1. The petitioner was convicted under section 3 (1) of East Pakistan Services (Temporary Powers)
2. Ordinance, 1963, and sentenced to pay a fine of Rs.
55. In default to suffer rigorous imprisonment for one month by Mr M. A. Malik, Magistrate, 1st Class, Dacca (South).
3. The allegations against the accused-petitioner were that he participated in the illegal strike then waged by the railway employees of the Pakistan, Eastern Railway, by absenting himself from duties on 27-5-1965 without any authority.
4. The plea of the accused was hat he was absent from the duties on the ground of his illness.
5. Three witnesses for the prosecution and none for the defence were examined in the case. The learned Magistrate on appraisal of the evidence, convicted and sentenced the accused-petitioner as stated above in a summary trial. The accused preferred an appeal before the Sessions Judge, Dacca against the said order of con--viction and sentence but the learned .Additional Sessions Judge dismissed the appeal as no appeal lay under section 414, Cr. P. C. Against a sentence of fine of Rs. 55 passed summarily by a Magistrate; empowered under section 260, Cr. P. C. The accused-- petitioner thereafter moved this Court and obtained the present Rule.
6. At the time of hearing of the Rule, Mr. Amirul Islam, Barrister-at-Law opened the case but soon thereafter he left the Court unceremoniously without arguing the case of the accused-- petitioner.
7. It has been seen that he is in the habit of doing so and he did so in the past too. This conduct of the learned Lawyer is highly objectionable.
8. A question has arisen in the case as to whether a prosecution against any person for an offence punishable under the East Pakistan Services (Temporary Powers) Ordinance, 1963 (herein--after called the Ordinance) can be instituted without a complaint made by the Provincial Government or by any officer authorised by it in this behalf.
9. In the instant case, the record shows that a confidential report was sent to the Superintendent of Police, G. R. P., Dacca by the Deputy Chief Engineer of Construction, Pakistan Eastern Railway, Dacca for action against the accused. The G. R. P. Police took tip the matter, investigated into the case and submitted charge---sheet against the accused. The Sub-Divisional Magistrate, Dacca (South) took cognizance of the case in persuance thereof and then transferred the matter for disposal to the present Magistrate.
10. Section 5 of the Ordinance runs as follows :-- "No prosecution against any person for an offence punishable under this Ordinance shall be instituted except on a complaint made by the Provincial Government or by any officer authorised by it in this behalf."
11. It is apparent from the above provisions that for prosecution of a person under this Ordinance a complaint shall be made by the Provincial Government or any officer authorised by it in this behalf.
12. There is nothing can record to show that provisions of above section 5, have been complied with in the case. The learned Advocate for the State has failed to produce any paper to show that the Deputy Chief Engineer of Construction, Pakistan Eastern Railway was authorised by the Government to make any complaint or take any action in this behalf. There being no com--plaint in terms of section 5 by the Government or an authorised officer, in my opinion no prosecution against any person for an offence punishable under the Ordinance can be instituted.
13. The word "complaint" has been defined in section 4(I) of the Code of Criminal Procedure. In view of 'the provisions of section 5 of the Ordinance the Sub-Divisional Magistrate cannot take cognizance of the offence without a complaint made by the Provincial- Government or any officer authorised by it in this behalf. In the instant case no such complaint having been lodged, the learned Magistrate wrongly took cognizance in the case. This initial defect has gone deep into the root of the case vitiating the entire trial. The order of conviction and sentence passed by Mr. M. A. Malik.
14. Magistrate 1st Class is therefore, liable to be set aside.
15. For the reasons stated above, the impugned order of conviction and sentence is set aside. The Rule is accordingly disposed of.