MUHAMMAD ISHAQ KHANJ:-Sher Adat Khan and Sher Ahmed Khan, have applied for the quashment of the order dated 22-9-1987 of the learned Sessions Judge, Bannu vide which accepting the revision petition of respondents 1 and 2 herein, he remanded the case to the Court of the Civil Judge, Bannu for disposal of the complaint filed by the respondents under Sections 419/420/468/471/34/109 P.P.C., in accordance with law which had earlier been dismissed as premature by the order dated 4-1-1987, of the Civil Judge, Bannu.
2. Facts leading to the instant litigation are that Sher Ahmad Khan petitioner allegedly purchased an area of 61 kanals and 15 marlas of land in village Mathi Khel, Bannu District from Respondents 1 and 2 vide deed dated 22.8.1983. On the basis of said deed the petitioner Sher Ahmad instituted a civil suit which was decreed in his favour after proceeding against exparte against Sahib Din and Mir-Shaza Din respondents by the judgment and decree dated 14.7.1986, of the Civil Judge, Bannu.
On 20-9-1986. Sahib Din and Mir Shaza Din respondents filed an application under Section 12(2)
C.P.C, for setting aside the aforesaid exparte decree on the grounds that the exparte decree was the resuIt of fraud played upon the Court and that exparte proceedings against them were the resuIt of collusion between the plaintiff Sher Ahmad and the process serving agency. While the proceedings under Section 12(2) C.P.C, were yet pending adjudication, Sahib Din and Mir Shaza Din respondents also filed a complaint under Section 419/420/468/471/34/109 P.P.C., against Sher Ahmad petitioners in the said Court of the Civil Judge, Bannu. The learned Civil Judge by his order dated 4-1-1987, while holding that he had the jurisdiction to adjudicate upon the complaint, in his view since the plaint on the basis of which the instant complaint had been filed was still pending, the complaint was thus premature and was according dismissed. Aggrieved by the said order of the learned Civil Judge Sahib Din and Mir Shaza Din approached the Court of the learned Sessions Judge, Bannu in criminal revision petition for setting aside the aforesaid order of the learned lower Court and to adjudicate upon the complaint in accordance with law. The learned Sessions, Judge Bannu, by his order dated 22-9-1987, accepted the revision petition, and setting aside the impugned order of the learned Civil Judge, remanded the case to the saidCourt for disposal of the same in accordance with law. Aggrieved by the said order of the learned Sessions Judge Sher Adat and Shcr Ahmad have come to this Court for the redress of their grievance in exercise of its powers under Section 56 1-A Cr:P.C.
3. Argument of S.Zafar Abbas Zaidi, learned counsel for the petitioners and Mr. Sanaullah Khan, Advocate on behalf of the respondents have been heard and record of the case has been thoroughly examined.
4. Firstly in this case it is to be determined whether the Civil Judge could dismiss the complaint in the manner he has acted in the instant matter. Complaint under Section 4(1) of the Code of Criminal Procedure means the allegation made orally or in writing to a Magistrate, with a view he his taking action under the said Code, that some person whether known or un-known, has committed an offence but it does not include the report of the Police Officer. In the instant case Mir Sahib Din and Mir-Shaza Din made a complaint to the Court in which allegedly by playing fraud upon the Court fraudulent decree had been obtained by Sher Ahmad Khan and Sher Adat Khan and accordingly the trial Court was requested to proceed against the latters under Section 419/420/468/471/34/109 P.P.C. Under Section 203 Cr:P.C. The Court before whom complaint is made or to whom it has been transferred or sent, may dismiss the complaint if after considering the statement on oath (if any) of the complainant and the resuIt of the ivestigation or enquiry (if any) under Section 203 Cr:P.C. There is in his judgment no sufficient grounds for proceedings. It is well settled that the dismissal of the complaint without any enquiry report and without giving the complainant reasonable opportunity to prove the allegation is not proper in law. It is also an established view of the superior Courts that if from the perusal of the contents of the complaint there are reasonable circumstance leading to the constitution of certain offences there would be a prima facie case for proceeding. In such a case it becomes incumbent upon the court to proceed against the persons-accused in accordance with law. Even otherwise when a complaint is made to the Court Having jurisdiction it can dismiss it only under Section 203. CnP.C, which contemplates the consideration of the statement on oath of the complaint and the resuIt of the investigation or enquiry if any.
No doubt the application under Section 12(2) C.P.C, was yet pending adjudication and the allegation of obtaining the decree allegedly by playing fraud upon the Court was and is yet to be determined and proceeding with the complaint prior to the final verdict with regard to the alleged fraud played upon the Court, technically the Civil Judge, was correct in observing the process of the complaint as pre-mature, but where the legislature has framed a specific procedure to be adopted in a particular manner any deviation from that procedure renders the whole exercise as without jurisdiction, because it is through the Act of legislature which vests the Court with certain powers and the procedure for the due exercise of such powers. Thus where the Civil Judge did have the powers to dismiss the complaint, he could do so only after fulfilling the pre-requisite and the basis requirements of Section 203 Cr:P.C. Which invested him with the powers to dismiss the complaint and not that he dismissed the complaint because he had the powers to dismiss it, having least consideration for the procedure to be adopted for such dismissal. The order of the Civil Judge dismissing the complaint without observing the procedure laid down in Section 203 Cr.P.C, therefore, cannot be justified in law. The order of the learned Sessions Judge observing that no provision of law is available in the Criminal Procedure Code empowering the trial Court to dismiss or stay the complaint also cannot be maintained because under Section 202 Cr.P.C. Any Court on receipt of a complaint of an offence of which it is authorised to take cognizance, may if thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendence of the persons complained against and either enquire into the case itself or direct an enquiry or investigation to be made by any justice of peace, or by a police officer, or by such other person as it thinks fit, for the purposes of ascertaining the truth or false-hood of the complaint. The Civil Judge was already seized witw the process of ascertaining the truth or false-hood of the allegation contained in the complaint as a Civil Court under Section 12(2) C.P.C, and thus he did have the powers to postpone the process of the complaint pending adjudication of the application under Section 12(2) C.P.C. As I have observed earlier legally the Civil Judge ought not have dismissed the complaint without first observing the procedure contained in Section 203 Cr:P.C. At the same time it cannot be agitated that the order of dismissal of the complaint as premature in any manner prevented the complainants of asking the Court to proceed against the accused at any subsequent stage, once they succeed in Prima facie establishing the securing of the decree by playing fraud upon the Court of Civil Judge because it is a well settled prinsiple that dismissal of a complaint under Section 203 Cr:P.C. When the accused are not at all in picture is a dismissal in limine and nowhere it amounts to mean that the allegation against the accuredore false and for that the accused are either discharged or acquitted. In Muslim Miah Complainant Versus Munsar Ali Haii and 6 others accused reported as (1969 P.Cr:L.J. 849) it was observed.
"A dismissal of a complaint under Section 203, Cr:P.C. Is a a dismissal in limine. The accused is not at all in the picture at this stage. Such a dismissal does not mean that the allegations against the accused are false and for that the accused are entitled to a discharge or acquittal. The provisions of Section 403 Cr:P.C. Are not attracted to such a case. No process having been issued against the accused and no trial having commenced on the complaint, section 403 Cr:P.C. Cannot apply nor debar the Court from taking cognizance of the case afresh. To bar a subsequent trial under Section 403, CrtP.C. There must be a previous proceeding and discharge or a previous trial and acquittal of the accused. If Section 403 Cr:P.C. Does not apply, there is no reason why the fresh complaint will not be competent after the dismissal of the first one. Thus in the given facts and circumstances of the case a second complaint was entertainable on the self-same facts.."
In this Case as well neither any proceeds had been issued to the accused nor were the accused tried for the charge levelled aginsl them. The learned Civil Judge, it so appears to avoid error of opinion dismissed the complaint as premature pending final adjudication on the application under Section 12(2) C.P.C. The dismissal of the complaint though against the prescribed procedure, in no manner creates a bar for the complainants to file afresh complaint against the persons charged for proceeding against them after they established the fraud having been played upon the Court and the provisions of Section 203 Cr:P.C. Cannot be attracted in such like matters so as to creat apprehension in the mind of the complainant to challenge the order of dismissal of the complaint as premature in a revision before the Sessions Judge. The order of Civil Judge dismissing the complaint though defective in the eyes of law has nowhere resuIted in some undeserve hardship or gross miscarriage of justice. In khadim Hussain Khan petitioner versus the State respondent reported as (P.L.D. 1982 S.C. (AJ & K) it was held that.
"It is settled that revisional jurisdiction could be exercised by the High Court only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely bccuase the lower Courts have taken a wrong view of the law or misappreciatcd the evidence on record."
As I have earlier observed though the learned Civil Judge by misinterpretation of the law committed error in dismissing the complaint without performing the requirement of Section 203 Cr: P.C. Still no mis-carriage of justice has occurred because the complainants have the ample discretion to file a fresh complaint on the same facts and under the same Section of law if they are in a position to prima facie make out a case against the accused- petitioners.
5. From what has been stated above one thing becomes clear that when a complaint is filed in a Court having jurisdiction to proceed, before it can be dismissed the procedure provided in Section- 203 Cr: P.C. Is to be strictly observed and in no case the complaint can be dismissed without recording the statement of the complainant. Even otherwise in view of the situation in the instant matter it would have been advisable for the Civil Judge to have disponsed with the proceeding of the complaint pending final adjudication of the application under Section 12(2) C.P.C, and if the complainants could establish the securing of the decree by fraudulent means cognizance of the complaint should have been taken and action against the accused initiated
6. The second question, the most crucial and important one, that ivolves consideration is whether the complaint could be filed in the Court of the Civil Judge as a Magistrate First Class whose territorial jurisdiction has not been notified pursuant to the requirements of Section 12(1) Cr:P.C.
Under Section 12(2) Cr:P.C. The jurisdiction and powers of a First Class Magistrate extends throughout the District unless the local area within which such a Magistrate may exercise all or any powers with which he is invested are duly notified by the Provincial Government or the District Magistrate under Section 12(1) Cr:P.C. The Civil Judge of the First class by virtue of his office stands ivnvested with First Class Magistrate powers and since the local area within which he could exercise such powers have not been duly notified, in the ordinary course entertainment of the complaint can by no stretch of imagination be called as without jurisdiction. At the same time it cannot be disputed that the cause of action arose to the complaints as a resuIt of the alleged fraudulent decree obtained from the Court of the said Civil Judge. It is also not a matter of controversy that a proper procedure to get the said alleged fraudulent decree set aside has been adopted by filing an application under Section 12(2) C.P.C. It also stands established that the guiIt or innocence of the accused-petitioners would much depend upon the conclusions of the Court while adjudicating upon the application under Section 12(2) C.P.C whether the decree obtained was the resuIt of fraud played upon the Court or otherwise. In much a situtation it would not be advisable for the said Court to, on one hand ascertain and conclude the role played by the accused-petitioners in getting a decree by playing fraud upon the court and on the other hand by entertaining the complaint under Section 201 Cr:P.C. To try the accused-petitioner with the offence as alleged. It is well settlled principle of law that one cannot be the prosecutor and at the same time a Judge in the same cause. The only Section of law which empowers a Court to be the presecutor and the Judge in the same cause in Section 476 Cr:P.C. Which provides that when as offence referred to in Section 195 Sub- Clause (1), Clause (b) or Clause (e) has been committed in, or in relation to, a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with procedure prescribed for summary trial in Chapter-XXII. The Section of law with which the Court can proceed summarily under Section 476 Cr:P.C. As enumerated in Section 195(1) (b) and (c) Cr: P.C. Are Sections 193,194,195,196 199, 200, 205, 206, 207, 208, 209, 210, 211, 228, 463, 471, 475 and 476 P.P.C. Ths instant complaint is filed under Section 419/420/468/471 P.P.C. Thus except for section 471 P.P.C, the accused-petitioners cannot be tried for the offences under Sections 419/420/468 P.P.C, under the procedure provided under Section 476 Cr:P.C. Because under the latter Section of law a Court is entitled to try only offences under Clauses (b) and (c) of Section 195 Cr:P.C. And not those failing under Clause (a) of that Section. Moreover, under Section 496 Cr:P.C. It is the Court which in a way is the complainant and aIthough in the ordinary course the complainant himself cannot become the Judge as well to decide the matter but Section 476 Cr:P.C. Empowers the very Court to try the offence in a summary manner. If, however, the Court is of the view that offence other than those mentioned in Clauses (b) and (c) of Section 195 Cr:P.C. Have been committed he is at liberty to forward the case to another Court having jurisdiction to try the same and in that matter it is upen to the said Court to include other offences which form part of the same transaction. In Muhammad Ehsan petitioner versus the State respondent reported as (P.L.D. 1968 Lahore 451) it was observed that.
"A complaint under section 476 of the Criminal Procedure Code, 1898 is not rendered invalid on the ground that an offence alleged in the complaint against the accused was not one of the offences mentioned in section 195, CrP.C. Section 476 of the Code is merely an enabling section and does not debar a Court from including in its complaint other sections of the Penal Code not mentioned in section 195 Cr:P.C. The provisions contained in Section 195 CrP.C. Are only by way of an exception to the general provision contained in section 190, CrP.C. And as such the machinery of law could be set in motion by anybody including the Civil Judge for the commission of any offence including all those not corercd by covcrd by claurc (e) of sub-section (1) section 195r, Cr:P.C."
No doubt a Court is competent to proceed with the offences provided in clauses (b) and (c) of subsection (1) to Section 195, CrP.C. Relating to its Court but at the same time it also cannot be disputed that such a Court can proceed against the accused with the offences mentioned in teh said clauses and cannot travel beyond the same. Besides action in such a situation is taken by the Court itself suo moto and not upon complaint. The Court is duty bound to consider why the 7 person who has committed forgery or perjury should not be prosecuted and if there appearns reasonable grounds why such person should not be prosecuted and such a Court is expected and is supposed to take prompt and adequate action so as to avoid an impression that any one can divert or abuse the process of law by falsehood or fabrication and still run no risk of coming to harm. If, however, the Court slacks itself in prosecuting an action as provided in Section 476 Cr:P.C. a private person or the person affected can also made an application to such Court to initiate proceedings. One thing is, however, clear that under Section 476 CrP.C. The Court itself is the complainant and at the same time empowered to try the case and punish the culprits in a summary manner. It is also clear that it is the Court and the Court alone in which forgery or perjury is committed to proceed against culprits under Section 476 Cr:P.C. Under Section 476-A CrP.C. If the Court considers the matter to be adjudicated upon by some other Court of competent jurisdiction if may refer the case to that Court. In that situation it may also add the sections of law which in its view the culprits have committed and which arc not covered by clauses (b) and (c) of subsection
(1) of Section 195 CrP.C.
7. Keeping in view all these factors it stands established that complaint under Section 201 CrP.C.
Cannot be made to the same court in which the alleged offences have been committed because as observed earlier one is not supposed to be the prosecutor and at the same time the Judge in the same cause.
However, the Court may take cognizance of the matter if it finds that perjury or forgery has been committed in his Court either suo moto or on the application of a private person or an aggrieved person under Section 476 CrP.C. But in that case it would not be treated as a complaint because in such a situation the Court itself is the complainant. Since in this case complaint was filed in the Court from which a fraudulent decree had been obtained by playing fraud upon the Court, it would be presumed that the Court was to proceed under the powers vested in it under Section 476 Cr:P.C.
And thus the complaint filed in that Court would be deemed to be an application and not stricto sense a complaint. In that respect if the Court dismissed that application as premature I do'nt think he acted in contravention of the provisions of Section 203 Cr:P.C. Because the provisions of Section 203 Cr:P.C. Can be attrated only in a complaint under Section 201 Cr:P.C. And not on application under Section 476 Cr:P.C. Since, however, the Civil Judge used the words complaint, therefore, his order cannot be maintain because a complaint cannot be dismissed without fulfilling the requirements of Section 203 Cr:P.C.
8. In the light of what has been elaborated above I am firm in my view that the Civil Judge while dismissing the application as premature acted quite whithin his competency with the only exception that the order of the Civil Judge dismissing the complaint as premature should be read as dismissing the application as premature. At a subsequent stage, however, if the Court comes to the exclusions that the alleged decree has been obtained as a resuIt of fraud played upon the Court, the Court must proceed against the culprits suo moto under Section 476 Cr:P.C. Or may send a complaint to the Court of competent jursidiction under Section 476-A Cr:P.C. The complainant are also at liberty to file a complaint in the Court of competent jurisdiction once it is prima facie established that the decree has been obtained through fraud. This appliction is disposed off accordingly.