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Casedes=1979S795

1979 S C M R 200

Present: Muhammad Akram and Nasim Hasan Shah, JJ

MUHAMMAD RAMZAN Petitioner

versus

THE STATE AND OTHERS .Respondents

Criminal Petition for Special Leave to Appeal No. 238 of 1977, heard on 16th January, 1978.

(a) Criminal Procedure Code (V of 1898)

Ss. 366 & 369 High Court Power to rehear after passing oral orders Order pronounced orally in light
of provisions of Ss. 366 & 369, held, no bar to rehearing of case by High Court before actual signing and
sealing of order. [Judgment Review].

Amodini Dasee v. Darson Ghos 1912 Cr. L J 120 (Cal.) ; Amin Sharif v. Syeda Khatoon P L D 1962 S C
97 and Rukan Din v. Hafiz ud Din P L D 1962 (W. P.) Lah. 161 ref.

(b) Criminal Procedure Code (V of 1898)

----S. 156(3) read with Ss. 202 to 204 Magistrate not taking cognizance of a private complaint by
applying his own mind to complaint and neither recording complainant's statement nor statements of his
witnesses, Magistrate, held, could in circumstances send case to police for registration, necessary
investigation and disposal according to law. [Complaint].

Raja Munawar Khan etc. v. Muhammad Ishaq etc. P L D 1975 Lah. 577; Munir Ahmad v. The State and
another P L J 1975 Cr. C (Lah.) 370 and Azizur Rehman v. The State P L D 1960 Dacca 631 ref.

S. Abid Nawaz, Advocate on Record for Petitioner.

Waheeduddin Virk, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri,
Advocate on Record for Respondent No. 4.

Nemo for Respondents Nos. 1 to 3.

Date of bearing: 16th January 1978.

JUDGMENT

MUHAMMAD AKRAM, J. This is a petition for special leave from the order dated 14th of September
1977, passed by a learned Judge of the Lahore High Court at Lahore dismissing the Criminal
Miscellaneous No. 145 Q of 1977 filed by the petitioner herein against the respondents.

2. It is alleged that the father of the petitioner was transferred shop bearing No. 3727 and Omar Din
respondent No. 4 is the transferee in possession of the Choubara of the contiguous House No. 3226,
situated in Ghalla Mandi Bazar, Pakpattan, District Sahiwal. The petitioner started reconstructing his
shop. On this on the 8th of September 1976, the respondent filed a declaratory suit against the petitioner
in the Civil Court at Pakpattan for a permanent injunction restraining him from demolishing the premises
and reconstructing .the same. The respondent also made an application for the issuance of a temporary

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injunction during the pendency of the suit which was however, dismissed. His appeal against the order
was also rejected by the Additional District Judge Sahiwal.

3. In these circumstances on the 26th of October 1976, the respondent moved a miscellaneous application
before the Deputy Commissioner, Sahiwal for appropriate action against the petitioner under section
448/452/379, P. P. C. It was alleged that the present petitioner had forcibly demolished the roof of his
shop which formed a part of the courtyard belonging to him and after having trespassed into his premises
had abused his womenfolk. But that the local police in collusion with the petitioner refused to even
register the case against him. He, therefore, prayed that the case may be got registered against the
petitioner herein for disposal in accordance with the law.

4. On this on the 26th of October 1976, the Deputy Commissioner forwarded the application to the
Assistant Commissioner (P) to look into it so that his genuine grievance was redressed. In turn on the 4th
of November 1976, the Assistant Commissioner (P) directed the S. H. O., Pakpattan to register the case
against the accused (petitioner) under section 379;448452, P. P. C. Accordingly on the 8th of November
1976,the S. H. O., Police Station, Pakpattan registered the complaint on this application of the respondent
against the petitioner.

5. In these circumstances the petitioner herein filed a Petition (Criminal Miscellaneous No. 762 Q of
1976) in the High Court for quashment of the proceedings: But on the 4th of March 1977, a learned Judge
of the Lahore High Court dismissed the application as premature as it transpired at the time that the case
was still under investigation.

6. The petitioner then filed the second petition (Cr. Misc. No. 145 Q of 1977) under section 561 A, Cr. P.
C. read with Article 199 of the Constitution for quashment of the proceedings initiated against him. On
the 12th of April 1977 the learned Single Judge partly heard the counsel for the parties. However, it
appears that at the resumed hearing the counsel for the respondent failed to appear, and the Court orally
pronounced the order in favour of the petitioner in the light of law cited before him. But sometime later
on the same day the learned counsel for the respondent put in appearance and filed an application under
section 561 A, Cr. P. C. for rehearing and reconsideration of the order that had been thus orally
announced. Eventually, after notice to the parties and on further consideration the learned Single Judge
dismissed the Criminal Miscellaneous No. 156 Q of 1977 filed by the petitioner herein for quashment of
the proceedings taken against him at the instance of respondent No. 1. Hence this petition for special
leave to appeal from the judgment.

7. The learned Single Judge of the High Court in his impugned judgment has held that on the 12th of
April 1977 at the resumed hearing he had pronounced the order orally which had not been signed by him
when the respondent made the application for rehearing and reconsideration of the order thus orally
announced. In: this connection the Court relied on Amodini Dasee v. Darson Ghos (1912 Cr. L J 120
(Cal.)), Amin Sharif v. Syeda Khatoon (P L D 1962 S C 97) and Rukan Din v. Hafiz ud Din (P L D 1962
(W.P.) Lah. 161) in holding that in the circumstances he was fully justified in rehearing the case and
section 369, Cr. P. C. did not operate as a bar to it. On the merits the learned Judge after rehearing the
parties, was of the considered opinion that in the present case Umar Din respondent had moved the
miscellaneous application on the executive side before the Deputy Commissioner, Sahiwal for action to
be taken against the petitioners under section sections 448, 452 and 379, P. P. C. because the local police
had failed to take cognizance of the matter. From the record the Court formed the opinion that this
application was not in the nature of a complaint as envisaged by section 200, Cr. P. C. Moreover, in
pursuance to this application no statement of the complainant was at all recorded either by the Deputy
Commissioner in his capacity as the District Magistrate or the Assistant Commissioner as a Magistrate of
the area and the application was straightaway marked by the Deputy Commissioner to the Assistant
Commissioner who forwarded the same to the police for the registration of the case against the present
petitioner and investigation. In the circumstances; in the opinion of the learned Judge it could not
therefore, be held that they had taken cognizance of the private complaint under section 200, Cr. P. C. and

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they were, therefore, bound to proceed in accordance with the provision of sections 202 204, Cr. P. C. and
could not refer the matter to the police under section 156 (3), Cr. P. C. In support of this opinion the
learned Single Judge, inter alia, relied on the pronouncement in Raja Munawar Khan etc. v. Muhammad
Ishaq etc. (P L D 1975 Lah. 577) and Munir Ahmad v. The State and another (P L J 1975 Cr. C. (Lah.)
370).

8. In this petition before us the learned counsel for the petitioner was unable to support his contention to
the effect that the High Court was not competent to rehear and reconsider the order orally passed by it on
the 12th of April 1977. The pronouncement having been made orally and in the light of the provisions
contained in sections 366 and 369, Cr. P. C. the High Court was competent to have reheard the case before
the judgment A was actually signed and sealed by the Court. On the merits also we are inclined to agree
with the view taken by the learned Single Judge of the High Court in holding that the miscellaneous
application dated 26th of October 1976 filed by the respondent before the Deputy Commissioner was not
in the nature of a private complaint envisaged by the provisions contained in section 200, Cr. P. C. Neither
the Deputy Commissioner nor even the Assistant Commissioner had recorded the statement of the
respondent in pursuance to this application. As such either the Deputy Commissioner as the District
Magistrate or the Assistant Commissioner as the local Magistrate could be said to have taken cognizance
of the private complaint under section 200, Cr. P. C. They had rather acted as the executive officer
incharge of the area and merely directed the police to do its duty in accordance with the law in registering
the case against the petitioner under section 156 (3) of the Code. In these circumstances as held in Azizur
Rehman v. The State (P L D 1960 Dacca 631) and the two Lahore cases noticed above if a Magistrate
takes cognizance of a private complaint under section 200, Cr. P. C. by recording the statement of the
complainant, he must. thereafter proceed in accordance with the provisions of Chapter XVI of the Cr. P.
C. i.e. under sections 202 to 204, Cr. P. C. It is only then that he cannot refer the matter to the police under
section 156 (3) of the Code which lies in an altogether different chapter. But he could, if he so chose,
instead of recording the statement of the complainant, send the case for investigation to the police under
section 156 (3), Cr. P. C. It follows, therefore, that where a learned Magistrate, as in the present case, has
not taken cognizance of a private complaint by applying his own mind to it and had not recorded the
statement of the complainant or his witnesses, it is open to him to send the case to the police for
registration, necessary investigation into the same and disposal in accordance with the law. The learned
counsel before us then laid stress to contend that even according to the facts alleged in the F. I. R. lodged
at the instance of the respondent, no offence under sections 448, 452 and 379, P. P. C. has been made out.
It is further contended that the dispute between the parties was essentially of a civil nature and the
respondent having failed in the civil Court to secure any temporary injunction against the petitioner had
initiated the criminal proceedings. Even otherwise according to the learned counsel the respondent had
lodged the complaint after an inordinate delay and for all these reasons the proceedings against the
petitioner were liable to be quashed. But none of these contentions has any force and no case has been
made out for quashment of the proceedings at this stage.

For the foregoing reasons there is no force in this petition which is therefore, dismissed.

Petition dismissed.

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