' Muhammad Aslam, Muhammad Arif and Muhammad Iftikhar, have filed a petition under section 561-A, Cr. P. C. For the quashmont of proceedings in a private complaint under section 302/34, P. P.
C. Titled "Mst. Na lso MI v. Muhammad Aslam and 2 others", pending in the Court of Mian Abdul Rehman, Additional Sessions Judge, Lahore. This petition was admitted vide order dated 13-10-1976, to consider whether the Court of Session could entertain a private complaint falling exclusively within its jurisdiction when there was a complete bar to do so under section 193, Cr. P. C. The Advocate-General was directed to nominate a Law Officer to assist this Court in settling this legal issue.
2. The brief facts of the case are as under:- ' Mst . Natho Bibi respondent filed a private complaint through her counsel Raja Mahmood Akhtar, Advocate before the Court of Session directly on 16-8-1976. The learned Sessions Judge in routine, forwarded this case to the Additional Sessions Judge for disposal. The learned Additional Sessions Judge took cognizance of this complaint under section 200, Cr. P. C. And proceeded under section 202, Cr. P. C. By recording the preliminary evidence of the P. Ws. After the preliminary evidence was completed, he found a prima facie case against. Muhammad Aslam and Muhammad Arif petitioners and summoned them through non-bailable warrants while issuing ordinary process in the name of Muhammad Iftikhar petitioner who was on bail granted to him by the learned Additional Sessions Judge and an application for cancellation of the same was pending before the High Court.
3. Learned counsel appearing on behalf of the petitioner has submitted That it was mandatory as provided under section 200, Cr. P. C. That complaint of such nature was to be instituted initially in the Court of a Magistrate competent to take cognizance under section 190 (1) (b), Cr. P. C. Only. The Court of Session could not entertain such complaints as section 193, Cr. P. C. Completely bars taking cognizance of any offence by that Court sitting as a Court of original jurisdiction unless the complaint has been sent to it under section 190(3), Cr. P. C. According to the learned counsel, the procedure adopted by the learned Sessions Judge was violative of the said mandatory provisions, therefore, proceedings so taken in hand by it, were liable to be quashed.
4. Learned Assistant Advocate-General appearing on behalf of the State has submitted that clause
(3) of section 190, Cr. P. C. Has since been amended wherein it has been laid down that a Magistrate taking cognizance under section 190, Cr. P. C. Of an offence triable exclusively by a Court of Session, shall without recording any evidence send the case to the Court of Session for trial. It was contended that by this amendment, the Magistrate was not required to record evidence in a case which was triable exclusively by a Court of Session and thus by implication the Court of Session was competent to take cognizance of an offence directly which was exclusively triable by it without the media of the Magistrate. According to the Assistant Advocate-General, it would lead to absurdity if the interpretation of clause (3) of section 190, Cr. P. C. Is made in a manner to allow a Magistrate first to take cognizance of an offence of this nature and then to pass on the same to the Court of Session for disposal. It was argued that when ultimately a matter had to be decided by the Court of Session itself, there was hardly any sense left to allow the Magistrate to take cognizance of the same without powers to proceed under section 202, Cr. P. C.
5. I have given my anxious thought to the contentions raised from both sides and to resolve this legal issue, it will be useful to reproduce the relevant sections which permit the Courts of Law to take cognizance of such matters. Section 190(3), Cr. P. C. As it stood before its amendment, runs as follows:- "(3) The (Provincial Government) may empower any Magistrate of the first or second class to take cognizance under subsection (1), clause (c), of offences for which he may try or commit for trial."
' Amended clause reads as follows:- "A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall without recording any evidence, send the case to Court of Session for trial."
' While comparing these two clauses, it will be pertinent to note that the Magistrate will still retain power of taking cognizance in all oases whether triable by him or by the Court of Session with only difference that while before the amendment he could try cases which fell within his jurisdiction and would commit only those cases for trial which would fall in the exclusive jurisdiction of Sessions Court. It is also significant that word "Court" has been substituted in place of the word "Magistrate" under section 202, Criminal Procedure Code but the same has been retained both in the language of sections 190, 200 and 201, Cr. P. C. In this regard it will be also advantageous to reproduce the language of section 193, Cr. P. C. Which is as follows:- "(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3)."
' The only deviation made from the earlier section 193, Cr. P. C. Is that instead of "unless the accused has been committed to it by the Magistrate duly empowered in that behalf", the words substituted are, "unless the case has been sent to it under section 190, subsection (3)." The reading of these amended sections makes one thing absolutely clear that power of the Magistrate to take cognizance of an offence whether triable by him or triable exclusively by a Court of Session remains intact. Under the Law Reforms Ordinance, what has been laid down is that the Magistrate will no more enter into the exercise of recording preliminary evidence in cases which are exclusively triable by the Court of Session but will only send them as' provided under section 190(3).
Cr. P. C. For trial to the Sessions Court. There could be no two opinions about this legal position.
Therefore, the Court of Session will be barred to take cognizance of any offence directly as a Court of original jurisdiction unless the same had been sent to it under' the relevant section 190(3), Cr. P.
C.
6. As to the argument of the learned Assistant Advocate-General that this interpretation would lead to absurdity because it will serve no meaningful purpose as a case which is ultimately to be tried by the Court of Session should first be taken cognizance of by a Magistrate, it is sufficient to say that this enactment as it stands on the anvil of law, is not without wisdom. The Law Reforms Ordinance, has laid lot of emphasis on the form of the complaint to be made pertaining to the cases triable by the Court of Session and for that reason the power of the Magistrate to take initial cognizance of the same has been loft intact. This duty has been assigned to the Magistrate under the law to scrutinize the complaints and to find whether they conform to the pro forma laid down in this behalf and applying his mind to the facts of the case as stated in the complaint his discretion will always remain there to refuse to send the same to the Court of Session. This will positively reduce the burden which otherwise would have fallen on the Court of Session if this power would not have been given by law to the Magistrate. As to the meaning of word "cognizance", it will be useful to refer to Wazir v. State (I), a Full Bench ruling of this Court wherein it was held that mere filing of a challan before a Magistrate would not to be deemed that cognizance of the same has been taken mechanically by that Court before which it has been so represented and it would be reasonable to expect that something more would be done to show that the Magistrate intended to start the proceedings. To elaborate this point it was farther observed that:- "In the case of an incomplete challan, although the Magistrate could start the trial, if he keeps it waiting until another report should come or until whatever is wanting should be made up, he clearly does not take cognizance of the offence. IL therefore, the case is at that stage and a second report is received, showing that no offence is committed, the Magistrate can accept the report and cancel the case."
' In view of this authoritative pronouncement by a Full Bench of this Court and analysis of the relevant sections concerning the present issue, I have no hesitation to hold that discretion to refuse to send the complaint for trial before the Court of Session will he with the Magistrate and therefore, section 190(3) read with section 193, Cr. P. C. Would not permit the learned Sessions Judge to take cognizance of any offence as a Court of origin& jurisdiction unless the case has been sent to it by a Magistrate under section 190(3), Cr. P. C.
It will be useful at this stage to state as to what procedure should be adopted in a case of complaint according to the latest law. I am of the view that when a complaint is filed, the Magistrate will scrutinize the form and will also see whether or not the fact stated therein, do disclose the commission of an offence which is ultimately be triable by a Court of Session. If he is so satisfied that the facts do disclose the commission of such an offence, he will send the complaint to the Court of Session as provided under section 190(3), Cr. P. C. And the Sessions Court after receiving such complaint will proceed in the matter as laid down under section 202 of the Criminal Procedure Code.
7. The result of the above discussion is that I accept the application and quash the proceedings pending before Mien Abdul Rehman, Additional Sessions Judge, Lahore, in a case titled "Mst. Natho Bibi v. Muhammad Aslam and 2 others".
(1) PLD 1962 Lah. 538