1. ABDUL HAKIM, J.-This is a reference under section 438 of the Code of Criminal Procedure made by Mr. M. A. Jabir, Sessions Judge, Dinajpur with a recommendation to quash the proceedings in Criminal Case No. 1079/C/65/281/66 pending in the Court of Mr. M. A. Hamid, Magistrate 1st Class, Dinajpur and to send the matter to the Conciliation Court for disposal as the case is exclusively triable by the Conciliation Court and the criminal Court has no jurisdiction to try the same.
2. The short facts of the case are that one Samad Ali filed a petition of complaint in the Court of the Sub-Divisional Officer, Dinajpur, alleging that the accused Ejamuddin struck him with the sharp- edge of a spade (kodal) when he obstructed him in his attempt to cut and take away a mango plant belonging to the complainant.
3. The Sub-Divisional Magistrate examined the complainant and referred the matter to the local police for enquiry and report. The police submitted a report supporting the allegations made in the petition of complaint. The accused was thereafter summoned under section 324 of the Pakistan Penal Code and the case was transferred to the Court of Mr. M. A. Hamid, Magistrate, 1st Class for disposal. The learned Magistrate examined 5 witnesses and framed a charge under section 323, P.
4. P. C. On 5-4-66 and fixed the case for cross-examination and further prosecution witnesses on 28- 4-66.
5. This framing of charge under section 323, P. P. C. Has given rise to the present reference. A case under section 323, P. P. C. Being exclusively triable by the Conciliation Court, according to the provisions of section 3 of the Conciliation Courts Ordinance, 1961, the question involved in the case is whether in the facts and circumstances stated above the criminal Court has jurisdiction to try the case.
6. An offence under section 324, P. P. C. Is not exclusively triable by the Conciliation Court. In the instant case, the petition of complaint specifically mentioned section 324, P. P. C. And claimed action thereunder. The allegations made in the petition of complaint and the police report prima facie made out a case under section 324, P. P. C. And hence the learned Magistrate on being satisfied thereon, issued summons against the accused under that section.
7. A criminal Court derives its jurisdiction from the original allegations made in the petition of complaint and not from the facts and materials subsequently brought on record during the trial.
8. The forum of trial is to be determined upon the basis of the allegations made at the initial stage and not upon ultimate findings reached at the trial.
9. In the present case, the original accusations constituting a prima facie offence within the meaning of section 324, P. P. C. The learned Magistrate was justified in taking cognizance of the offence and assuming jurisdiction over the matter. The complaint being one under section 324, P. P. C. And the allegations therein making out a prima facie case under that section, the Magistrate has jurisdiction to try the case and this jurisdiction will not cease, if afterwards, during the trial, the case transpires to be one under another section or section 323 of the Penal Code which is triable by the Conciliation Court. Subsequent finding on facts or change of sections during the trial will not oust the jurisdiction of the Court. He may again convert the charge into one under section 324, P. P. C., if the materials so justify, at any stage of the trial.
10. The criminal Court which had initial jurisdiction to deal with the matter has, in our opinion, right to proceed with the trial of the case. The bar of section 3(1) (a) of the Conciliation Courts Ordinance, 1961 will not affect the jurisdiction of the criminal Court in the circumstance of the case.
11. For the reasons stated above, this reference is rejected. It is directed that the trial of the case, pending before the learned Magistrate, should now proceed to conclusion from the stage at which it was stopped and in accordance with law.
12. ABDULLA, J.-I agree.