Muhammad Aziz‑ud‑Din, Magistrate 1st Class, Chiniot, against the petitioner and his co‑accused under section 188, P. P. Code. The main ground urged for the transfer of the case to any other Court of competent jurisdiction was that the learned Magistrate adjourned the proceedings pending against the petitioner and others on eight different hearings without recording any evidence with the result that two of the accused, namely, Noor Ahmad and Samman, who lived at Satiana which is at a distance of twelve miles from Chak No. 247/G.‑B., had to attend the Court at every hearing and that the respondent openly declared that he would not produce evidence and thus harass the accused, particularly Samman who was an invalid.
2. The learned Magistrate was ordered to report regarding the allegations and he admitted that the order directing the petitioner and his co‑accused to remove the chakki within one month was passed at the instance of the respondent after the receipt of the report of the arbitrator to whom the dispute was referred in accordance with the wishes of the parties and the final order was made as both the parties to the proceedings had accepted the report of the arbitrator and had raised no objection. The learned Magistrate denied that he refused to stay the proceed ings notwithstanding the fact that a stay order had been granted in favour of Bahadur petitioner by the Civil Court. In para. 6 of the report the learned Magistrate admitted that the hearing of the case was postponed on eight different dates for one reason or the other, and since the counsel for the parties brought it to the notice of the learned Magistrate on the 6th of February 1962 that a civil suit between the parties was pending, he decided not to press the complainant to produce his evidence and preferred to await the decision of the Civil Court in the matter. The allega tion in the petition that Samman accused was an invalid was admitted by the Magistrate below with the modification that he was somewhat invalid while his co‑accused were quite fit.'
3. After perusing the report of the learned Magistrate, notice was directed to issue to Mudai respondent on the 2nd of April 1962. Since the respondent was not personally served in the first instance, a ‑fresh notice was directed to be issued to him and when the matter came up for hearing on the 7th of January 1963, after service of notice on the respondent it transpired that Mr. Muhammad Aziz‑ud‑Din, Magistrate, Chiniot, had in the meantime been transferred from Chiniot. The learned counsel for Bahadur petitioner, therefore, did not press for the transfer of the proceedings to another Court of competent juris diction. He contended that the proceedings instituted against his clients under section 188, P. P. Code be quashed for reasons that are two‑fold: Firstly, that the order made by the learned Magistrate on the 24th of July 1961, on the application of the respondent under section 133, Cr. P. Code was ab initio void, and, secondly, that the complaint made by Mudai under section 188, P. P. Code was not maintainable. There is force in the argument which must prevail. I find from the record that Mudai res pondent made the application under section 133, Cr. P. Code against Lal and others including Bahadur petitioner in the Court of the learned Magistrate on the 13th of March 1961, and it was fixed for the statement of Mudai on the following day. On the 14th of March 1961, the learned Magistrate referred the application to the Station House Officer of Bhawana Police Station for a report under section 202, Cr. P. Code as if the application were a complaint. On the receipt of the report the statements of both the parties were recorded and as the parties agreed that the matter be referred to M. Asghar Ali, Chairman, Union Council, the learned Magistrate passed an order on the 1st of June 1961, that the arbitrator should send his report by the 15th of June 1961. The Chairman of the Union Council after inspecting the spot, constituted a sub‑committee of the members of the Local Union Council to go into the question whether the working of the chakki by Bahadur and others was a nuisance and basing his decision on their report submitted to the Magistrate that the flour‑mill belonging to Bahadur and others be removed from its present site to some other place on the outskirts of the village. The arbitrator considered the working of the chakki as a nuisance to the complainant. There is, however, nothing in the report of the arbitrator that the existence of the chakki was injurious to the health or physical comfort of the community at large. On this report the learned Magistrate proceeded to record the statement of Mudai respon dent who naturally agreed with it as the report was beneficial to him. Bahadur and others did not object to the report of the arbitrator and undertook to remove the flour‑mill outside the village abadi within one month. Thereupon the learned Magis trate passed the impugned order.
4. The learned Magistrate did not follow the procedure as laid down under the law, but instead referred the application of Mudai to the Station House Officer for a report under section 202, Cr. P. Code as if it was a complaint and after the receipt of the report he referred the matter to an arbitrator which was contrary to law. There is no provision under Chapter X of the Code for reference of a public nuisance to an arbitrator. The learned Magistrate did not make a conditional order as required by subsection (1) of section 133, Cr. P. Code which reads as under :‑‑
"Whenever a District Magistrate, a Sub‑Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any)' as he thinks fit,
that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or
* * *
that the conduct of any trade or occupation
* * * * * * * * *
is injurious to the health or physical comfort of the community and that in consequence such trade or occupation should be prohibited or * * *
* * * * * * * * * *
that any building * * * or structure * * * is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair * * * of such structure is necessary
such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation * * * * or owing, possession or controlling such building * * * structure * * * within a time to be fixed in the order,
to remove such obstruction or nuisance ; or
to desist from carrying on, * * * such trade or occupation ; or
* * * * * * * * * * * *
* * * * * * * * * * * *
or, if he objects to do so,
to appear before himself or some other Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided."
It will, therefore, be seen that the order which could be made absolute according to sections 136, 137 and 139 of the Code did not exist at all in this case. The impugned order was made in utter disregard of the provisions of law and as such cannot be sustained.
5. The complaint filed under section 188, P. P. Code is also not maintainable. Mudai respondent filed the complaint under section 188, P. P. Code against Bahadur and others in the Court of Mr. Muhammad Aziz‑ud‑Din, Magistrate 1st Class, whose order they had disobeyed, and the learned Magistrate, without taking the trouble of looking into the Code of Criminal Procedure, summoned Bahadur and his co‑accused and decided to proceed against them. Had the learned Magistrate locked up section 195 of the Code of Criminal Procedure, he would have realised that a complaint under section 188, P. P. Code by Mudai respondent was not competent. Section 195 (1) (a) reads as below :‑
"No Court shall take cognizance :‑
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writ ing of the public servant concerned, or of some outer public servant to whom he is subordinate."
It is thus clear that the complaint under section 188, P, p. Code for disobedience of the order ought to have been made by the Magistrate concerned and not by Mudai respondent. Even if the complaint filed by Mudai is treated as an information, the learned Magistrate was precluded from proceeding against gahadur and others in view of the provisions of section 190 (1) (c), read with the provisions of section 191, Cr. P. Code, which are re produced below for the sake of convenience :‑
"190.‑(1) Except as hereinafter provided, any Magistrate or Sub‑Divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence‑
(a) * * * * * * * * *
(b) * * * * * * * * *
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed."
"191.‑When a Magistrate takes cognizance of an offence under subsection (1), clause (c) of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate."
The learned Magistrate, therefore, acted entirely without jurisdic tion when he decided to proceed against Bahadur and others under section 188, P. P. Code in the absence of a valid complaint and the continuance of the proceedings against the petitioner and his co‑accused as a result of the complaint filed against them is nothing short of an abuse of the process of the Court.
5. For all these reasons the order passed by the learned Magistrate in the proceedings under section 133, Cr. P, Code on the 24th of July 1961, and the proceedings pending against Bahadur and others as a result of the complaint filed by the respondent under section 188, P. P. Code against them are ordered to be quashed.
K. B. A. Proceedings quashed.
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