This is a petition filed under section 561-A, Cr. P. C. For quashing the proceeding of a criminal case under sections 419, 420, 468, 471 and 193 read with section 109, P. P. c:. Registered against the petitioner and others on the basis of a report lodged with the Police by the Civil Judge, Mandi Bahauddin and now pending before Assistant Commissioner/Magistrate Section 30, Mandi Bahauddin. The legal objection to the criminal proceeding is on the ground of non-compliance of section 195, Cr. P. C. In the course of the arguments, the ground of non-observance of section 476, Cr. P. C. (as it then stood) was also asserted. It was submitted that as the alleged offences were committed in relation to a proceeding in the civil Court, that Court was bound to base conducted an inquiry before instituting the case, that the criminal case could have been instituted only upon a proper complaint made to the Magistrate and that the Magistrate, in the absence of such complaint, could not take cognizance of the case.
2. It appears from the relevant F. I. R. That in the suit "Mazhar lqbal v. Mst. Rabid" a compromise petition was moved on 27-11-1973 for decree in terms of the plaintiff's claim, but in the course of recording of statements of the parties, 5t was disclosed that the petition bad, in fact, been made by Mir. Ghulam personating the defendant. ,She had been identified by Ghulam Muhammad lambardar. The civil Court, believing that they had committed the crime at the instigation of Mazhar Iqbal and his father Muhammad Roshan, lodged the respect with the Police tie same day asking for registration and investigation on the case against them. The police filed interim challan on 27-3-1974 against four persons including the petitioner. Evidence vas summoned in the case for 12-1-1976. Three days later, the present petition was filed.
3. Under section 476, Cr. P. C., as it stood at the relevant time, if it appears that an offence specified in clauses (b) and (c) of subsection (1) of section 195, Cr. P. C. Has been committed in or in relation to a proceeding in the civil Court, such Court may, after, such "preliminary inquiry" as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the Presiding Officer of the Court. The holding of a "preliminary inquiry" is, thus. a matter in the discretion of the civil Court. In Chaudhari Muhammad Izharul Haq v. The Queen-Emperor (I L R 20 Cal. 349), it was held : "It is therefore for the Court acting in the matter in the exercise of its discretion to determine whether or not to make such preliminary inquiry."
"We do not think that it is necessary for the validity of an order under section 476 that there should be in the original proceedings such contradictory evidence en the record, or that there should be a preliminary inquiry. Although it may sometimes yell be that a preliminary inquiry ought to be held, the adoption of a rigid rule to that effect would simply introduce into the criminal procedure in this country a new stage as a matter of imperative necessity---------------We do not think that such a practice is rendered imperative by the law, and it is not desirable that it should be necessarily, and in every case, introduced."
This view had been upheld throughout. In Mooso v. The State (PLD 1963 Kar. 719) it was observed that although the holding of the preliminary inquiry was optional, "there can be no escape from the requirement of the section as to the recording of the finding". The omission to hold a "preliminary inquiry" may, thus, not be material. But the difficulty is that there is nothing to show that the civil Court had been aware at all that the provisions of section 476, Cr. P. C. Had been attracted.
4. As regards the other objection based on non-compliance of section 195, Cr. P. C., it is to be noted that cognizance of the case against the petitioner and his cc-accused had been taken upon the challan received from the police under section 030 Cr. P. C. And not upon a complaint directly received from the civil Court. Of the offences cited, these falling under sections 193, 468 and 471, P.
P. C. Attract the provisions c f section 195, Cr. P. C. And in respect of the same a formal complaint, as prescribed under section 4 (1) (h), was necessary. There are numerous authorities to support the view that the Magistrate cannot take cognizance of a case in respect of such offences except upon a complaint made by the civil Court. See Kailas Kurmi v. Emperor (I L R 30 Cal. 285) B. N. Subba Rao v. State (AIR 1955 Mys.1) and Lajja Ram v. The State (A I R1952 H P 32).
5. The question arises whether the Magistrate cannot treat the report lodged by the civil Court as a complaint and take cognizance of the case upon the same. In Barkat and another v. Emperor (AIR 1943 All. 6) Allsop, J. Observed : "A complaint, as defined, does not include the report of a Police Officer. It is obvious that the term 'complaint' in section 195 (1) (a) cannot be used in that sense because otherwise, it would be possible for anyperson to obstruct a Police Officer in execution of his duty without rendering himself liable to punishment under section 186, P. P. C. It seems to me that the intention of section 195, Cr. P.
C. Is only that the Magistrate should not punish any person except at the instance of the Public Offset concerned or of his superior and I do not think that the term 'complaint' is used in the technical sense in which it is defined in section 4. At the time when the Magistrate convicted the accused in this case, he had before him the written report of the Amin made to the police and the evidence of the Amin who had been called as a witness. It is obvious that the Amin, intended that these people should be punished and that the prosecution was not really at the instance of some other person. Finally, the most that can be said is, that the complaint made to the Magistrate was irregular and the provisions of section 537, Cr. P. C., are that no finding or sentence shall be reversed on appeal or revision on account of any error, omission or irregularity in the complaint. No substantial injustice has been done."
This view, however, was not accepted by the Peshawar Court ride Crown v. Wazir Muhammad (PLD 1953 Pesh. 21). Wherein it was held : "I am also not prepared to agree with qtr. Justice Allsop in the above authority that a complaint to the Police Officer is enough to confer jurisdiction on a Magistrate to try a case under section 186,1 P.
P. C. In the definition of the complaint as given above, the complaint has got to be made to a Magistrate, it shall not satisfy the provision of law, if a complaint is made to the Police Officer, who in turn makes a report, or submits a complaint to the Court of the Magistrate concerned.
Lastly I also beg to differ from his Lordship that the failure to file a complaint in the Court of a Magistrate is are omission, irregularity or error in mode of trial can be cured by section 507, Cr. P. C.
It would be seen from the wording of section 195, Cr. P. C. That a Magistrate cannot take cognizance of a case under the sections mentioned therein until and unless there is a complaint before him made by certain Specified persons. If no complaint is made to the Magistrate, there is no jurisdiction confvrrc4 on a Magistrate to take cognizance of the offence under that particular section. It is, therefore, not a cage o; mere error, omission or irregularity in the complaint but is a case of a complete absence of jurisdiction of the Magistrate concerned to take cognizance of the offence under these particular sections. I am therefore, of the opinion that v coon 537, Cr. P. C., is not meant to cover a case of complete absence of jurisdiction.--- "This argument too cannot be accepted. Section 195, Cr. P. C., relates to the competency of the Court and bars its jurisdiction in cases where compliance with its provision is not made. The question of prejudice contemplated by section 537, Cr. P. C., is quite apart from the question of jurisdiction. Where there is complete lack of jurisdiction the whole proceedings are vitiated and the defect is not curable under section 537, Cr. P. C. See Zabtey Khan v. The State PLD 1972 Lah. 196). As the Court cannot assume jurisdiction to try a case where it is necessary that a complaint in writing signed by the Presiding Officer of the Court (in terms of sections 193 and 476, Cr. P. C. Is forwarded to the Magistrate concerned, all proceedings taken in pursuance of a complaint which is not submitted in the manner aforesaid are without jurisdiction and void."
6. The question is whether the trial Magistrate can proceed with the case as regards the other offences. I find that the whole case had arisen from the same circumstance and the facts constituting the various offences are not distinct. If the trial for the otter offences has to proceed on the basis of same facts, it will amount to circumventing the legal requirement.
7. Learned counsel for the State also supported the above view.
8. I. Therefore, quash the case against the petitioner and his co-accused. The civil Court, if at all, may proceed in the matter according to law by observing the provisions of sections 476 and 195.
Cr. P. C.