' Both orders of Tehsil Criminal Court, dated January 12 and 14, 1986 arise out of common criminal proceedings. Therefore, the points in question are decided by single order.
2. Muhammad Saleem, petitioner made a complaint to Tehsil Criminal Court, Mirpur, under section 307, A.P.C., wherein he attributed the charge of assault and attempt to murder in accomplishment of common object of accused persons, resulting in injuries on his person. The incident occurred on December 6, 1985, wherein the parties in an encounter, attacked each other and injuries were sustained by both sides. Shan Ali and others who were made accused in the private complaint, made a report at the Police Station against Muhammad Saleem and his associates and ascribed them as aggressors. The case was registered against Muhammad Saleem and others and some of the accused persons were arrested who are eagerly pursuing their bail plea presently awaiting decision of this Court.
3. The trial Court (Tehsil Criminal Court), on receipt of the complaint, postponed it for the statement of the complainant as on the said day, the counsel of the complainant was occupied in another Court. Subsequently, on persuation of the learned counsel for the complainant, it was considered proper to direct the local police to inquire into the matter and submit its report to the Court. This order was passed on 12th January, 1986.. The local police in compliance with the direction of the Court, registered the case and started investigation. Shan All and others moved the trial Court for issuing direction to police to refrain from arresting the accused persons and making recovery of weapons of offence, in consequence of its investigation. On acceptance of the request, the trial Court, on January 14, 1986, ordered the police to confine its investigation in the light of application, by submitting its report to the Court. Muhammad Saleem, petitioner, feeling aggrieved of the order of Court, invoked inherent jurisdiction of this Court under section 561-A, Cr. P. C. For quashment of the order. Meanwhile, Abdur Razaq also felt advised to move an identical application under section 561-A, Cr. P. C. For quashment of order of January 12, by which the police was directed to investigate in the matter. In the first petition, it is contended that after issuance of direction of inquiry into allegations listed in the complaint, the trial Court has no jurisdiction to issue a second direction by restricting the scope of investigation by police, including the arrest of the accused and recovery of weapons of offence, etc. The second petition raises an objection that issuance of direction for investigation by police, without examining the complainant as envisaged by the proviso of section 202, Cr. P. C. Vitiated the entire proceedings. The learned counsel for the parties, elaborated their respective contentions by citing various authorities on the points.
4. For systematic and convenient disposal of the objections, the proposition raised in petition by Abdul Razaq is considered first. Section 200, Cr. P. C. Makes it clear that a Magistrate taking cognizance of an offence, on complaint, shall at once examine the complainant upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and by Magistrate. This provision was subject to exceptions listed in different provisos. Section 202 of the Code envisages that any Court on receipt of the complaint of an offence of which it is authorised to take cognizance, or which has been sent to it under section 190, may, if it thinks fit for reasons to be recorded, postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case or direct an inquiry or investigation to be made by another Magistrate or police officer, or by such other person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Proviso under subsection (1) contemplated that, save where the complaint has been made by a Court. No such direction shall be made unless the complainant is examined on oath under the provisions of section 200, Cr. P. C. The present case is covered by section 202 (1) and proviso made thereunder. As mentioned earlier, on receipt of the complaint, the complainant present in the Court was not examined by the Court and the case was postponed for recording statement of the complainant. On the next date, on pursuation of the learned counsel for the complainant, instead of examining the complainant, trial Court felt advised to direct the local police for inquiry into the allegations and report. Mr. M. Y. Surakhvi, the learned counsel for the petitioner, contended that examination of the complainant, as laid down under the proviso, was mandatory and a departure to comply with this condition, rendered the proceedings nullity.
5. The provisions of sections 200 and 202, Cr. P. C. Lay down a procedure applicable to complaints made to Magistrate or Court, as the case may be. In both sections, it is provided that on receipt of a complaint, the complainant shall be examined on oath by Court. The use of word "shall" reflects that the restriction enforced under both sections, makes it obligatory on Court to examine the complainant at the time of receiving a complaint. The object of the condition, as it appears from the stage of the proceedings, is that the Court, before issuing process to accused, must ensure that complaint is not false, frivolous or vexatious and that in consequence of it, the position of accused is not jeopardised. Unless the Court is satisfied that a prima facie case is made out against an alleged accused, it is not obliged to issue process. The procedure laid down under section 202, Cr.
P. C. Envisages the stage of preliminary inquiry to ascertain truth of the allegations contained in complaint. The preliminary inquiry can be made by Court before whom complaint is made or Magistrate or police or another person to whom duty to enquire into truth of allegation is entrusted.
When preliminary inquiry is entrusted to another Magistrate or a police officer or some other person, such Magistiate, police officer or person is enjoined upon to submit report containing material substance of inquiry or investigation, to the Court to enable it to pass an order in the light of provisions of section 203 or 204 of the Code. The law does not restrict the discretion of the Court to confine to report submitted to it as no provision of section 202 prescribes such a restriction. On receipt of report, the Court, if not satisfied with the report or otherwise considers that the report is insufficient, is authorised to hold further inquiry or authorise some other agency contemplated by law, to inquire or investigate into matter. The scope of preliminary inquiry is, therefore, not restricted in any manner. On this view of the matter, Court has to examine the complainant before ordering another Magistrate or police officer for holding investiga tion or when complainant is not examined by it at that stage, it can examine the complainant at the time of receiving the report. The obviou object of the proviso laid down under section 202 is to find out that the allegations are not false.
Moreover, an omission to examine the complainant before directing an inquiry or investigation by another Magistrate or police officer, does not materially affect the interest of accused as at that stage, accused is not summoned to face trial. In other words, prier to passing of an order under section 204, non-compliance with the procedure does not materially prejudice the accused.
6. A departure in procedure ordinarily does not invalidate the proceedings unless it is accompanied by injustice or prejudice to accused. In absence of substantial injustice and prejudice to defence, an omission or derogation to procedure laid down under the Code, is deemed as an irregularity and not an illegality. Moreover, an accused can raise objection to an omission or departure in procedure under the Code at the stage when be is called upon to face trial. Unless process is issued to him or he is called upon to face charges, a proceeding, particularly in the nature of preliminary inquiry, cannot be questioned at that stage. An objection at such stage is premature. In other words, an objection to omission to examine the complamant can only be raised by accused when he is called upon to face trial and it is satisfied that such an omission has caused material injustice or prejudiced the accused. Therefore, unless preliminary inquiry is complete and in its consequence, an order is passed under section 203 or 204 of the Code, an objection to that direction is not available.
7. This proposition invariably received attention of the superior Courts of Sub-Continent. According to one view, an omission to examine , complainant before sending the case to another Magistrate or police for inquiry or investigation, unless accused is prejudiced or substantial injustice is made, is considered an irregularity and not an illegality. In view of the learned Judges, such an irregularity is curable under section 537, Cr. P. C. The other view, as contended by Mr. M. Y. Surakhvi, is materially different from the first view as, according to the learned counsel, an omission to examine the complainant before sending the complaint to another Magistrate or police for inquiry and investigation, is an illegality which invalidates the whole proceedings. The first view appears to be correct and I concur with the same as unless it is satisfied that the accused is prejudiced or injustice is done to defence, mere omission to examine the complainant cannot be declared an illegality. The learned Judges who contributed to the other view, advanced no reasons in support of their opinion and confined to a strict adherence to the rule of procedure. The leading case in favour of the first view is Shamim's case (1) wherein Mr. Justice S. A. Rahman made a deep analysis of the proposition in the following observations :- "It may be observed that the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sin qua non of valid proceedings, in all circumstances. In a case where the complaint has been made by a Court or by a police servant, this section expressly declares that there need be no examination of the complainant before issuing process. 1here is no provision in the Code to the effect that a failure to follow the provisions of section 200 in respect of examination of the complainant entails invalidation of the proceedings taken. The history of this section apparently bears out the contention raised on behalf of the State that the defect amounts to a mere irregularity and apart from the question of prejudice, would be insufficient to vitiate the proceedings. In the Code of Criminal Procedure, Act X of 1872, express provision was made in the last clause of section 144, to the effect that where the complaint has been made by petition and the Magistrate neglects to examine the complainant, the trial of the person accused, shall not be set aside on this ground.
This provision was omitted from the Code of 1898, in view of the provisions contained in section 537 of the Code, which serve the same purpose in more general terms. The explanation to that section says that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned in a failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings."
' In view of the learned Judge, the determining factor of omission to examine the complainant was proof of apparent prejudice to accused or failure of justice. Unless prejudice to an accused or failure of justice is shown. An omission to examine the complainant on oath is mere an irregularity and not an illegality and the same is curable under section 537 of the Code.
' In Bharat Kishore La! Singh Deo's case (2) it was held that an omission to examine the complainant on oath is not an illegality but mere an irregularity, unless, of course, by reason of such irregularity the case of accused was put to any substantial injustice. The relevant observations are reproduced :- ..... Every High Court in India has held that the omission to examine
(1) PLD 1966 SC 178 (2) A! P. 1929 Pat. 473 the complainant on oath is in fact not an illegality but is an irregularity and being an irregularity the next question that arises is as to whether the petitioner has by reason of the irregularity been put to any substantial injustice."
' In Dessibhai Khushalbhai's case (1) the complaint was transferred by the Magistrate to another Magistrate who proceeded with the case without taking fresh verification of the complaint. It was held that the latter Magistrate should have re-examined the complainant and reverified his complaint but his failure to do so, was merely a technical irregularity and did not vitiate the proceedings.
' Dulan Dayal Singh v. Emperor (2) was also a case where the Magistrate failed to take statement of the complainant on oath before sending the case for investigation under section 202, Cr. P. C. The objection was overruled on the observations :- "Failure by the Magistrate to take the statement of the complainant on oath before sending the case for investigation under section 202, is an irregularity which is cured by section 537 and does not vitiate the trial as long as the accused have not been prejudiced."
' In Api Samal v. Bisi Mallik (3) one of the objections pertained to omission of the Magistrate to examine the complainant on oath before forwarding the complaint to police for inquiry and report under section 202 of the Code. The objection to non-compliance with the provisions of law was turned down as, in view of the learned Judge, omission on the part of the Magistrate to examine the complainant on oath was only an irregularity not vitiating the trial.
8. Mr. M. V. Surakhvi, the learned counsel for Abdul Razaq, in support of his contention relied upon Khalid Lai?f' s case (4) In that case the complaint was made against Khalid Latif, a Reporter in the Daily Imroze, Multan, under sections 500 and 501. The complaint was made tO an Assistant Commissioner who deputed Tehsildar and Assistant Food Controller for holding inquiry and report.
The Assistant Commissioner, on receipt of the report, transferred the case to the Resident Magistrate who issued bailable warrant. An objection was raised against the procedure adopted by the Assistant Commissioner. Mr. Justice Mazharul Haq quashed the proceedings as, in his opinion, the Assistant Commissioner transferred the case to Tehsildar and Assistant Food Controller for inquiry without examining the complainant in the light of provisions of section 202 of the Code. The learned Judge failed to examine the proposition in the light of the dictum of the Supreme Court recorded in Sha nim's case and confined his finding to the importance of imperative provisions of law. The learned Judge ultimately ordered for entertaining fresh complaint and its disposal in accordance with law. In that case, in view of the learned Judge, failure to examine the complainant before directing inquiry resulted in prejudice to accused as process was issued by non-compliance with this provision. In present case, it is considered that the stage of issuing process has not reached and the case is yet at the stage of preliminary inquiry. At this stage, no prejudice is shown to have been caused to accused.
(I) AIR 1938 Born. 50 (2) AIR 1945 Oudh 102
(3) AIR 1953 Orissa g3 (4) 1976 P Cr. I. J 26
9. In Ali Muhammad's case (1) proceedings were quashed by Mr. Justice Gulbaz Khan, J., as in his opinion, an order directing inquiry under section 202, Cr. P. C. On a complaint without examining the complainant on oath, was without jurisdiction, as such forming no basis for further action. In that case, the Magistrate to whom complaint was sent, on recording statement of the complaint and a witness, arrived at the conclusion that no case was made out but despite that, the learned Assistant Commissioner without examining further witnesses, issued process to accused. This case is obviously distinguishable from the facts of the present case.
10. In Abdul Mafid's case (2) a complaint was made before the S. D. M. The learned Magistrate referred the matter to police officer for inquiry and report. The police officer submitted his report in the light of the allegations and stated that the allegations were false. The report was challenged by the complainant on which the S. D. M., under the instructions of the Deputy Commissioner, sent the complaint to another Magistrate for judicial inquiry and report. The Magistrate examined several witnesses and submitted his report to the S. D. M. Who, on the basis of said report, dismissed the complaint. It is to remember that in this case neither S. D. M. Nor the police officer or Magistrate to whom subsequently the case was sent, examined the complainant on oath as envisaged by section 202 of the Code. The order of dismissal of the complaint was reversed as, in view of Mr. Justice Abdul Hakeem, the inquiring Magistrate fell in error by his omission to examine the complainant. The present case, as mentioned earlier, is distinguishable from the case of Abdul Majid as here the inquiry is yet to be made before reaching the stage contemplated under sections 203 and 204 of the Code.
11. Another authority cited by the learned counsel is Muhammad Shaji's case (3) wherein a complaint made to a Magistrate was sent for inquiry and report to Police but before the report of the police could be received by the Magistrate, the complaint was transferred by the District Magistrate to another Magistrate. Subsequently, the complaint was also transferred from the said Magistrate to a third Magistrate. On completion of inquiry, the police submitted challan before the District Magistrate who transferred it to another Magistrate. The Trial Court, after examining the prosecution witnesses framed charge against the petitioner. An objection was raised against the order of framing of charge on various grounds, particularly, against the method of investigation by police and submission of its challan instead of report to the Magistrate who directed the police for inquiry and report on the complaint. The facts of that case are, again, distinguishable from those of the present case as in that case the scope of examhing the complainant was completely exhausted and the challan was submitted by the police to the District Magistrate in derogation to the provisions of section 202, Cr. P. C. And the trial Magistrate instead of acting under the provisions of' section 203 or 204, proceeded with the trial as if police investigated the case exclusively in exercise of its jurisdiction under section 156 of the Code. The proceedings were rightly quashed for being illegal.
12. The present case, as mentioned earlier, is at the stage of preliminary inquiry being made by local police. The truth of allegations in complaint is still under investigation and police has yet to submit its report to the Court. In the circumstances, Court is vested with power to examine
(1) 1977 P Cr. L J 891 (2) 1969 P Cr. L T 692 (31 P 1. I) 1951 B 5', the complainant even at the time of receiving the report of the police. Unless the proceedings under section 202 are not exhausted and no process is issued to accused, no objection, even in absence of injustice or prejudice to the accused, can be raised. The stage is obviously premature.
13. The objection to second order as raised by Ch. Muhammad Taj, the learned counsel for Muhammad Saleem, is that the trial Court, after making an order of inquiry by local police, is not vested with jurisdiction to restrain the scope of inquiry by the police in the shape of only submission of report by refraining from arresting the accused or collecting incriminating material in the form of recovery of weapons of offence.
14. The scope of inquiry contemplated under section 202, Cr. P. C. Is in the form of preliminary inquiry to find out the truth and bona fide of the allegations made in the, complaint. When an inquiry is entrusted to police by a Court under section 202, Cr. P. C., no doubt, it is a preliminary inquiry relating to correctness of the allegrtions listed in the complaint, yet the police cannot be restricted to hold full-fledged inquiry. Including recovery of incriminating material and arrest of the accused. In addition to the mandate of Court, the police is given ample authority under section 156 of the Code to investigate into cognizable offence and to take all steps authorised to it by law, including arrest of the accused and collection of weapons of offence and other incriminating material. In Muhammad Shafi's case Mr. Justice Abdul Aziz, C. J. Examined the proposition in depth and observed.
"It is clear from section 202 that the police is competent to arrest an accused person during the inquiry or investigation on a complaint sent to them by the Magistrate under section 202 of the Criminal Procedure Code. The apprehension raised on the rulings in which a different view is adopted in the presence of the clear language of section cannot subsist. It is also clear from these observations that if the police prepares a charge-sheet Independently of the order of the Magistrate the complaint before the Magistrate is thrown into a background as the Magistrate when proceedings with the charge-sheet, would clearly ignore the provisions of sections 203 and 204 of the Criminal Procedure Code. It is, therefore, clear that the police while adopting that course, would be disobeying the instructions of the Magistrate. The proper course, therefore, for the police is to submit a report of their conclusion whatever that may be alongwith the accused if his arrest is deemed necessary by them and the accused is arrested."
15. It is an accepted rule that the police entrusted with inquiry under section 202 of the Code, has not to prepare independent charge-sheet and submit a challan in the Court having territorial jurisdiction, but it has to submit its report to the Court which entrusted the inquiry. In the present case, the trial Court has rightly directed the police to submit its rep:rt but the other part of the order whereby the scope of the inquiry by the police is curtailed, is untenable. In Gopel Naick v.
Alagirisami (1) it was observed that on receiving information in a complaint forwarded under section 202, the police can investigate under section 156 if they choose to do so. The investigation is not illegal but mere report by them is sufficient. In Rashid Ahmad's case (2) it was observed that the powers given to the
(1) AIR 1931 Mad. 770 (2) AIR 1932 Lab. 579 police by section 156 are not affected when an order to investigate under section 202 is made; and though it is not open to the Magistrate when a complaint has been made to him, to direct the police to make a charge in the same case, it is open to the police to do so if they think proper.
16. In my opinion, when an inquiry or investigation is entrusted to Police under section 202, the police is free to investigate the case when offence is cognizable, It can do so even in exercise of its powers available under section 156. But keeping in view the requirements of law, the police has to submit its report alongwith substance of evidence collected in the investigation, to enable the Court to pass suitable orders as contemplated under sections 203 and 204 of the Code. A departure to the provisions would obviously result in going beyond the framework of the scheme of section 202, Cr. P. C. Here, it is to be explained that when police receive information other than the direction of Magistrate under section 202, despite presence of complaint before the Court, it has jurisdiction to investigate into a case of cognizable offence. On receiving independent information or report about cognizable offence, police is authorised to hold independent inquiry and submit a charge-sheet or challan before the Court having jurisdiction in the matter.
17. In present case, the order of the Court to submit report is partly in accordance with law but other part of the order whereby scope of police inquiry is restricted, is untenable. It is, therefore, set aside.
18. The reasons listed above lead to the conclusion that the petition preferred by Muhammad Saleem succeeds and the counter-petition made by Abdul Razaq fails.