Muhammad Akram petitioner, in respect of an occurrence on the night between 9th and 10th of August 1976, got a case registered with Police Station, Chatiana, District Faisalabad, in which he named Muhammad Aslam and four others as the suspects. After investigation the Police submitted a challan under section 173, Cr. P. C., against the four co-accused of respondent No. 1, the report is silent in respect of Muhammad Aslanr respondent No. 1 nor his name is placed in Column No. 2. The learned Magistrate at the time of taking cognizance did not choose to summon Muhammad Aslam respondent as accused. At the time of taking cognizance the learned Magistrate was obviously acting under clause (b) of subsection (1) of section 190, Cr. P. C. Read with subsection (3) of section 173, Cf. P. C.
Subsequently, on the recording of the evidence of the complainant, the learned trial Court vide order, dated 4-7-1978 (Annexure "B") summoned 'Muhammad Adam respondent also as an accused. This order was obviously passed under clause (c) of subsection (1) of section 190, Cr. P. C.
Muhammad Aslam accused filed a revision under section 439-A, Cr. P. C. In the Court of Session at Faisalabad and the learned Sessions Judge passing the impugned order has been pleased to set aside the order dated 4.7-1978, summoning Muhammad Aslam accused respondent No. 1 for facing the trial.
2. The learned Sessions Judge applying Abdus Sattar Molla's case (PLD-1953 FC 145), has interpreted it to mean that the assumption of jurisdiction under clause (b) of subsection (1) of section 190, Cr. f. C., excluded the jurisdiction under clause (c) of the same provision and, therefore, held the order, dated 4-7-1978 to be illegal.
3. Learned counsel for the petitioner has contended that the case relied upon by Sessionjudge vas distinguishable on facts and it did not lay the law as interpreted ay the learned Sessions Judge, the impugned order was materially irregular, in excess of jurisdiction being contrary to lave and that the view taken in the impugned order could not possibly be taken.
Chaudhary Muhammad Arif, Bar-at-Law appearing for respondent No: 1 has contended-
(a) that the petitioner is not an aggrieved party ;
(b) that the petition suffers from laches r .
(c) that Article 199 of the Constitution is not attracted ; and
(d) that no interference is called for as the impugned order has beets passed in the exercise of powers vested in the learned Sessions Court under - the Code of Criminal Procedure. Reliance in this regard has been placed on Muhammad Hussain Munir's case (PLD 1974 SC 139).
4. The petitioner lodged the F. I. R. In respect of theft of his property.) Challan has been submitted in Court on his report, in which he named) respondent No. 1 as one of the persons involved, and it is, on his statement that the order, dated 4-7-1978, impugned before the learned' Sessions Judge was passed. In these circumstances, he is a person competent to invoke jurisdiction of this Court under Art. 199 of the Constitution.
5. Learned counsel for the petitioner, answering the question of laches, has explained that the petitioner did not know that respondent No. 1 had not been sent up for trial until he appeared as a witness in Court and when he appeared and deposed in the Court, respondent No. 1 was summoned as an accused, therefore, the question of laches for filing a private complaint did not arise, the question of State not filing the appeal against the impugned order, does not make any difference as the petitioner has promptly moved this Court. I do not think that in these circumstances the relief should be denied on the ground of la ches.
The objection of the learned counsel for the respondent that Article 199 of the Constitution is not attracted or that the writ petition be dismissed following the principle laid in the case reported as Muhammad Hussain Mmir v. Sikandar and others, depends on examining question, whether the learned Sessions Judge has correctly understood and applied the law laid in the case relied upon by him and whether the view taken by the learned Sessions Judge could possibly be taken. In Muhammad Hussain Munir v. Sikandar and others the learned High Court had set aside the order of the Member, Board of Revenue only on equitable ground which is not the case here. His Lordship Muhammad Gul, J., who wrote the leading judgment in Supreme Court, was pleased to observe the grounds the principle quoted below "This case concerned the revisional jurisdiction of the High Court under section 622 of Civil Procedure Code, 1882, which was in the same terms as section 115, Civil Procedure Code, 1908. The High Court has the power to interfere in its Superviory jurisdiction under that section, if a subordinate Court has acted without jurisdiction, or has failed to exercise its jurisdiction or in exercise of its jurisdiction has acted illegally or with material irregularity. The High Court's supervisory jurisdiction under Article 98 (2) (a) (ii) of the present Constitution having regard to its nature or content is assimilable to its jurisdiction under section 115, Civil Procedure Code except in two important respects: first, the former jurisdiction being a creation of the Constitution stands in a higher pedestal than that under section 115, C. F. C., second ; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts."
Disregard of order, misapplication of the law or failure to apply the correct law or failure to follow a decision of the High Court, civil juridiction bas always been considered a good ground for-interferes to the revisiorial jurisdiction, Khun Khan Chadba v. Mahabir and others (AIR 1941 All. 261) Ch. Raghubir Singh v. rVukhand and others (AIR 1937 All. 598), and Amu heal and others v. Nurand Mal and others (AIR 1921 Sind 159). Therefore following Muhammad Gul, J. I am of the view that bearing in mind the principle of section 115, C, P. C., in a suitable case, circumstances warranting, an order can be competently passed in the nature of writ of certiorari when there is an error of law apparent on the face of the decision and this view was taken as well in the cases reported as R, v. Northumberland Compensation Appeal Tribunal Ex pane' Shaw (1952 All E R 122)T. R. v. Northranbarland Compensation Appeal Tribunal Ex parte Shaw (1951 All E R 269).
(1) c (2) AIR 1937 All. 598
(3) AIR 1921 Sind 159-(4) 1952 All E R 122 (5)1951 All E R 269
6. I have perused the case of Abdus Sattar Molla reported in Abdas Sattar Molla v. Tire Crown, on which the impugned order is based in its entirety. This judgment nowhere lays down the prothat clause (b) of subsection (1) of section 190, Cr. P. C. Or clause (c) of the same section are exclusive of each other, nor this question has been considered.
Facts relevant for appreciating the reported case succinctly stated are as follows: Abdus Sattar Molla was named as one of the accused in the F. I. R. Along with eight others. The case was investigated. Abdus Sattar Molla raised the plea of alibi. Challan was submitted in Court against eight co-accused and Abdus Sattar Moll& was not forwarded by the police to the Magistrate and from the order, dated 4-6-1949, in the order sheet it was clear that only the eight accused were treated as accused that day by the S. D. M., Khulna. That order read as follows -.
"All accused present. No report Takid to 27-6-1949. Accused a, before. On 27-6-49 the following order was made in the order Accused Abdus Sattar Molla surrendered by petition in connection with this case. Bail petition moved admitted to bail Rs. 400. Other accused present. Fixed 3rd of August 1949.
However the charge-sheet which was received on 13-10-1949, as stated already, implicated only the other eight accused and not the appellant and the S. D. M. Passed the following order that day. . .-. C. S. Under section 148/149(320, P. P. C. Received against the accused Nur-ur-Haq, Rasul Moula, Kanu Moula, Afzal Moula, Abdul Ali Moula, Khalil Moula, Abdul Rauf Moula, and Abdul Hag Moula.
Case transferred to the file of M. A. Hashmi, M,
1. C., for favour of disposal."
Nothing was mentioned in this order about Sattar Moula. Subsequently. On the recording of the evidence on 1-12-1949 the trial Magistrate passed the following order : "No use for examining the other witnesses at this stage unless accused Abdus Sattar Moula is produced to stand his trial along with other accused. Issue warrant of arrest against Abdus Sattar, 9th December 1949 for evidence which will begin afresh afterthe appearance of the accused Abdus Sattar on the date fixed."
Abdus Sattar surrendered by petition and was granted bail.
On these facts the points under consideration were :
(a) Whether the learned trial Court had acted under clause (b) or clause (c) of subsection (1) of section 190, Cr. P. C.
(b) If he had acted under clause (c), was he competent to take cognizance thereunder when he was otherwise not specially empower in that behalf, merely because, the case had been transferred to him by Mr. Qasmi, S. D. M. Who was competent and had taken seizes of the matter ; and
(c) if he had taken cognizance under clause: (c) what was the effect of omission to inform the accused of the right to have the case transferred as required by section 191, Cr. P. C.
The learned Federal Court was pleased to conclude (i) that the trial Court acted under clause (c) of subsection (1) of section 190, Cr. P. C. While taking cognisance qua Abdus Sattar Molla ;
(ii) that it being not challenged that the learned trial Coutt was not specifically empowered for taking cognizance under section 190, subsection (1) of the Cr. P. C. The learned trial Court did not acquire jurisdiction merely because the case had been transferred to it by the S. D. M. Who was competent to take cognizance under section 190, Cr. P. C. And therefore, the proceedings were coram non judice and
(iii) that the trial Court having taken cognizance under section 190, subsection (1), clause (c), had to comply with section 191, Cr. P. C., and inform Abdus Sattar Molla of his right to have his case transferred from that Court. Failure to do so was another illegality on which the conviction merited setting aside.
The proposition that a Court of competent jurisdiction having taken cognizance of the matter under clause (b) of subsection (1) of section 190, Cr. P. C. At a later stage, on having material on record, can validly take cognizance against another person under clause (c) of the same section, finds support from observations quoted below from the same judgment i. e. Abdus Sattar Molla V.
The Crown Per Shahabuddin, J. ....There was no police report before him implicating the appellant. He does not state in the judgment that he proceeded against the appellant on a police report. On the other hand he says, after the examination of P. W. 1 and P. W. 6, on 1st December 1949, I found that there was a prima Jack evidence against accused AbdusSattar as well, then on the prayer of C. I. Police he was brought before this Court, to stand his trial along with the other charge sheeted accused ..................
The trial Magistrate himself gathered from the evidence he hart recorded on 1st December 1949, that the appellant participated in the crime. It is, therefore, clear that in proceeding against the appellant he did not act under clause (b) of section 190 (1). Clause (a) of the section obviously did not apply. The only other clause that covers this case is clause (c), to act under which the Magistrate was not empowered."
So in view of his Lordship, and the Magistrate otherwise empowered, he could have taken cognizance under clause (c) of subsection (1) of section 190, Cr. P. C.
"The contention that once cognizance is taken of the offence, section 190 does not apply to the case is based on the view that under that section cognizance is taken of the offence and not the offender: This view no doubt finds support in some decisions but I and myself unable to agree with it. .Taking cognizance of the offence, has not been defined in the Code and from the fact that the Ward offender is not mentioned in section 190, it does not follow that once cognizance of the offence is taken, section 190 has no application when a person who was an accused at the start has to be placed on trial ......
I, therefore, consider that the trial Magistrate in proceedings against the appellant acted under clause (c) of section 190 (1) though he has not been empowered to do so. The trial of the appellant was, therefore, vitiated."
Their Lordships in the same judgment have also referred to the earlier rulings tacitly with approval.
Similarly, Cornelius, J.; as his Lordship then was, in the Federal Court held as follows : ....I am ire respectful agreement with the opinion indicated by the Judicial Committee in Abdul Rehman's case that when a Magistrate commences proceedings against a person in the course of the trial of another person, albeit for the same offence, such action by the Magistrate constitutes taking of cognizance as against the first mentioned person under clause (c) of subsection (1) of section 190, Cr. P. C. In view of the clear expression of opinion by the Privy Council on this point which was by law binding upon all Courts inIndia, it is unnecessary to canvass in any detail, the contrary view contained in certain of the judgments of the Indian High Courts which have been cited at ,the bar. The latter view is based in the main upon the proposition that cognizance is never taken as against persons, but always of offences, and therefore, when cognizance is taken by a competent Magistrate of an offence, it must be deemed to have been taken not only in respect of all persons who are cited as accused persons or not but also against all persons who ma y at any time in the exigencies of the trial be believed to have been involved in the offence, and who may be proceeded against on the basis of that belief. Thus, in the case of Girdhari Lal 21 C W N 1950, where the matter came up before a Court on a complaintunder section 476, I. P. C. Made by a civil Court, which cited a single accused person, and in the course of the proceedings another person was summoned as accused, when this action was challenged on the ground that the second person's name was not in the complaint the High Court held that the complaint was not of offenders, but of the whole offence, and the following observation was made- .
The Magistrate is seized of the whole case, and it is his duty, to deal with the evidence before him and see that justice is done in regard to any who tray be proved by the evidence to be concerned in that offence."
From these observations. It is more than clear that after taking cognizance of the - case against the accused challaned, at a later stage summoning of the accused for trial, against whom evidence has been brought on record, as in the hand, is being held to be, possible only under clause (c) of subsection (1) of section 190, Cf. P. C.
The reference to the trial Court being not otherwise competent to taking cognizance under clause
(c) is in relation to-being not specially empowered by the Provincial Government or District Magistrate under section 34, Cr. P. C. For exercising powers detailed in Schedule IV the same. A District Magistrate or S. D. M., can ordinarily take cognizance of the matter under section 190 of the Criminal Procedure Code, but a Magistrate of 1st Class, for exercising powers under sub-clause (a) or (b) or (c) o1 clause (1) has to be specially empowered in this behalf. .
7. In this view of the matt, the writ petition succeeds, with no order as to costs. The impugned order is set aside and the case remanded to the Court of Session, Faisalabad, for determination in accordance with the law.