ABDUL MAJEED MALLICK, CJ:- The petition is addressed against the order of learned Sessions Judge, Mirpur, passed on December 9, 1992, whereby the order of learned ADC(G) ADM, Mirpur of September 27, 1992, was maintained.
2. Sajawal, respondent moved an application under Section 133, Cr.P.C, in the trial Court. The dispute pertained to a passage in village Pind Khurd, Tehsil Mirpur. It was averred that Latif, Fazal and Dad, non-applicants forcibly obstructed the passage used by the public and started raising construction. The application was moved on April 13, 1992. It was addressed to the Court of ADC (G), Mirpur. After preliminary inquiry, the preliminary order was recorded and notice was issued to the non-applicants on the same day. The non-applicants appeared in the Court and filed their objections. An objection was raised with respect to the jurisdiction of the trial Court. It was explained that the Court of ADC (G) was incompetent to take cognizance of action under Section 133, Cr.P.C. On this, an application was moved on behalf of the applicant-respondents, on September 22 for correction of the name of the Court by adding the words of 'Court of ADM' instead of ADC(G). The application was accepted. The order of acceptance of application was passed on September 27, 1992. This order was assailed in revision before the learned Sessions Judge, without success. This is second petition.
3. It is contended by the learned Counsel for the petitioner that the application under Section 133, Cr.P.C, was moved in the Court of ADC (G) who, under law, was incompetent to entertain the same.
Thus the proceedings carried in the Court of ADC (G) in the shape of recording of preliminary order after preliminary inquiry, were invalid for want of jurisdiction. The answer to the objection is that the ADC (G) enjoys the powers of ADM Mirpur as well. The preliminary inquiry and preliminary order were passed in exercise of powers of the Magistrate and not ADC (G). It is further explained that process was issued to the non-applicants, including the petitioner, by the Court of ADM. Thus, in view of the learned Counsel for the opposite side, the proceedings were quite availed.
4. Under Section 133. I.P.C., a Magistrate, Divisional Magistrate or District Magistrate, is competent to take cognizance and to entertain an application or to act on the information furnished in that behalf. Thus a Court having powers of a Magistrate alone was competent to take an action under Section 133, Cr.P.C. There is no cavil with the aforesaid legal position as enunciated under Section 133, Cr.P.C.
5. It appears that the ADC (G) also enjoys the powers of Additional District Magistrate. The application, on the face of it, reflects to have been moved before the ADC (G). The process issued to the petitioner and his associates, however, reflect that the preliminary inquiry and preliminary order were passed by the Presiding Officer in his capacity as Additional District Magistrate. That suggests that the Presiding Officer was clear in his mind that he acted as Magistrate instead of ADC (G). It was in the light of this position that the application lor correction of the error relating to the name of the Court was granted.
6. It is invariably noticed that when a Presiding Officer acts in dual capaeity. In such cases, the parties are usually misled and address the Presiding officer under time or the other designation.
The fact that the Presiding Officer addressed under other designation was not material as the only material promotion for consideration of the Court was to ensure as to in which capacity the Presiding Officer entertained the matter and acted therein. In present case, as mentioned earlier, the record suggests that the Presiding Officer who enjoys dual capacity, acted as ADM instead of ADC (G). Thus, the Presiding Officer exercised his powers with a clear and definite mind in his capacity as Magistrate.
7. The matter under consideration is primarily of procedural error. Such errors are rectified in exercise of powers under Section 537, Cr. P.C. Thus the error allowed to be rectified by Addl: District Magistrate is not found material irregularity resulting in prejudice and injustice to the case of the petitioner. The petition merits no consideration. It is, therefore, dismissed. The parties are directed to appear before the trial Court on April 4,1993, the date already fixed in the case.