' This is a petition under section 561-A, Cr. P. C. By Muhammad Aslam petitioner for quashment of a case pending against him under section 112 of the Motor Vehicles Ordinance XIX of 1965, in the Court of Special Magistrate, Punjab Road Transport Board, Central Bus Stand, Lahore.
2. The brief facts of the case are that the checking staff attached with Mr. Ahsan Bashir, Magistrate Ist Class, specially deputed with the Punjab Road Transport Board, on 1st March, 1979, checked Government Transport Bus No, GT/2336 at Wazirabad and found on spot checking that Muhammad Aslam, conductor of the said bus, had received payments for tickets from two passengers bound for Lahore/Gujrat and Gakhar/Gujrat, but had not issued the tickets and thus had deprived Government of Rs, 7.60 being the value of the two tickets. The checking staff made a noting of the said irregularity on Form T.T.-11, carried by Muhammad Aslam Conductor, which note was signed by Sh. Abdur Rehman, Assistant Superintendent Traffic (respondent No, 2), Mr. Parvez Sarwar, Ticket Examiner and Mr. Jamshed Malik. Ticket Examiner, and also by Muhammad Aslam, the conductor of the bus concerned. There and then, Mr. Saleem Khan, A. S. I. Issued challan to Muhammad Aslam Conductor, charging him with an offence committed under section 112 of the Motor Vehicles Ordinance 1965 read with rule 99 of the Motor Vehicles Rules. 1969, which challah directed Muhammad Aslam Conductor to appear before the Special Magistrate, Punjab Road Transport Board, Lahore, on 10th March, 1979. Being aggrieved by the challan filed against him in the Court of the Special Magistrate, Punjab Road Transport Board, Lahore, the petitioner preferred a petition for abashment of the said proceedings, which is now before me for disposal.
3. The learned counsel for the petitioner has submitted that the petitioner had been charged under section 112 of the Motor Vehicles Ordinance, 1965, in respect of the violation of rule 99-A of the Motor Vehicles Rules, 1969, and since the offence under section 112 of the Ordinance was a non- cognizable offence and the Spe:ial Magistrate had not granted the sanction to Mr. Saleem Khan, A.
S. I. To investigate the case, the said investigation conducted by him and the challan thereafter filed by him in the Court of the Special Magistrate, Punjab Road Transport Board, Lahore, were illegal, null and void in the eye of law, and the Magistrate, therefore, could not take cognizance of the said case. In this connection learned counsel for the petitioner cited Mst. Razia v. The State (1) and Muhammad Yaqub v. The State (2). It was also submitted that section 116 of the Motor Vehicles Ordinance, 1965 (which bore the heading SUMMARY DISPOSAL OF CASES next to it) specially directed the Court taking cognizance of an offence under the Motor Vehicles Ordinance to state upon the summons to be served on the accused that he (a) could appear by pleader and not in person ; or
(b) could by specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the Court such sum not exceeding Rs, 75 as the Court may specify.
Since such summons were not served on the petitioner, it was submitted that the trial would stand vitiated. In these circumstances, it was prayed that there were no legal and valid proceedings before the Court and that the same deserved to be quashed.
(1) 1977 P Cr. L J 328 (2) 1978 P Cr. L J 812
4. The learned counsel for the Punjab Road Transport Board, who strongly opposed the petition, submitted that the P. R. T. B. Was a statutory corpmation incorporated under section 20 of the Motor Vehicles Ordinance, 1965, that under sub-rule (n) of rule 137 of the Motor Vehicles Rules, 1969, the Board had drawn up on 10th September, 1977, a Checking Scheme for the checking of Government Transport Buses by flying squads operating under the supervision of Special Magistrate deputed to work with the Punjab Road Transport Board, that the said Checking Scheme entitled the checking staff attached with Special Magistrates deputed to work with the P. R. T. B. To conduct raids at different places in order to check evasion of Government Revenues and to ensure compliance of the rules and regulations of the Board, that by memorandum of settlement arrived at between the P. R. T. B. And the West Pakistan Road Transport Workers' Union on 11th Aptil, 1979, the conductors of buses were made responsible for the handling of all cash, that Muhammad Aslam petitioner had received cash for tickets from two passengers but had not issued the said tickets and had misappropriated Government Revenues, that the said Muhammad Aslam petitioner was found on spot inspection by the checking staff to be guilty of an offence under section 112 of the Motor Vehicles Ordinance and that, therefore, the submission of the challan by Mr. Saleem Khan A. S. I.
Attached with the checking staff to the Court of the Special Magistrate was covered by rule 137 (n) of the Motor Vehicles Rules, which validated the Checking Scheme and all actions thereunder. In these circumstances, it was submitted that the action of Mr. Saleem Khan A. S.
1. Was valid in law and that the trial before the Magistrate would not stand vitiated by the challan submitted by the said Police Officer to him. It was, therefore, prayed that no interference was called for and that the petition be dismissed.
9. The learned counsel for the State, who also strongly opposed the petition, submitted that the challan submitted by Mr. Saleem Khan A. S. I. To the Special Magistrate, Punjab Road Transport Board, Lahore, was a report in writing of facts constituting an offence under section 112 of the Motor Vehicles Ordinance made by a police officer to a Court and was covered by section 190 (b) of the Criminal Procedure Code and even assuming that a Magistrate had not given powers to the said officer to conduct an investigation into the said offence, which was non-cognizable, the filing of the report with the Special Magistrate did not invalidate the proceedings before the Special Magistrate.
In the alternative, it was submitted that the challan sent by the said police officer to the Special Magistrate could also be treated as a complaint of facts with regard to the said offence made by the police officer to the Magistrate under section 190 (a) of the Criminal Procedure Code, on which the Special Magistrate himself could take cognizance of the offence under section 200 of the Criminal Procedure Code, without examining the police officer on oath, in view of proviso (aa) to the said section. As regards the contention of the learned counsel for the petitioner that since the proper summons as required under section 116 of the Motor Vehicles Ordinance had not been served on the petitioner the trial would stand vitiated, the learned counsel for the State submitted that absence to refer to the two special concessions granted under section 116 to a person accused of an offence under the Motor Vehicles Ordinance, in the copy of the challan delivered to the petitioner would not vitiate the proceedings. At best, the petitioner could appear by pleader and not personally, or remit to the Court Rs, 75, if tic so desired. It was urged that the omission to comply with section 160 of the Motor Vehicles Ordinance was only a technical irregularity which could not vitiate the proceedings. In these circumstances, it was submitted th it no case for interference had been made out by the petitioner and that this petition should be dismissed.
6. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties. It appears that the checking staff attached with Mr. Ahsan Bashir, Special Magistrate, conducted 'a surprise check of Government Transport Bus No, 2336 at Wazirabad on 1st March, 1979. It has been admitted by Sh. Abdur Rehman, respondent No, 2, before me that the Magistrate was at Lahore on that date and not at Wazirabad. It is not disputed by the learned counsel for respondent No, 2 that the petitioner is being charged for the *violation of rule 99-A of the Motor Vehicles Rules, 1969, namely, for not issuing tickets to two passengers immediately on payment of the fares and that such contravene ton is punishable under section 112 of the Motor Vehicles Ordinance, 1965, which prescribes a fine which may extend to Rs, 100 for the first offence and a fine which extend to Rs, 500 for every subsequent offence. It is also not disputed that the offence is a non-cognizable offence in the present case. The only question which Calls for determination in this case is whether Salim Khan, A. S. I. Who challitnecl the petitioned could do so and submit the challan in Court, delivering a copy thereof to the petitioner, without securing prior permission of the Magistrate to investigate the case. The petitioner submits that since the Magistrate was personally not present at the spot at Wazirabad, the A. S. I. Had no such power. The learned counsel for respondent No, 2 submits that such permission is not necessary and that the action of the Magistrate is covered by the checking scheme framed by P. R. T. B. On 10th September, 1977, by virtue of powers conferred on the Board under rule 137 (n) of the Motor Vehicles Rules and that,' therefore, the action of the Investigating Officer is beyond reproach.. The learned counsel for the State, however, submits that the absence of the Magistrate's order under section 155 (2), Cr. P. C.
Granting permission to Saleem Khan. A. S. I. To investigate the case. Will not invalidate the proceedings before him and that, in the alternative,, the challan filed by the said police officer can .Also be treated as a complaint under section 190 (a), Cr. P. C. On which the Magistrate can take cognizance-.
7. In the first instance, I will deal with the submissions made by the learned counsel for the Punjab Road Transport Board. I have peruSed the so-called checking scheme referred to by the learned counsel as contained in Letter No, Estt. II/E 7/2/13/77/3195 dated 10th September, 1977, from the Managing Director, P. R. T. B., Lahore, addressed to all the District Managers, P. R. T. B. Services in the Punjab. This letter dOes not prescribe any special procedure for investigation of cases involving non cognizable offences under the Motor Vehicles Ordinance. This letter only prescribes the zones in which the Special Magistrates deputed to work' with the P. R. T. B. Are to exercise their jurisdiction.
Assuming the Magistrate had been present on lst March, 1979, at Wazirabad when the checking was done, perhaps it could have been said that he gave on the spot permission to the Investigating Officer to complete the investigation. But is not denied that Mr. Ahsan Bashir, Special Magistrate, was on that date in Lahore. In these circumstances, it cannot be assumed that the Investigating Officer received prior permission to complete the investigation of the non- cognizable offence before him and to submit the challan to the Court of the Special Magistrate. The letter referred to by the learned counsel for the P. R. T. B. Does not give any special power to a police officer to investigate non-cognizable cases in the absence of an order of a Magistrate.
8. I now turn to the submissions made by the learned counsel forthe petitioner and the State as regards the question whether the investigation of a non-cognizable offence by a police officer not authorised under section 155 (2). Cr. P. C. To do so, prevents the Court from taking cognizance of the offence on the report submitted by such officer or renders the subsequent trial illegal. 1 need not labour on those questions as they have been decided by a Division Bench judgment of the High Court of West Pakistan in Mst. Sadan v. The State (1), which judgment is binding on tne. In this authority, it was held that a police report in a non-cognizable offence, which the police officer had not been duly ordered by a Magistrate to investigate. Could be treated as a report falling under clause (b) of subsection (I) of section 190 of the Criminal Procedure Code or, in the alternative, as a complaint, falling under clause (a) of subsection (1) of the same section. It was also held in this case that the mere irregularity in the investigation of the case by the police officer who was not authorised to investigate the same, did not effect the legality of the trial.. The Crown-v. Mehar Ali
(2) was also followed in this respect. The two rulings cited by the learned counsel for the petitioner, namely, Mst. Razid v. The State and Muhammad Yaqub v. The State (3), do not, therefore, correctly lay down the law. In Mst. Razia's case, which is a Single Bench ;judgment of this Court, the attention of the learned Judge was not drawn to Mst.Sadan's case. Likewise, in Muhammad Yaqoob's case, which is a Single Bench decision of the Sind High Court, the attention of the learned Judgewas not drawn either to Mst. Sadan's case or to the other decisions of thatCourt. e.g., Shah Abdul Majid v.
The State (4), Walizad v. State (5) andMami v. The State (6). Therefore, following the view taken in Mst. Sadan's 1 case, I hold that the challan by the police officer in the present case can be treated both as a report of a police officer or a complaint under clause (b) A or clause (a) of subsection (1) of section 190 of the' Criminal Procedure Code and that the cognizance of the same by the Magistrate cannot vitiate the trial before him.
9. The only other matter which requires clarification is whether the challan filed by the police officer in the instant case before the Special Magistrate is a report of a police officer falling under clause
(b) of subsection (1) of section 190 of the Criminal Procedure Code or a complaint,. Falling under clause (a) of subsection (1) of the same section. This is a case where on spot inspection the police officer and other members of the checking staff apprehended the petitioner who had committed an offence. There could be other cases where a police officer may apprehend a person committing an offence before his very eyes. In such cases, the challan which is filed-and of which a copy is generally served on the accused-usually consists of a printed sheet of paper which gives in brief a complaint of facts which constitute the offence, the law under which the accused is charged and the particulars of the Court where and the date on which he has to
(1) P'L D 1965 B J 12 (2) P L 13 1956 FC 106
(3) 1977 P Cr. L J 328 (4) 1978 P Cr. L J 812
(5) PLD 1958 Kar. 86 (6) PLD 1960 Kar. 204
(7) PLD 1964 Kai.. 34' ' appear. No investigation, in the established sense, is conducted in these cases. Such challans submitted in Court are strictly, therefore, not reports of police officers falling under para. (b) of subsection (1) of section 190 of the Criminal Procedure Code. They are appropriately complaints of facts showing the offences charged and fall under para. (a) of subsection (I) of the same section.
In Mst. Sadan's case, Mahrnood, J: held that there was nothing in taw to prevent a police officer from making a complaint in a case .Of which the facts had come to his knowledge and which he could not investigate. In Public Prosecutor, v. Ratnavelu Chetty (1). Woller, J who was dealing with a police challan sent up under section 211, P. P. C. In which no investigation was conducted, held that as in the case before him there was nothing to investigate and the police required no order to investigate, he could see ,nothing in the Code which prohibited the police from laying information direct to. The Magistrate or anything which prevented the Magistrate from taking cognizance on that information. He, therefore, treated the challan sent up before the, Magistrate as a complaint.
For further cases in this connection- and a correct enunciation of the law in this respect, the views of Fawcett, J. In 'Emperor v. Shiva swami Guruswami (2) may be referred to with advantage. In these circumstances, the police challan in the instant case is apparently complaint and not a police report. In view of proviso (an) to section 2 of the Criminal Procedure Code, the police officer does not have to beexamined on oath by the Magistrate taking cognizance of the complaint Unless the Magistrate, for any particular reason wants to direct an inquiror investigation to the complaint, he can straight away ' issue process for compelling the attendance of the person complained against
10. As regards the last submission made by _the learned counsel for the petitioner, namely, that as the challan copy delivered to the petition was not signed by the Magistrate and did not mention the fact that th petitioner could appear by pleader and not in person or could by specified date prior to the hearing of the charge plead guilty to the same by registered letter and remit to the Court such sum not exceeding seventy-five rupees as the Court may specify, that the entire trial would stand vitiated, the said objection is too far-fetched. The object of delivering a copy of the challan to an accused is to give him advance information of the poli complaint, the brief particulars of facts which constitute the offence or offences against him and the particulars of the Court where and the date o which he has to appear to answer the same, so that he can make advanc preparation for his appearance and defense. One would expect 'that th accused would appear in view of the service of the copy of the challan on him. But if he does not appear, the Court would obviously issue notice or summons for his appearance in the normal course. In the instant case, the summons would obviously issue to the petitioner in the form prescribed by section 116 of the Motor Vehicles Ordinance, 1965. But presently it is too early to say whether the need for issuing the summons to the petitioner has arisen or not. But as the petitioner now has information of this section, he can take advantage of the concessions allowed by that section, if he so desires, and I am sure the Magistrate will not obstruct him from exercising those rights.
11. For the foregoing reasons, there being no merit 'in this petition, the same is dismissed.
(1) 27 Cr. L J. 1031 (2) AIR 1927 Bom. 440