' kUSTAM S. SIDHWA, J.-This is a petition under section 439, Cr. P. C. By Rahim Dad, petitioner for setting aside the orders of the learned Magistrate, the Sessions Judge and the Additional Sessions Judge, Gujrat, dated 28th January 1976, 12th March, 1976 and 4th June, 1979 respectively, passed on the private complaint of one Muhammad Afzal against Rahim Dad and four others.
2. Rahim Dad and four others, petitioners, have also filed Cr. Mise. No, 451/Q of 1979, under section 561-A, Cr. P. C. For the quashment of the complaint, re : "Muhammad Afzal v. Rahim Dad etc.", Under section 323/325/148/149, P. P. C., pending in the Court of Mr. Anwar Ali, Additional Sessions Judge, Gujrat.
3. This judgment will dispose of both Cr. Revision No, 507 of 1979 and Cr. Misc. No, 451/Q of 1979.
4. The brief facts of the case are that on 19th May, 1975, Karamat Ali, the son of Rahim Dad, petitioner No, 1, was injured by Muhammad Afzal, respondent No, 2, and nine others, in respect of which on 20th May, 1975 F. I. R. Was lodged by Rahim Dad, petitioner No, 1, at Police Station-Kharian, District Gujrat, against Muhammad Afzal, respondent No, 2, and nine others under sections 308/147/148, P. P. C. On 25th May 1975, Karamat Ali injured, having died, the case was altered to one under section 304/147/148, P. P. C. Ultimately, the said case, after investigation, was sent up for trial, which is now pending before Mr. Anwar Ali, Additional Sessions Judge, Gujrat. On 28th July 1975, Rahim Dad, petitioner No, 1, filed a private complaint under section 302/307/147/148, P.P.C. Against Muhammad Afzal, respondent No, 2, and nine others before Ilaqa Magistrate, Kharian, who, after recording preliminary evidence of the complainant and his witnesses on 19th November 1975, summoned all the ten persons. This case was also transmitted to the learned Sessions Judge, Gujrat, who marked it to Mr. Anwar Ali, Additional Sessions Judge, Gujrat, before whom the police case was pending. On 10th January 1976, Muhammad Afzal, respondent No, 2, filed a private complaint against Rahim Dad; petitioner No, 1, and five others, under section 323/325/148/149, P. P.
C. Before the Ilaqa Magistrate, Kharian. The said private complaint related to the same occurrence which had taken place on 19th May, 1975 in the evening. The learned Magistrate adjourned the case to 28th January, 1976 for the purposes of recording the preliminary evidence of the complainant, but on 28th January, 1976 realising that the connected counter case relating to the same occurrence was pending with the Sessions Court, transferred the case to the Sessions Court "for proper orders" and directed the complainant to appear in the Sessions Court on 10th February, 1976.Without recording any preliminaryevidence, the learned Sessions Judge, Gujrat, on 12th March, 1976 issued notice to Rahim Dad, petitioner No, 1, and five others and on 14th September, 1976 transferred the case to Mr. Anwar Ali, Additional Sessions Judge, Gujrat. On an oral objection having been raised by Rahim Dad, petitioner No, 1, that the Additional Sessions Judge had no jurisdiction to deal with the said private complaint as notices to the petitioner and his companions had been issued without preliminary inquiry having been conducted under section 202, Cr. P. C. And that the private complaint case of respondent No, 2 not being exclusively tribal by the Sessions Court should not be tried by it, but should be sent back to the Magistrate for trial, the learned Additional Sessions Judge, by his order dated 4th. June 1979, overruled the objections of the petitioners and held that respondent's complaint was tribal in his Court. Being aggrieved by the orders of the learned Magistrate the Sessions Judge and the learned Additional Sessions Judge against them, the petitioners filed a revision petition against the same, which is now before me for disposal.
5. The learned counsel for the petitioners has submitted that the
5. Rivate complaint of Muhammad Afzal, respondent No, 2, against ahim Dad, petitioner No, 1, and others, under section 323/325/148/149. P. P. C, was not a case exclusively tribal by the Sessions Court and that, therefore, the Ilaqa Magistrate, Kharian, was duty bound to first record the statement of the complainant under section 200, Cr. P. C. And after holding a preliminary inquiry under section 202, Cr. P. C. Should have passed an order either under section 203, Cr. P. C.
Dismissing the complaint or under section 204, C. P. C. Issuing notices to the petitioners, It was further submitted that since the case was not exclusively tribal by the Sessions Court, the learned Magistrate had no power to transfer the same under section 190 (3), Cr. P. C. To the Sessions Court or the learned Sessions Judge had power, after its receipt from the Magistrate, to blindly issue notice to the petitioners on 12th March, 1976 without holding an inquiry under section 202, Cr. P. C.
Lastly, it was submitted that the order of the learned Additional Sessions Judge, Gujrat, dated 4th June, 1979 holding that the private complaint case of respondent No, 2 was also tribal in his Court with the counter case arising out of the same occurrence, was also, therefore, illegal. In these circumstances, it was urged that the order of the learned Ilaqa Magistrate dated 28th January, 1976 that of the learned Sessions Judge dated 12th March, 1976 and that of the learned Additional Sessions Judge dated 4th June, 1979 were illegal and, therefore, deserved to be set aside.
6. The learned counsel for the State, Ch. Khalil Ramday, Assistant Advocate-General, supported the legal submissions made by the learned counsel for the petitioners. He, however, submitted that under section 528 (1-C), Cr. P. C., a Sessions Judge had the power to withdraw any case from any Magistrate subordinate to him and to try the same himself and that, therefore, the order of the learned Magistrate dated 28th January, 1976, that of the learned Sessions Judge dated 12th March, 1976 and that of the learned Additional Sessions Judge dated 4th June, 1979 were valid and legal.
7. The learned counsel for respondent No, 2 relying upon sections 192 and 529 of the Cr. P. C.
Supported the submissions made by the learned counsel for the State.
8. I have given my anxious consideration to this case. In the first instance, the private complaint of respondent No, 2 filed before the Ilaqa Magistrate at Kharian under section 323/325/148/149, P. P. C.
Can be tried by a Magistrate of the first class or by a Sessions Court. Under the Second Schedule to the Criminal Procedure Code, the offence under section 148, P. P. C. Is triable by a Magistrate of the first class, that under section 149, P. P. C. By the Court by which the offence is triable, that under section 323, P. P. C. By any Magistrate, and that under section 325, P. P. C. By a Court of Session or a Magistrate of the First Class. Under section 28 of the Code, any of the offences under the Pakistan Penal Code may be tried by the Sessions Court, subject to any provision of the Code to the contrary. The present case is, therefore, not one exclusively triable by a Sessions Court, though it may be tried by it.
9. The learned Ilaqa Magistrate, Kharian, before whom the private complaint case came up was in the normal course bound to record the statement of the complainant under section 200, Cr. P. C.
And then, if necessary, conduct a preliminary inquiry as required by section 202, Cr. A P. C.
Accordingly, he fixed the case for 28th January, 1976 to record the complainant's (respondent No, 2's) evidence. On 28th January, 1976, his attention was drawn to the fact that the private complaint before him was one which related to the same incident which took place in the evening on 19th May, 1975 and in respect of which an earlier police challan case and the petitioner No, l's private complaint case were already pending in the Sessions Court and that respondent's private complaint case before him should also be transferred to the same Court for necessary action It is not an absolute rule that where one cross case is triable by a Magistrate and the other regarding the same occurrence is tribal by a B Sessions Court, that the case triable by the Magistrate should invariably be sent to the Sessions Court for trial. If any authority is required for this proposition, Muhammad Sadiq v. The State (1) may be referred to with advantage. But in proper cases such a practice has often been considered desirable in the public interest, to enable the cross cases to be tried side by side by the same Judge and separate judgments to be pronounced in the cases together after their conclusion, to prevent conflicting judgments being given and to avoid any possible prejudice being caused to the accused by being held guilty in one case, before decision is given in the other. Abul Hussain and others v. The State (2) and Nezamat Ali v. The State (3) support such a view. In the instant case, the Ilaqa Magistrate felt it desirable in the interest of justice to transfer respondent No, 2's private complaint to the Sessions, so that the Sessions Court could itself decide whether it would try that case with the others or not. Accordingly, on 16th January, 1976, the Ilaqa Magistrate sent the case to the learned Sessions Judge, Gujrat, for "necessary orders" in that behalf. The Code of Criminal Procedure does not lay down any specific section by which transfers of such counter cases can be made, but the Courts generally resort to this practice which has grown up over the years and which is found in the rule of propriety. However, if any section of the C Code of Criminal Procedure can be stretched to clothe the magistrate's transfer order with legality, perhaps section 192(2) read with section 529 of the said Code may be pressed into service. In the instant case, the Ilaqa Magistrate did not record the statement of the complainant under section 200, Cr. P. C. Before sending the case to the Court of Session. Since respondent No, 2's private complaint was in writing, the Magistrate, under proviso (a) of section 200 of the Code of Criminal Procedure, was not hound to examine the complaint before transferring the case under D section 192 or sending it to the Court of Session, The Ilaqa Magistrate, therefore, did not act illegally in sending the case to the Sessions Court without examining the complainant.
10. When the respondent's private complaint came up for the first time before the learned Sessions Judge, Gujrat on 12th March, 1976 the learned Sessions Judge could have either sent the same back to the Magistrate with a direction to try the case himself after taking proceedings under section 200/202, Cr. P. C., or issued notice to the parties under section 439-A, Cr. P. C. For the setting aside of the Magistrate's order dated 28th January, 1976. While it is a practice that counter cases arising out of the same incident should be placed before the same Judge so that they may be tried side by side together, special facts and circumstances in a very exceptional case may call for a departure from this rule. Revisional Courts have sometimes set aside the orders of Magistrates who have transferred counter cases, which are pending before and otherwise triable by them, to other forums, merely because the connected cases arising out of the same incident are pending in those forums. Lakshmi Narayana v. Suraya Narayana (4) is a case in point. However, the learned Sessions Judge, Gujrat, did not consider the action of the Ilaqa Magistrate as improper and with the speed with which he issued process to the accused on the very first day that the case was presented before him on 12th March, 1976 one may assume he fully endorsed and accepted the view of the Magistrate.
(1) PLD 1971 SC 713 (2) 1968 P Cr. L J 300
(3) 1970 P Cr. L J 448 (4) AIR 1932 Mad. 50Z
11. This brings me to the main question, namely, whether the learned Sessions Judge should have examined the complainant under section 200, Cr. P. C. And conducted a preliminary inquiry under section 202, Cr. P. C., before issuing process to the accused petitioners to stand their trial under section 204, Cr. P. C. Unfortunately, section 200, Cr. P. C., as presently worded, only permits Magistrates taking cogni zance of offences on complaints to at once examine the complainants on oath and to reduce to writing the substance of their examination. Th learned Sessions Judge, therefore, could not have acted under section 200 of the Code. However, the learned Sessions Judge could have himself conducted a preliminary inquiry or directed an inquiry or Investigation to be made by a Police Officer or Magistrate under section 202, Cr. P. C., but this is discretionary. Of course, if the learned Sessions Judge had himself conducted such an inquiry or had directed a Magistrate to conduct the same, the statement on oath of the complainant (respondent No, 2) and some of his witnesses would have been recorded.
But since the language of section 202 of the Code shows that the inquiry under this section is not mandatory and the Court may in appropriate cases dispense with it, a question arises whether the order of the learned Sessions Judge dated 12th March, 1976 can be said to be illegal. When one reads section 204 of the Code, it becomes apparent that before a Court can issue process, there must be "sufficient ground, for proceeding". Sufficient ground in a private complaint case obviously does not mean the written complaint alone; it means the complainant's deposition supported by such further oral or documentary evidence as the complainant has produced before the Court holding the inquiry under section 202 or before such Magistrate or Police Officer to whom the inquiry or investigation has been transferred, together with the report of such Magistrate or Police Officer. Since the learned Sessions Judg did, not record the statement on oath of the complainant (responden No, 2) or that of other witnesses of the complainant under section 20 Cr. P. C., there was no sufficient ground for proceeding with the case, within the meaning of section 204, Cr. P. C., and the issue of process to the accused petitioners was, therefore, illegal. It is regrettable that a lacuna exists in section 200, Cr. P. C. And that this section has not been suitably amended to enable a Sessions Court when dealing with a private complaint case to mandatorily record the statement on oath of the private complainant. It is hoped that this amendment will be effected in the near future. However, since the language of section 204 of the Code is somewhat firm and requires sufficient ground to be present before the Court can issue process, the language of section 202 of the Code, in so far as it applies to a private complaint must, therefore, be read ex debito justitiae as placing a compulsion on the Sessions Court to record the statement on oath of the complainant and his witnesses, if any, under that section, before issuing process.
12. Still further, it is also regrettable that the language of subsection (1) of section 193 of the Code is somewhat perplexing and open to confusion. This section, as it presently exists, prevents a Sessions Court from taking cognizance of any offence as a Court of original jurisdiction, unless the case has been sent to it under section 190(3), Cr. P. C. The cases that can be sent to it Ander section 190(3) are those which relate to offences exclusively triable by it. But there are cases which cover offences which are not exclusively tribal by a Sessions Court, but which may be sent to it for trial under section 192 or 346 or 526 of the Code, or a case like the present, which requires to be tried with the counter case, on the rule of propriety. What is the position of such cases under section 193(1) of the Code ? Is the Sessions Courtbarred from taking cognizance of such cases, as they cannot be sent to it under section 190(3) of the Code? Section 193 should be suitably amended to enable a Sessions Court to take cognizance of any offences a Court of original jurisdiction, not only when the case has been sent to it under section 190(3), but also when it has been sent to it under section 192 or section 346 or section 526 of the Code or after the Court itself has taken action under sections 202 and 204 of the Code. However, since subsection (1) of section 193 starts with the words "Except as otherwise provided by this Code", one must look to the other sections of the Code to see if any one enables a Sessions Court to take cognizance of cases covering offences not exclusively triable by it. Section 526(1)(c)(ii) is one such provision which compels a Sessions' Court to take cognizance of such a case. Section 480 of the Code is! Another. See Sailen Chandra Das v. The State (1). Since in a privateG complaint case which relates to an offence not exclusively tribal by a Sessions Court, the Sessions Court can act under section 202 of the Cod and issue process thereafter under section 204, if sufficient ground exists, section 204 can be treated as an exception to subsection (1) of section 193 ; for otherwise, sections 193 and 204 cannot co-exist and such a case must fail and be stifled by the bar contained in subsection (1) of section 193. Sections 28, 193, 202 and 204 can harmoniously co-exist side by side and they must be so interpreted and construed so as to maintain their harmonious co-existence. This can only be achieved by treating section 204, Cr. P. C.
As creating the exception to section 193. However, section 193 of the Code requires to be properly amended, to bring about a proper rationalization, so that cognizance of all offences which it can try under the 8th column of Schedule II of the Code can be taken by a Sessions Court as a Court of original jurisdiction.
13. Notwithstanding the fact that the order of the learned Sessions Judge dated 12th March, 1976 is illegal and has been passed with material irregularity, the question still remains whether the failure to examine the complainant ex debito justitiae or to hold a preliminary inquiry under section 202, Cr. P. C., is curable under section 537 of the Code. As observed already, the language of section 200 of the Cod only compels a Magistrate to record the statement of the complainant and so far as the provision of section 202 is concerned, the inquiry is discretionary. The failure to comply with these two provisions cannot entail invalidation of proceedings taken. The 'defect at best is a mer irregularity and apart from the question of prejudice, cannot vitiate the proceedings. It is not disputed that the police challan case and petitioner No. l's own private complaint case relating to the same incident are pending before the Additional Sessions Judge, Gujrat, awaiting trial. The injuries caused to respondent No, 2 and his wife find mention in those proceedings, as both these persons were sent by the police for their medical examination. The case of the respondent is his defence in the police challan case. It cannot be said that the petitioners are not aware of these facts. Even otherwise, the petitioners did not raise any objection to the Sessions Judge's order dated 12t11
(1) P L R 1964 Dacca 146 ' March, 1976 at the earliest stage, as required by Explanation to section 537 of the Code. In these circumstances, no interference is called for and this petition and Cr. Miscellaneous No, 451/Q of 1979 are dismissed. However, I notice that there is no order as yet how and in what manner the three cases which are now pending before the Additional Sessions Judge, Gujrat, will be taken up by him. The learned Additional Sessions Judge will no doubt decide at the proper time which of the three cases he will try and in what manner.