This writ petition is directed against the order, dated 21-8-1985 passed by the learned Magistrate First Class Mandi Bahauddin in the case F.I.R. No. 44, dated 2-2-1985, registered under section 3/4 of Prohibition (Enforcement of Hadd) Ordinance, 1979.
2. The learned counsel for the petitioner and Mr. Tanvir Ahmad Khan, Additional Advocate-General, who appeared for the State have been heard. The record including the parawise comments filed by the learned Magistrate has also been perused.
3. On behalf of the petitioner it is argued that the learned Magistrate is not bound to accept the police report, as to the discharge of Abdur Rehman's accused from the case and has the power to disagree with the same. His jurisdiction to take cognizance of an offence under section 190(1)(c) of the Cr.P.C. Is also not disputed. It is, however, contended that the petitioner being merely an informer, till such time Abdur Rehman's was treated as an accused, no proceedings could be commenced and cognizance of the offence taken against him. It is further submitted that even if the cognizance could be taken, the learned Magistrate acted illegally in giving a direction to the police to submit a challan against the petitioner. According to his learned counsel, this direction has fore-closed the room for investigation against the petitioner and the Investigating Officer, is, likely to submit a challan incriminating the petitioner irrespective of the result of the investigation.
4. The learned Additional Advocate-General on the other hand has endeavoured to support. The impugned order. He submits that the direction to file the challan does not necessarily mean that the name of the petitioner must be placed in column No. 3 thereof. He argued that it would be open to the Investigating Officer to hold the petitioner as innocent, if no incriminating material is mustered against him.
5. I feel that so far as the cognizance of the offence is concerned, the learned Magistrate did not travel beyond his jurisdiction, under section 190(1)(c) of the Cr.P.C. A situation cannot be ruled out that in the first instance two persons may join hands in commission of an A offence but subsequently, one of them may choose to become an informer and lay entire blame against the co-accused. Thus merely because the petitioner appeared before the Investigating Officer, in the garb of an informer would not preclude cognizance under section 190(1)(c). The expression "taking cognizance" does not mean anything more than that the Magistrate has expressed his intention to initiate judicial proceedings.
The correct legal position being so, the determination of the role of the petitioner, if any, in the commission of the offence, would depend upon the result of the fresh investigation.
6. The tenor of the impugned order, seemingly has raised apprehensions in the petitioner's mind, that the Investigating Officer shall be bound to treat him as an accused and submit a challan against him accordingly. It appears that the learned Magistrate merely wanted fresh investigation of the case and had no intention to circumscribe the same. But the expression of such intention seems to have been little over-worked. As the learned Magistrate has taken judicial notice of the commission of the offence and required the Investigating Officer to collect material against the petitioner, if any, the matter had to be referred back to the Investigating Officer, to submit the challan in the light of the fresh investigation, as a result whereof, the petitioner may or may not be found to have nexus with the commission of the offence.
7. The learned counsel has also assailed the issue of a non-bailable warrant against the petitioner.
This grievance appears to be well grounded. Indeed there was no material before the learned Magistrate to justify such a step. The direction given by him in this behalf, is set aside.
8. In view of what has been discussed above, this writ petition is accepted and the impugned order modified to the extent that the Investigating Officer shall conduct fresh investigation, to ascertain the petitioner's involvement, in the commission of the offence and submit a report to the Court under section 173, Cr. P.C., on the basis of such investigation. The petitioner shall appear before the learned Magistrate on 19-11-1985 and shall be at liberty to raise there the plea that his presence before the Court during the investigation of the case is not necessary. If such a contention is raised, it shall be disposed of in accordance with law. The parties are left to bear their own costs.