This is a petition under section 561-A, Cr. P. C. By Fida Hussain and others, petitioners Nos. 1 to 5, for quashment of criminal proceedings titled "Mir Abdul Majid v. Fida Hussain and others" under section 70 of the Stamp Act pending in the Court of Ch. Muhammad Ashraf, Magistrate 1st Class, Gujranwala.
2. The prosecution case in brief is that on 11-2-1986 Mir Abdul Majid, respondent No. 1, filed an application before the Sub-Registrar, l for prosecution of Ftda Hussain and others, petitioners Nos. 1 to 5, under section 64 of the Stamp Act. The allegations in the application) were that Fida Hussain and Abdul Sattar, petitioners Nos. 1 and 2 had earlier, by an agreement for sale dated 16-5-1985, agreed to sell shop No. BIX-9-S-35 situate in Sabzi Mandi, Gujranwala, to Muhammad Hussain, petitioner No. 3, for a sum of Rs. 2,37,000 but thereafter, on 12-1-1986 they had sold the same to Ghulam Muhammad, Petitioner No. 4, for a reduced price of Rs. 1,20,000 and that as in the later sale they had defrauded the Government of duty, they should be prosecuted. A copy of the said application of the respondents stands annexed with the petitioners' petition and is marked 'B'. The Sub-Registrar, Urban/ Registration, Gujranwala, marked the said application to the Head Registration Clerk, who submitted his detailed report to the Collector, through the Sub-Registrar (Urban) on 25-2-1986, as per Annexure `C' filed with the petition. In the said report the Head Registration Clerk mentioned that the parties had evaded stamp duty and thus contravened the provisions of section 27 of the Stamp Act, which was an offence under section 64 thereof, and that the case was- being submitted to the learned Collector for the grant of permission for prosecution under section 70 of the Stamp Act. The learned Collector was also requested to name the Court of the Magistrate for trial of the case. The said report was submitted through the Sub-Registrar (Urban), Gujranwala, who marked it to the Collector on 26-2-1986. On 4-3-1986, the Collector, Gujranwala, approved para. 5 of the report, which related to the prosecution of the petitioners, and directed that the Ilaqa Magistrate should try the case. Consequent to this order, on 6-3-1986 the Sub-Registrar (Urban), Gujranwala, passed an order stating that the learned Collector had approved prosecution of Fida Hussain and Abdul Sattar, petitioners Nos. 1 and 2, for evading B stamp duty, that the case was to be tried by the Ilaqa Magistrate and that the same was accordingly being submitted to Ch. Muhammad Ashraf, Magistrate 1st Class; he being the Ilaqa Magistrate, for trial. Instead of drawing up the complaint himself and sending it to the Ilaqa Magistrate for trial of the case, the Sub-Registrar (Urban) transmitted the application of the respondent, with connected papers, to the Ilaqa Magistrate for trial of Fida Hussain and Abdul Sattar, petitioners Nos. 1 and 2.
3. The papers having come up before the said Magistrate on 12-3-1986, he issued summons for the attendance of the respondent for 25-3-1986. The same order was repeated on 17-41986 and 6-5- 1986, on which last date the respondent not having appeared, the Ilaqa Magistrate dismissed the complaint for non-prosecution, presumably under section 247, Cr. P. C. On 11-6-1986, the respondent applied for restoration of the private complaint. The file was put up before the Ilaqa Magistrate, the same day, when the Ilaqa Magistrate passed the order summoning Fida Hussain and others, petitioners Nos. 1 to 5, to face their trial under section 70 of the Stamp Act. Being aggrieved by the said order, petitioners Nos. 1 to 5 moved the High Court for quashment of the criminal proceedings against them, which petition is now before me for disposal.
4. 1 have heard the arguments of the learned counsel for the petitioners, the respondent and the State and have perused the record. What stands out prominently in the case is that after Mir Abdul Majid, respondent No. 1, filed the complainant before the Sub-Registrar (Registration), Gujranwala, against Fida Hussain and others, petitioners Nos. 1 to 5, alleging an offence to have been committed by them with regard to evasion of stamp duty and calling for their prosecution, no notice was given to any of the petitioners to explain the allegations levelled against them and) to show cause why they should not be prosecuted. On principles of natural justice, such a show- cause notice was necessary, to enable the, petitioners to explain the allegations levelled against them. It is the case of the petitioners that whereas in the earlier agreement for sale dated 16-5- 1985 petitioners Nos. 1 and 2 had agreed, to sell the whole Shop No. BIX-9-S-35 situated in Sabzi Mandi, Gujranwala, to Muhammad Hussain, petitioner No. 3, for Rs. 2,37,000 without reserving any right to raise any construction over the said shop, later when the earlier agreement did not fructify and they sold the said shop to Ghulam Muhammad, petitioner No. 4 for Rs. 1,20,000 they reserved to themselves the right to raise a construction over the said shop for their benefit. In these circumstances, it is submitted on behalf of petitioners Nos. 1 and 2 that had they been issued a show-cause notice to explain the circumstances against them, they would have pointed out the difference between the two deeds to show that whereas in the earlier deed they had agreed to sell the disputed shop "lock stock add barrel", with right to the vendee to raise their own construction over it, in the later sale deep they had only sold the shop on the ground floor, reserving to themselves the right to raise construction over the same, which they could retain for themselves.
The submissions raised on behalf of the petitioners are not without substance. However, as already held above, the petitioners were entitled to a show-cause notice before the Collector, Gujranwala, passed any order under section 70 of the Stamp Act and I would hold accordingly.
5. The circumstances in which the complaint of respondent No. 1 was directly sent to the Ilaqa Magistrate for disposal under section 70 of the Stamp Act, leaves much to be desired. After the Collector, Gujranwala, ordered the prosecution of the petitioners, the Collector should have drawn up the complaint against petitioners Nos. 1 and 2 and sent it to the Ilaqa Magistrate, or the Sub- Regitrar (Urban) should have sent the file to the police for the submission of a challan to the said Magistrate for the prosecution of the said petitioners under section 64 of the Stamp Act. The order of the Collector gave no authority to the Sub-Registrar (Urban) to forward the private complaint of respondent No. 1 for disposal by the Magistrate. It is contended on behalf of the petitioners that the language of section 70 of tire Stamp Act is somewhat loose and enables a private person to prosecute a person under the Stamp Act on the basis of his own private complaint, subject to permission being obtained from the Collector to that effect, but in essence all prosecutions under fiscal laws are for the benefit of the State to enforce public policy and no for the advantage of private persons. I would hold that all prosecutions under the Stamp Act are intended to be by and at the instance of the State and not of a private party. The submission of the private complaint of respondent No. I to the Ilaqa Magistrate for disposal as his private complaint, was in violation of section 70 of the Stamp Act. The prosecution, therefore, against petitioners Nos. 1 to 5 was ab initio void.
6. The circumstances in which the Ilaqa Magistrate, after dismissing the private complaint under section 247, Cr. P. C. On 6-5-1986, himself resurrected the same ex parte on I 1-6-1986, leaves much to be desired. , The remedy of the respondent was by way of an appeal under section 417, of the Code of Criminal Procedure and not on the basis of a miscellaneous application.
7. The upshot of the above discussion -is that the proceedings right from start to finish were illegal and void. The criminal proceedings,, therefore, deserve to be quashed.
8. For the foregoing reasons, this petition is accepted and the criminal proceedings arising out of the private complaint filed by Mir Abdul hlajid, respondent No. 1, against Fida Hussain and others, petitioners Nos. 1 to 5, which is now pending in the Court of the Ilaqa Magistrate at Gujranwala, are here by quashed. Nothing herein contained shall prevent the Collector, Gujranwala, from filing fresh proceedings against the petitioners or such one or more of them as he considers necessary, after he has first issued show-cause notice to them to explain the circumstances appearing against them and has also heard them, if they so desire to be heard.