The petitioner is being prosecuted under section 406, P. P. C. Before the City and Additional -District Magistrate, Karachi to whom the case against the petitioner was transferred by an order the District Magistrate, Karachi dated 18th September 1968. This order of the District Magistrate contained observations which have created an apprehension in the mind of the petitioner that justice will not be done to him in the Courts subordinate to that of the District Magistrate; therefore he has filed this application under section 526, Cr. P. C. For the transfer of the case to this Court.
2. The material facts are that on 18th September 1968 the first respondent appeared before the Deputy Commissioner, Karachi with a letter containing complaints against the petitioner.
According to the said letter, as the petitioner was in the employ--ment of the first respondent, the first respondent had allowed him the use of his motor-car bearing No. KAB 5115, which he had dishonestly refused to return to him. It was also alleged that the petitioner had misappropriated monies given to him by the first respondent, therefore the first respondent requested the Deputy Commissioner to take action against the petitioner for "misappropriation of my car and money and get back the same from him." Treating it as a complaint, the Deputy Commissioner immediately passed the following order on the, letter.
"Heard petitioner. It appears he is a big harasser. City and Additional District Magistrate to please look into."
Apparently then the first respondent took this letter to the City and Additional District Magistrate, Karachi on the same day, and on the same day the City and Additional District Magistrate ordered the issue of a warrant to impound the car and notice to the petitioner to appear before him. In pursuance of this order of notice the petitioner appeared before the City and Additional District Magistrate (hereafter called the Additional District Magistrate) on 23rd September 1968, and also submitted an application containing his explanation about the dispute relating to car. No. KAB-5l
15. He said in his application that he was a partner of the first respondent in a business known as the Anwar Glass Factory and that the first respondent had given him the use of car KAB-5115 for the work of the Anwar Glass Factory, that the car had met with an accident on 16th September 1968 for which he had lodged a report immediately with the Frere Police Station, Karachi and that the car was lying for repairs with Pakistan Garage Limited, Victoria Road; Karachi. He further stated that he had never claimed any right or lien over the said car that he had never refused to return it, and that .The complaint had been falsely filed against him because the first respondent and he had differences over their business. This application was disposed of by the Additional District Magistrate by his order of 7th October 1968 by which he directed that a case against the petitioner be registered under section 406, P. P. C. Thereafter he recorded the evidence of the first respondent and his witness on 23rd October 1968 and he examined the petitioner on 4th November 1968. The petitioner repeated the assertions made by him in this application of 23rd September 1968, but a charge was prepared against him under section 406, P. P. C. And the case was adjourned so as to enable him to produce his defence. The case has not proceeded thereafter, as the petitioner filed his transfer application which has now come up for hearing before me.
3. The observations by the District Magistrate in his order of 18th September 1968, transferring the case to the Additional District Magistrate are unfavourable to the petitioner and imply or suggest that the first respondent's allegations against him are true, therefore the question for determination is whether the petitioner can get a fair and impartial trial in the Court whose presiding officer is subordinate to the District Magistrate who has made such observations against him. Both learned counsel for the State and for the first respondent submitted that, as the observations by the District Magistrate were indefencible and improper, they could not possibly influence the Additional District Magistrate because even though he was a subordinate to the District Magistrate he was nonetheless a judicial officer, and was therefore, not expected to be influenced by any observa--tions made inadvertently behind the petitioner's back. Learned counsel for the petitioner naturally argued that the said observa--tions had prejudiced the petitioner's case. He submitted that the Additional District Magistrates order of notice to the petitioner dated the 18th September 1968, the Additional District Magistrate's order dated the 7th October 1968 dismissing the petitioner's application and ordering the issue of a summons, and finally the order, dated 16-11-1968 despite the unsatisfactory evidence of the first respondent and his witness were not only illegal, but by themselves these orders shows that the Additional District Magistrate had been influenced by the District Magistrate's observations.
4. The evidence of the first respondent and his witness Idrees Ali Khan was recorded by the Additional District Magistrate n 23rd October 1963. According to learned counsel, this evidence itself showed that there was no case against the petitioner yet the learned Additional District Magistrate had framed the charge against the petitioner; therefore this reflected his bias. As the case is pending, I will not consider this argument at all lest my observations may pre-Judge the case in the lower Court. However, I have had to refer to the proceedings before the Additional District Magistrate on 23rd October 1968 because in his evidence the first respondent had produced to letters dated 5th September 1968, which according to his deposition, were marked by the Court as Exhs. P-1 and P-2. I have examined the record of the trial Court and, although it contains to letters dated 5th September 1968, neither of these letters have been marked as Exhs. P-1 and P-2. This omission is most unfortunate because it could lead to a tampering of the records. I have therefore marked them as Exhs. P-1 and P-2 and the Exhibits have been initialled by the Reader of this Court and stamped with the seal of this Court.
5. I shall now consider learned counsel's objections to the proceedings before the Additional District Magistrate and the order passed by the Additional District Magistrate on 18 September 1968. As I have observed, the first respondent appeared before the Additional District Magistrate on the 18 September 1968, and because the order for notice to the petitioner was passed on the same day learned counsel submitted that the promptness with which the Additional District Magistrate acted in the cases itself showed the influence of the District Magistrate's observations on the Additional District Magistrate. Merely because Additional District Magistrate acted promptly on the first respondent's complaint, it does not mean that he was under the influence of the District Magistrate.
Therefore, there is no merit in this argument. However, learned counsel for the petitioner, who has argued this case ably, referred me to other aspects of the proceedings before the Additional District Magistrate on 18 September 1968 which have disturbed me. Section 200 of the Criminal Procedure Code directs that before a Magistrate takes cognizance of an offence he has to record the statement of the complainant. In the instant case the Additional District Magistrate passed the following order :--
(1) Issue immediate warrants to impound the car.
(2) Call S. D. M. Of the Ilaqa.
(3) Notice to Alim to appear before me."
The letter of the first respondent which, as I have observed, has been treated as a complaint also contain the following endorse--ment :- "The contents of my application or true to the best of my knowledge."
This endorsement has been signed by the first respondent and the word underlined by me is an obvious typing error. By itself it is of no significance, but it does suggest that the learned Additional District Magistrate conducted the proceedings against the petitioner in a very hurried manner. The letter also contains the Additional District Magistrate's endorsement of the fist respondent's verification of the contents of his letter. Apparently, therefore the Additional District Magistrate has treated the first respondent's verification of his letter as a compliance of the provisions of section 200, Cr. P.' C. But section 203 of the Cr. P. C. Directs that a Magistrate "shall examine the complainant on oath and the substance of the examination shall be reduced in writing and shall be signed by the complainant" before he takes cognizance of a complaint. The Additional District Magistrate has acted in disregard of these provisions. Learned counsel for the first respondent argued vehemently that the learned Additional District Magistrate's disregard of the provisions of section 200, Cr. P. C. Was a curable irregularity, the more so as the method adopted by the said Magistrate was common in Karachi. The argument that the Additional District Magistrate's failure to comply with the provisions, of section 200, Cr. P. C. Is correct, and I am also aware that such a practice is becoming common in Karachi. However, I have to observe here that this practice is to be deprecated because it is not conducive to the ends of justice. The very object of section 200, Cr.
P. C. Is being defeated by this practice. The object of the Legislature in enacting section 200, Cr. P. C.
Was that frivolous complaints should not be entertained, therefore it prescribed that a Magistrate shall examine the complainant before taking cognizance of any offence alleged by the complaint.
It is true that even though a Magistrate has examined the complainant and recorded the substance of his examination he may erroneously' take cognizance of an offence, but if the direction of the Legislature is complied with, it will tend to ensure that a Magistrate examine the question whether an offence has really been made out before he takes cognizance of 'it. This safeguard is specially important in the case of disputes which arise out of commercial transaction, as parties may seek to use the criminal law for recovering their civil liabilities. This is a tendency which has been repeatedly deprecated by this Court, therefore in the instant case it was incumbent on the Additional District Magistrate to have Considered carefully whether the allegations of the first respondent against the petitioner really disclosed a prima facie case ofth th th criminal misappropriation or whether the complaint was filed only in order to recover promptly a civil claim by utilising the coercive, processes of the criminal law. In this view of the matter, although the failure of the Additional District Magistrate to comply with the provisions of section 200, Cr. P. C. Was a curable irregularity, this failure does raise a doubt as to whether the learned Additional District Magistrate had really considered the first respondent's case before he ordered notice to the petitioner.
6. My doubts are fortified, by the learned Additional District Magistrate's letter to the S: H. O.' Karachi dated the 18th September 1968, directing him to impound car No. KAB-5115.D, In para. 2 of this letter the learned Magistrate has written to the S. H. O. As follows :- "It appears that the complainant (the first respondent in this Court) is being harassed by one Mr. Alim Chitari. . . . . (the petitioner). The applicant has made an allegation that he, has entrusted his car No. KAB-51 15 to Mr. Alien Chitari who is not returning the same to him."
As this letter teas written without hearing 'the petitioner, it is unfortunate that the learned Additional District Magistrate should have stated that the petitioner was harassing the first respondent. Apart from the effect of these observations on the investigation agency, the learned Additional District Magistrate has merely repeated the observations of the District Magistrate against the petitioner. In these circumstances can the petitioner's apprehen--sion that he will not have a fair and impartial trial be ruled out as chimerical?
7. I shall now consider' the petitioner's objections to the learned Additional District Magistrate's order dated 7th October 1968 directing the issue of a summons and dismissing his applica--tion dated the 33rd September 1968 that the case against him should be dismissed. In this application the petitioner has pointed out that he was the first respondent's partner in a business known as the Anwar Glass Factory, that- car No. KAB-5115.Had been given to him for carrying on the work of that business, that the car had met with an accident on 16th September 1968, that he had filed an 'F. I: R.
Vide report No. 9 dated the 16th September 1968 with the Frere Police Station, Karachi and that the car was lying for repairs at the Pakistan Garage Ltd. Victoria Road, Karachi. He has further said in this application that he had never refused to return the car to the first respondent and that the complaint against him had been filed on account of business differences. It was on this application that the learned Additional District Magistrate passed his order of 7th October 1968. This order states "After reading the complaint and this application it appears that an offence under section 406, P. P. C. Is made: Call the accused by summons . . . ." As the plea of the petitioner in his application was that the first respondent's dispute with him was of a civil nature and that the prosecution filed against him was in order to harass him, I am not able to understand how a persual of the petitioner's application led the learned Additional District Magistrate to the conclusion that a case under section 406, P. P. C. Had been made out.
8. Finally, learned counsel for the, petitioner; pointed out that in his letter to the Deputy Commissioner, which had been treated as a complaint, the first respondent had alleged that the petitioner had misappropriated his car and in order to carry out that misappropriation he had falsely alleged that the car had met with an accident and was being repaired at a garage. As the Additional District Magistrate had ordered the S. H. O. To impound the car, learned counsel pointed out that the S. H. O. Must have been. Aware whether the car had met with an accident and whether it had been lying for repairs when impounded by the S. H. O. As the question whether the petitioner has falsely alleged that the car had met with an accident was material to the prosecution case, learned counsel submitted that the Additional District Magistrate should have made enquiries from the S. H. O. To verify the truth of the first respondent's allegations before framing a charge. On the other hand, learned counsel for the respondent submitted that the question whether to examine the S. H. O. Or not was within the sole discretion of the Additional District Magistrate and there was nothing illegal in his failure so to do. I agree with learned counsel for the respondent that there was no impropriety in the failure of the Additional District Magistrate to examine the S. H. O. But it would have done no harm if he had done so and it might have assisted him in determining whether a case of criminal misappropriation had really been made out by the prosecution. To say the least, the Additional District Magistrate acted hurriedly, and in the circumstances discussed the possibility that he was acting with such haste on account of the observations of the District Magistrate against the petitioner cannot be ruled out.
9. Bath the learned Counsel for the respondents argued that, in order to meet the apprehensions of the petitioner, it would be sufficient if I made observations that the District Magistrate's remarks were illegal and should not be considered at all by the Additional District Magistrate. I have no doubt that the learned Additional District Magistrate would follow any observations made by this Court. But the effect of bias can be unconscious and difficult to detect. Further cardinal principle of our jurisprudence is that justice must not only be done but seem to be done. My observations would no doubt protect the petitioner against any conscious bias against him. But it is doubtful if justice would seem to be done if the case is heard by an officer subordinate to, the District Magistrate. Therefore, in the interest of justice, this transfer application has to be allowed.
10. It is not possible to transfer the case to this Court. The nearest Magistrate's Courts are in Thatta, therefore I direct that the case should be transferred to the Courts in Thatta and the papers shall be forwarded to the District Magistrate Thatta who may bear it himself or transfer it to any competent Magistrate in Thatta. Before parting with this application, I have to add that the Magistrate hearing the case shall completely ignore the unfortunate observations made by the District Magistrate of Karachi on the first respondent's letter of 17th September 1968. I am aware that the transfer of the case to Thatta will cause difficulties to both parties, therefore, whilst hearing the case the Magistrate concerned shall give reasonable facilities to both parties for presenting their case. The application is, therefore, allowed.