This judgment shall dispose of two connected matters, namely, Criminal Reference No. 51 of 1968, and Criminal Miscellaneous Application No. 365 of 1969, which arise !n the following circumstance.
2. Naqulram the petitioner in Criminal Miscellaneous No. 365 of 1969, and respondent in Criminal Reference No. 51 of 1968, is a resident of Ghotki where he is employed as a clerk of an Advocate; while Premchand respondent No. 1 in Criminal Miscellaneous Application No. 365 of 1969 and respondent No. 2 in Criminal Reference No. 51 of 1968 (hereinafter referred to as the complainant) is a copyist in the Court of Civil Judge and First Class Magistrate, Ghotki. On 19-t2-1967, the complain- -ant filed a direct complaint in the Court of S. D. M., Rohri at Ghotk-i against respondent Naqulram.
The allegations in the complaint were that on 19th December 1967, the complainant was busy with his work in his office when respondent Naqulram came there with a knife and attempted to cause injuries with the same to complainant Premchand but the latter warded oft' the blow. Thereafter, respondent Naqulram gave kicks and fist blows to the complainant and robbed him of Rse 50 In currency notes which were In his pocket. On the alarm raised by the complainant P. Ws. Mushtaq Ali and Ghulam Muhammad came there immediately and saw the whole incident. Respon: dent Naqulram, however, escaped from the scene of offence. The complainant informed of this occurrence to Mr. Lachman--das, Advocate, under whom Naqulram was working but the latter did not take it seriously. The complainant there--after, filed the complaint in the Court of S. D. M. For proceedings against Naqulram under sections 394 and 323, P. P. C. The learned S. D. M. However, forwarded this com--plaint to the Civil Judge and F. C. M., Ghotki "for disposal accord--ing to law."
The learned Civil Judge and F. C. M. Held a prelimi--nary enquiry in the course of which he recorded the statements of the eye-witnesses Mushtaq Ali and Ghulam Muhammad and. Thereafter issued process against Naqulram by the following order "From the P. E. It appears that an offence under section 397, P. P. C., is committed. Issue non- bailable warrants for 1-1-1968.
(Sd.) Illegible, 22-12-67.
Civil Judge & F. C. M., Ghotkl."
3. The learned Additional Sessions Judge, Sukkur has made a reference to this Court under section 438, Cr. P. C. Recommending that this order should be quashed on the following two grounds :--
(1) That the learned Civil Judge and F. C. M. Did not issue any notice to Naqulram before holding the preliminary enquiry.
This according to the learned Sessions Judge was illegal as "it was the duty of the learned lower Court to have Issued notice against Naqulram".
(2) That the process has been Issued for "an offence" under section 397, P. P. C. Which is merely an enabling section and does not create a distinctive offence.
4. Both the learned counsel for the State as well as the learned counsel appearing on behalf of the respondent Naqul--ram do not support this reference. The learned counsel contend before me that there is no merit in either of the two grounds mentioned by the learned Additional Sessions Judge.
5. Chapter XVI of Code of Criminal Procedure deals with the procedure to be adopted by a Magistrate when a complaint has been made to him. Section 200 thereof provides 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 also by the Magistrate. It is, however, net incumbent on :he Magi~rrase to issue process against the person complained at once, but he may postpone the same as provided under section 202, Cr. P.
C. Which reads as follows I--- "(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, If he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of assertain--- lug the truth or falsehood of the complaint: Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complain--ant has been examined on oath under the provisions of section 200.
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer Incharge of a Police Station, except that he shall not have power to arrest without warrant.
(2-A) Any Magistrate inquiring into a case under this section may, If he thinks fit, take evidence of witnesses on oath"
6. The last section in this Chapter Is section 203, which provides that "The Magistrate before whom a complaint Is made or to whom It has been transferred, may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202, there Is In his judgment no suffi-- cient ground for proceeding. In such cases he shall briefly record his reasons for so doing"
7. The scope of Chapter XVI of the Cr. P. C. Is to make a distinction between baseless and substantial cases from the very beginning with the object of ensuring that no person shall be compelled to answer a criminal charge unless the Court !s satisfied that there is a prima facie case for issuing process against him. By this process the Court i$ afforded an opportu--pity of confirming or removing any hesitation it may feel ink respect of issuing vrocess against the accused. It is, only when, the Magistrate Is satisfied that there is a prima facie case that h would issue process. This inquiry is not intended to be a substltu#e for a regular trial but only a preliminary Inquiry which is held with the object of saving a person complained against on baseless allegations from facing unnecessary harassment of a criminal trial.
8, The commencement of the proceedings before the Magis--trate Is dealt with in the next Chapter. i.e., Chapter XVII of the Code. Section 204 thereof which deals with issue of process reads as follows :- "(1) If In the opinion of a Magistrate taking cognizance of . En offence there is sufficient ground for proceeding, end the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, he shall issue his summons far the attendance of the accused. If the case appears to be one in which according to that column a warrant, should issue in the first instance, he may issue a warrant, or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdic--tion.
(2) Nothing in this section shall be deemed to affect the provisions of section 90.
(3) When by any law for the time being In force any process-fees or other fees are payable, no process shall be issued unless the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint."
8. It can thus be seen on a bare perusal of this section that the stage of summoning the accused is not reached if the Magistrate finds that there is no sufficient ground for proceed. Tugs and he can issue process only if there is a prima facie case. It is then that the accused person is summoned to answer the allegations made against him in the complaint. If the person complained against were to be summoned immediately, as the Additional Sessions Judge seems to think, in my humble opinion, the very object of a preliminary enquiry would be defeated.
9. The second ground advanced by the learned Additional Sessions Judge is equally devoid of merit. In the complaint filed against Naqulram sections 323 and 394 of the Pakistan Penal Code were specifically mentioned. As, however, it was alleged therein that he was armed with a knife and had actually attacked the complainant with it, the learned Magistrate was right in considering the application of section 397, P. P. C. If, therefore, on account of inadvertence he mentioned the offence as one under section 397, P. P. C. Instead of section 394/397, P. P. C., I do not consider this omission to be of such a nature as should compel this Court to quash the entire proceedings.
10. The Code of Criminal Procedure like other procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he I is told and clearly understands the nature of the offence of which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there Is substantial compliance with the outward forms of the law, mere mistakes in procedure, more inconsequential errors and omissions in the trial are regarded as penal by the Code and the trial is not vitiated unless the accused can show substantial prejudice That, broadly speaking, is the basic principle on which the Code is based, as can be seen from Chapter XLV of the Code relating to "irregular proceedings". Under section 535 as well as 225, Cr. P. C. Even a defect in the charge or a complete absence thereof would not invalidate any proceedings in the absence of a failure of justice.
It is, therefore, difficult to accept the contention that the entire proceedings relating to this case be quashed simply because the order of the Magistrate issuing process inadvertently mentioned section 397, instead of section 394/397, P. P. C.
11. The reference made by the learned Additional Sessions Judge fails en both the grounds which had appealed to the learned Judge and is, accordingly, rejected. I shall now consider the Miscellaneous Application filed by the petitioner Naqulram for quashing the same order of the Civil Judge and F. C. M., Ghotki.
12. Mr. Abdul Latif Channa, the learned counsel for the petitioner contendcd that the proceedings against Naqulrm should be quashed as the learned Sub-Divisional Magistrate could not transfer the case under section 192, Cr. P. C. Before he had taken cognizance thereof. Reliance is placed on the language of section 192, Cr. P. C. Itself which reads as follows :- "(1) Any District Magistrate or Sub-Divisional Magistrate may transfer any case, of which he has taken cognizance for inquiry or trial, to any Magistrate subordinate to him.
(2) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case to transfer it fcr inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly."
The learned counsel contends that as provided under section 200, Cr. P. C., the Sub-Divisional Magistrate had to record the statement of the complainant at once and this was the first step which could show that he had taken cognizance of the case.
The learned counsel, however, did not press this ground later in view of a Division Bench Authority of this Court reported as The State v. Ali Muhammad and others (1) wherein an order similar to the one passed by the Sub-Divisional Magistrate in this case was held to be valid. Qadeeruddin Ahmed, J. (as his Lordship then was) observed as follows :- "The meaning of the expression 'take congizance' which occurs in section 192, Cr. P. C. Although not defined, can be accurately ascertained with the help of the provisions contained fn the allied sections of the Code. Under section 200, Cr. P. C. a Magistrate taking cognizance of an offence on a complaint is bound to examine the complainant 'at once';
(1) PLD 1958 Kaf. 538 Under subsection (1) of section 204, Cr. P. C. Which is the first section in Chapter XVII dealing with the 'commencement of proceedings before Magistrates', 'a Magistrate taking cognizance of an offence is to issue process if in his opinion there is sufficient ground for proceeding with the case.
This means that the first step to be taken by a Magistrate 'taking cognizance of an offence' on a complaint is to examine the complainant and then to issue process for commencing pro-- ceedings. Issuing process is therefore not a part of taking cogni--zance, but one may contend that examining the complainant is a part of the process of taking cognizance, yet for purposes of section 192, at least, it is not a part of that process, and this has been made clear by clause (a) of the proviso to section 200 which lays down that 'when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complaint before transferring the case under section 192'. There is no doubt therefore that neither the examination of the complainant nor the issue of process are ingredients of taking cognizance of an offence for purposes of section 192.
"The act of taking cognizance, for this provision at least assumes a subjective character and need not involve any outward manifestation except physical concomitants of the application of mind."
13. The only other ground urged by the learned counsel in support of this revision petition was that the proceedings before the learned Civil Judge & F. C. M., Ghotki were null and void as according to the learned counsel the Magistrate was not empowered to take cognizance under section 190(1)
(a), Cr. P. C. This contention is misconceived as by Notification No. 1. B. (b) 2038, dated i0-3-1966, published in the Gazette of West Pakistan, Part 111, dated May 20, 1966 at page 1337, the District Magistrate Sukkur has authorized Mr. Mughal the then Civil Judge & F. C. M., Ghotki to take cognizance of such cases. Needl-.Ss to add that the District Magistrate is empowered to do so by virtue of the provisions of section 190(2), Cr. P. C. Moreover, such an objection if any could have been easily and more appropriately taken by the petitioner before the concerned Magistrate himself.
14. No other contention has been urged before me. I would, accordingly, dismiss this Application.
The reference made by the learned Additional Sessions Judge, Sukkur also stands rejected.