' On 1-1-1989, S.H.O. Sujawal Police Station filed a report against applicant Inayat in the Court of S.D.M. Sujawal/Tribunal, for taking action against him under section 14 of the Sind Crimes Control Act, 1975. The Tribunal took cognizance against the applicant and issued a N.B.W. Against him. The applicant, who was arrested in execution of warrant, was produced before the Tribunal on 4-1-1989, when an order under subsection (2) of section 8 of the Sind Crimes Control Act. 1975, calling upon him to show cause as to why he should not be directed to execute a bond of good behaviour in the sum of Rs,5,000 (Rupees five thousand), with one surety for a period of 12 months, was passed. No order under subsection (3) of section 8 of the Sind Crimes Control Act, 1975, was, however passed and instead the applicant was remanded to custody for want of surety. The applicant has questioned the legality of proceedings drawn against him by the Tribunal before this Court through an application filed under section 561-A, Cr.P.C. With a prayer that the same may be quashed.
2. The object of proceedings under section 14 of the Sind Crimes Control Act, 1975, is preventive, with a view to protect the society from dangerous criminals against the perpetration of crimes by placing them under substantial restraint. The policy and purpose of a given measure may be deduced from the preamble thereof. The preamble of the Sind Crimes Control Act, 1975, shows that it was enacted to provide effective machinery of law to prevent the commission and repetition of crimes and to consolidate the law relating to antisocial elements and disorderly persons in the Province of Sind.
3. Section 4 of the Sind Crimes Control Act, 1975, deals with the cognizance of cases by the Tribunal, when.--
(a) the person complained 'against resides or the act complained against is alleged to have been committed, within its jurisdiction; and
(b) a Police Officer not below the rank of Sub-Inspector, makes a report in writing in this behalf.
4. Admittedly the applicant resides in Dch Bhutti, Taluka Sujawal. The acts alleged to have been committed by the applicant were also committed within the jurisdiction of the Tribunal. The report against the applicant was again made by Amanullah, S.I.P., working as S.H.O. Sujawal Police Station.
Taking cognizance of in its broad and literal senses means 'taking notice of'. When once the Tribunal takes cognizance on a report made under clause (b) of section 4, the next step to follow is the one provided in section 5 of the Sind Crimes Control Act, 1975, in the following words:- "On receipt of the report, the Tribunal shall issue a summons requiring the person complained against to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to produce him before it."
' Section 5 is, however, qualified by a proviso to meet an exigency where the issuance of warrant of arrest becomes necessary. It lays down:- "Provided that whenever it appears to such Tribunal, upon the report of a Police Officer or upon other information (the substance of which report or information shall be recorded by the Tribunal), that there is reason to apprehend the commission of the act complained against and that such commission of the act cannot be prevented otherwise than by the immediate arrest of such person, the Tribunal may, at any time, issue a warrant for his arrest."
5. As a general rule a proviso is added to a section to qualify or create an exception to what is in the section. In State of Rajasthan v. Lecla Jain, reported in 1965 I SCR 276, the question arose whether the proviso in the Act under consideration there was a limiting provision to the main provision or was a substantive provision in itself. The Supreme Court of India observed that "So far as general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out some thing which, but for the proviso would have been within the operative part." But it was further observed that the proviso in that particular case was really not a proviso in the accepted sense but an independent legislative provision by which to a remedy which was prohibited by the main part of the section. An alternative was provided.
6. A bare perusal of the proviso to section 5 of the Sind Crimes Control Act, 1975, would show that issuance of warrant is an independent legislative provision made dependent upon the following exigencies:- (i) satisfaction of the Tribunal, upon the report of a Police Officer or upon information;
(ii) the substance of such report or information shall be recorded by the Tribunal.
(iii) that there is reason to apprehend the commission of the act complained against; and
(iv) that such commission of the act cannot be prevented otherwise than by the immediate arrest of such person.
7. It is unnecessary to state how important and how valuable for the liberty of a subject the provisions with regard to arrest are. The satisfaction of a Tribunal for the issuance of warrant is not an empty formality. The issuance of warrant by the Tribunal in disregard to the above requirements was thus Went
8. Section 6 of the Sind Crimes Control Act, 1975, then c ,mes into play. It provides:- "Every summons or warrant issued under section 5 shall be accompanied by a copy of the report and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under the same: Provided that the report shall briefly state.-
(i) the acts with which the person complained against is charged;
(ii) the details of time and place of such acts;
(iii) general repute of person complained or such other allegations made against him.
9. Like proviso to section 5, the proviso to section 6 of the Sind Crimes Control Act, 1975, was not really a proviso in the accepted sense, but an independent legislative provision laying down the contents of the report to be served upon the person proceeded against. On the face of it the report filed by S.H.O. Sujawal Police Station, against the applicant does not satisfy the requirements of the proviso to section 6 of the Sind Crimes Control Act, 1975. The S.H.O. Sujawal Police Station has tried to bring the case of the applicant within the mischief of clauses (xix), (xa), (xxx) and ()mix) of section 14 of the Sind Crimes Control Act, 1975, but only vague allegations have been made with no details of time and place of such acts, as required under section 6. The report which is again the basis of proceedings under section 8 of the Sind Crimes Control Act, 1975, is intended to give sufficient notice to the person against whom the proceedings are drawn, of the accusation made against him. Therefore, the report must set forth the substance of accusation alleged against the person proceeded with. If this is not done, the person proceeded against, cannot know till he comes to Tribunal precisely what he is charged with, and as no charge is drawn up in such proceedings, he may not know till the final order is passed, what his alleged fault is.
10. Mr. Nooruddin Sarki, learned counsel for the applicant has invited my attentioi. To the cases reported as Asadullah v. S.D.M./Tribunal Ratodero 1988 P Cr. L J 49, Allah Rakhio v. The State 1988 P Cr. L J 51, Ali Bux v. S.D.M. Naushero Feroz and another 1988 P Cr. L J 619, and Allah Bux v. The State 1988 P Cr. L J 2365, which in fact support the view taken by me. Faced with this situation Mr. Masood Shahar-e-Yar, learned counsel for State has also supported the application for abashment of proceedings.
11. In the above circumstances, the application made under section 561-A, Cr.P.C. Is accepted and the proceedings drawn against the applicant under section 14 of the Sind Crimes Control Act, 1975, are quashed.
12. It is needless to observe that the above order is passed purely on technical grounds. There is, therefore, no bar for drawing fresh proceedings against the applicant keeping in view the above legal requirements, if need be.