PLJ 1999 Karachi 859 (DB)
[Sukkur Bench]
Present: rana bhagwandas and mushib alam, J J.
SOOFI ABDUL QADIR-Petitioner
Versus
STATE and others-Respondents
Constitutional Petition Nos. D-1339 of 1995 and D-793 of 1997, heard on 2.9.1999.
(i) Criminal Procedure Code, 1898 (V of 1898)-
—S. 173--Constitution of Pakistan (1973), Art. 199«Police Rules (1934), R. 25, 27»Cancellation of case under & 173 Cr.P.C. by Executive Magistrate on police report--Validity-Investigating officer can dispose of First Information Report as cancelled class when be arrives at conclusion that the same was false, founded on mistake of fact or law, or indicated dispute of civil nature or untraceable after all necessary steps to the test of his endeavor and ability but order of cancellation of First Information Report must be obtained from Magistrate Competent to take cognizance of offence or to try the case or to send matter for trial to superior Court-Inherent qualification for a Magistrate as provided in Criminal Procedure Code is competence to take cognizance of offence and not necessarily he being vested with powers of First Class Magistrate-Offence mentioned in First Information Reports forming subject matter of constitutional petition, do not fall under Chapters VIII, X, XIII & XIV, P.P.C. which have now been assigned to jurisdiction of Executive Magistrates after separation of judiciary from Executive, therefore, Executive magistrate was not competent to take cognizance of such offences and to try accused or to send him for trial before competent Court of law.
[Pp. 862 & 863] A & B
(ii) Criminal Procedure Code, 1898 <V of 18»8)»
—Ss. 435, 439, 173 & 561-A--Constitution of Pakistan (1973), Art. 199-Concurrence of Magistrate with Police report submitted under S. 173 Cr.P.C. resulting in cancellation of case-High Court's power to revise or modify such order-Magistrate while concurring with police report submitted under S. 173 Cr.P.C. does not act as criminal Court inferior to Court of Sessions and the High Court, therefore, his order could not be revised and modified under provisions of S. 435 and 439, Cr.P.C—Such order, however, would be amendable to inherent jurisdiction of High Court under S. 561-A, Criminal Procedure Code, 1898, provided the same amounted to abuse of process of Court-High Court was inclined to exercise such power in order to seem ends of justice, suppress patent mischief as non-interference with impugned orders would amount to perpetuate injustice which had caused grave miscarriage of justice and prejudice to interest of petitioners-Regardless of fact whether Executive Magistrate applied his fair and judicial mind to facts stated in summary submitted by Police, such Magistrate having not been vested with jurisdiction to take cognizance of offences incorporated in F.I.R. he had acted without jurisdiction and orders passed by him were coram-non- judice and thus quashed. [Pp. 863 & 864] C, D
1993 SCMR 187; 1997 SCMR 304; 1997 SCMR 1503 ref.
Mr. S. Mi Aslant Jafari and Nizam-ud-Din Baloch, Advocates for Petitioners.
Mr. Zawar Hussain Jafari, Add. A.G. for the State.
Dy. Attorney General for Mr. Abdul Ghani.
M/s. M.A. Rashid, Abdul Fatah Malik and Mohib-ullah Sheikh, as amicus curiae.
Date of hearing: 2.9.1999.
judgment
Rana Bhagwandas, J.--Short question involved in both the Constitutional petitions before us is whether learned SDM admittedly an Executive magistrate under the scheme of law as competent to concur with a police report submitted under the provisions of Section 173 Cr.P.C. by the investigating agency and dispose of the FIR as cancelled class.
2. In the Constitutional petition at Serial No. 1, petitioner is aggrieved by the order passed by SDM Khairpur in relation to crime No. 4/95 registered at PS Pir-jo-goth with regard to offence under Section 20 Offences Against Properly (Enforcement of Hudood) Ordinance and Section 13(d) Arms Ordinance. In the petition at Serial No. 2 petitioner Alisher is aggrieved by the recommendation of Deputy Inspector General of Police Sukkur Range directing the disposal of FIR No. 2/1996 registered at PS Jhangro in relation to offences under Sections 302, 364, 324, 429, 427, 148, 149 PPC and 13(d) Arms Ordinance as cancelled class. However, after issuance of pre-admission notice to the respondents, SSP Sukkur in his comments while supporting the view formed by the Investigating Officer for cancellation of the case under Section 173 Cr.P.C. read with Police Rule 25.57 of the Police Rules 1934 has produced a photo copy of order dated 20.6.1997 passed by SDM Rohri concurring with the police report.
3. These petitions have remained pending for a pretty long time before this Bench and it appears that on an earlier occasion M/s Habibullah Shaikh, Abdul Fatah Malik and M.A. Rasheed advocates were requested to act as arnicas curiae to assist this Court in arriving at a just and correct conclusion.
4. At the final hearing of these petitions for Katcha Peshi we have had the advantage of hearing learned counsel for the petitioners, learned
Addl. A.G. as well as the amicus curiae appointed by this Court for assistance on the question of law involved.
5. In terms of Section 169 Cr.P.C. upon investigation of a cognizable offence if it appears to the officer incharge of the police station or an officer making investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate, such officer is empowered to release the accused if he be in custody on his executing a bond with a direction to appear before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or send him for trial, if and when so required (emphasis underlined). Under the provisions of Section 170 Cr.P.C. if it appears to the Investigating Officer that there is sufficient evidence or reasonable ground to proceed, he shall forward the accused to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial with a further stipulation that if the offence be non-bailable, he shall forward the accused in custody, but if the offence be bailable and the accused is able to furnish security, he shall obtain security from him for his appearance before such Magistrate on a day fixed for his attendance. Again Section 173 Cr.P.C. postulates that every investigation under Chapter XIV shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, with necessary particulars of the offence, accused and the names of the parties who may be acquainted with the circumstances of the case. Subsection (3) ordains that whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
6. With the active assistance of Mr. MA Rasheed advocate we were able to lay hands on Rules 24.7 and 25.57 of the Police Rules 1934 which are applicable to the Province of Sindh. Rule 24.7 stipulates that no first information report can be cancelled without the orders of a Magistrate of the
First Class. It lays down that when information or other intelligence is recorded under Section 154, Cr.P.C. and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non- ognizable or matter for a civil suit, the Superintendent of Police shall send
the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class, for orders of cancellation. Likewise Rule 25.57 of the aforesaid Rules inter alia is in line with the provisions contained in Section 173 Code of Criminal Procedure. Virtually it lays down that where the police are unsuccessful after taking all the measures in their power, and it is considered advisable to suspend the investigation a final report in form 25.57(2), shall be submitted as required by Section 173 Cr.P.C.
7. On plain reading of the aforesaid provision of law we think that there can be no cavil with the authority of the Investigating Officer to
dispose of a first information report as cancelled class when he arrives at t e conclusion that the same is false, founded on a mistake of fact or law, a dispute of civil nature or untraceable after taking all necessary steps to the best of his endeavour and ability but the order of cancellation of FIR must be obtained from a Magistrate competent to take cognizance of the offence and to try the case or to send matter for trial to a- superior Court It would appear that in so far competence of magistrate to take cognizance of the offence is concerned, Rule 24.7 is inconsistent with Section 173 Cr.P.C. as it incorporates the words "Magistrate having jurisdiction and being a Magistrate of the First Class*. To our mind the words "Magistrate of the First Class" are seemingly unnecessary as the inherent qualification for a Magistrate as provided in the Criminal Procedure Code is competence to take cognizance of the offence and not necessarily he being vested with powers of a First Class Magistrate.
8. n the case in hand while crime under Section 20 of the. Offences Against Pro erty (Enforcement of Hudood) Ordinance is punishable with imprisonment as provided for dacoity, robbery or extortion as the case may be, Offence under Section 302 PPG is punishable with death or imprisonment for life and fine. Punishment for robbery as provided in Section 392 PPC is imprisonment extending to 14 years. In terms of Section 395 PPC punishment for dacoity is imprisonment for life or rigorous imprisonment for a term which shall not be less than four years nor more than ten years and fine. The expression "extortion" is included within the interpretation of the offence of robbery under Section 390 PPC, therefore it may carry the same amount of punishment as is prescribed for offence of robbery.
9. Having held above we proceed to examine whether learned SDM was competent to take cognizance of the offence in relation to which he passed an order on the summary submitted by Superintendent of Police for cancellation of the FIR for want of evidence or otherwise. Plan answer to this question would be in negative for according to Schedule II to the Criminal Procedure Code, the offences referred to above are ordinarily triable by the ourt of Sessions and not by a Magistrate of the First Class. The position in law is very clearly amplified after the separation of the Judiciary from the Executive with effect from 20th March 1996 when Legal Reforms Ordinance XL of 1996 was promulgated which assumed the status of Legal Reforms Act 1997 with effect from 3rd July 1997. Now Section 28 of the Criminal Procedure Code which enumerates the categories of Magistrate stipulates that offences falling in Chapter VIII, X, XIII and XIV of Pakistan Penal Code,except offences specified in Section 153A and Section 281 of the said Code, shall be tried by the Executive Magistrate. Admittedly offences mentioned in the FIRs forming the subject-matter of both the petitions do not fall under Chapters VIII, X, Xin and XIV of the Pakistan Penal Code which have now been assigned to the jurisdiction of Executive Magistrates after the separation of Judiciary from Executive and thus it can be safely concluded that learned SDM was not competent to take cognizance of such offences and to try the accused or to send him for trial before a competent Court of law.
10. We now revert to the nature of the order passed by Executive Magistrates in such eventualities and whether such order is revisable by this Court in exercise of revisional jurisdiction in terms of Sections 435 and 439 Cr.P.C. This question came up before a Full Bench of the Supreme Court in Bahadur v. State (P1D 1985 SC 62) in which it was authoritatively laid down that though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. It was ruled that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus offlcio. On the contrary he is quite competent to entertain and deal with such a complaint on material pecularities to him. On such assessment Supreme Court concluded that these peculiarities establish beyond doubt that in so concurring with a report submitted under Section 173 Cr.P.C., he does not function as a criminal Court. With reference to treatises on Justice and Administrative Law by different well known authors, Supreme Court expressed the view that some of the powers of the Magistrate are administrative, executive or ministerial and he discharges these duties not as a Court but as a "persona designata". This view was followed in Arif Ali Khan v. State (1993 SCMR 187) and Muhammad Sharif v. State (1997 SCMR 304) which was also referred in the latest case of Hussain Ahmed v. Irshad Bibi (1997 SCMR 1503). Ratio decidendi in all the cases appears to be that since the Magistrate while concurring with a police report submitted under Section 173 Cr.P.C. does not act as a criminal Court inferior to the Court of Sessions and the High Court, his order cannot be revised and modified under the provisions of Section 435, 439 Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under Section 561-A Cr.P.C. provided the order amounts to abuse of process of Court. In law, we are bound, by the dictum, laid down by the apex Court and tile counsel appearing for tile parties as well as the amicus curiae were not in a position to distinguish the rule laid down in the aforesaid cases with the only distinction in the petitions being that these have been filed under Article 199 of the Constitution. Since this Court is vested with the authority under Section 561-A, Cr.P.C. we are inclined to exercise the said power in order to secure the ends of justice, suppress the patent mischief as non-interference caused grave miscarriage of justice and prejudice to the interests of the petitioners. In our view, invocation of the Constitutional jurisdiction of this * Court by itself may not be a circumstance strong enough to disentitle petitioners to the exercise of power of this Court under Section 561-A Cr.P.C. Regardless of the fact whether the Magistrate applied his fair and judicial mind to the facts stated in the summary submitted by police, since he was not vested with the jurisdiction to take cognizance of the offence, weare of definite view that he acted without jurisdiction and the orders passed by him are coram nonjudice and accordingly quashed. Resultantly both the petitions succeed and are hereby allowed with no order as to costs.
11. Before parting with the judgment we feel inclined to record a note of appreciation and gratitude to the learned counsel who endeavoured • to enlighten us on the question of law involved in these petitions.
(A.A.) Petition accepted.
The End
[Sukkur Bench]
Present: rana bhagwandas and mushib alam, J J.
SOOFI ABDUL QADIR-Petitioner
Versus
STATE and others-Respondents
Constitutional Petition Nos. D-1339 of 1995 and D-793 of 1997, heard on 2.9.1999.
(i) Criminal Procedure Code, 1898 (V of 1898)-
—S. 173--Constitution of Pakistan (1973), Art. 199«Police Rules (1934), R. 25, 27»Cancellation of case under & 173 Cr.P.C. by Executive Magistrate on police report--Validity-Investigating officer can dispose of First Information Report as cancelled class when be arrives at conclusion that the same was false, founded on mistake of fact or law, or indicated dispute of civil nature or untraceable after all necessary steps to the test of his endeavor and ability but order of cancellation of First Information Report must be obtained from Magistrate Competent to take cognizance of offence or to try the case or to send matter for trial to superior Court-Inherent qualification for a Magistrate as provided in Criminal Procedure Code is competence to take cognizance of offence and not necessarily he being vested with powers of First Class Magistrate-Offence mentioned in First Information Reports forming subject matter of constitutional petition, do not fall under Chapters VIII, X, XIII & XIV, P.P.C. which have now been assigned to jurisdiction of Executive Magistrates after separation of judiciary from Executive, therefore, Executive magistrate was not competent to take cognizance of such offences and to try accused or to send him for trial before competent Court of law.
[Pp. 862 & 863] A & B
(ii) Criminal Procedure Code, 1898 <V of 18»8)»
—Ss. 435, 439, 173 & 561-A--Constitution of Pakistan (1973), Art. 199-Concurrence of Magistrate with Police report submitted under S. 173 Cr.P.C. resulting in cancellation of case-High Court's power to revise or modify such order-Magistrate while concurring with police report submitted under S. 173 Cr.P.C. does not act as criminal Court inferior to Court of Sessions and the High Court, therefore, his order could not be revised and modified under provisions of S. 435 and 439, Cr.P.C—Such order, however, would be amendable to inherent jurisdiction of High Court under S. 561-A, Criminal Procedure Code, 1898, provided the same amounted to abuse of process of Court-High Court was inclined to exercise such power in order to seem ends of justice, suppress patent mischief as non-interference with impugned orders would amount to perpetuate injustice which had caused grave miscarriage of justice and prejudice to interest of petitioners-Regardless of fact whether Executive Magistrate applied his fair and judicial mind to facts stated in summary submitted by Police, such Magistrate having not been vested with jurisdiction to take cognizance of offences incorporated in F.I.R. he had acted without jurisdiction and orders passed by him were coram-non- judice and thus quashed. [Pp. 863 & 864] C, D
1993 SCMR 187; 1997 SCMR 304; 1997 SCMR 1503 ref.
Mr. S. Mi Aslant Jafari and Nizam-ud-Din Baloch, Advocates for Petitioners.
Mr. Zawar Hussain Jafari, Add. A.G. for the State.
Dy. Attorney General for Mr. Abdul Ghani.
M/s. M.A. Rashid, Abdul Fatah Malik and Mohib-ullah Sheikh, as amicus curiae.
Date of hearing: 2.9.1999.
judgment
Rana Bhagwandas, J.--Short question involved in both the Constitutional petitions before us is whether learned SDM admittedly an Executive magistrate under the scheme of law as competent to concur with a police report submitted under the provisions of Section 173 Cr.P.C. by the investigating agency and dispose of the FIR as cancelled class.
2. In the Constitutional petition at Serial No. 1, petitioner is aggrieved by the order passed by SDM Khairpur in relation to crime No. 4/95 registered at PS Pir-jo-goth with regard to offence under Section 20 Offences Against Properly (Enforcement of Hudood) Ordinance and Section 13(d) Arms Ordinance. In the petition at Serial No. 2 petitioner Alisher is aggrieved by the recommendation of Deputy Inspector General of Police Sukkur Range directing the disposal of FIR No. 2/1996 registered at PS Jhangro in relation to offences under Sections 302, 364, 324, 429, 427, 148, 149 PPC and 13(d) Arms Ordinance as cancelled class. However, after issuance of pre-admission notice to the respondents, SSP Sukkur in his comments while supporting the view formed by the Investigating Officer for cancellation of the case under Section 173 Cr.P.C. read with Police Rule 25.57 of the Police Rules 1934 has produced a photo copy of order dated 20.6.1997 passed by SDM Rohri concurring with the police report.
3. These petitions have remained pending for a pretty long time before this Bench and it appears that on an earlier occasion M/s Habibullah Shaikh, Abdul Fatah Malik and M.A. Rasheed advocates were requested to act as arnicas curiae to assist this Court in arriving at a just and correct conclusion.
4. At the final hearing of these petitions for Katcha Peshi we have had the advantage of hearing learned counsel for the petitioners, learned
Addl. A.G. as well as the amicus curiae appointed by this Court for assistance on the question of law involved.
5. In terms of Section 169 Cr.P.C. upon investigation of a cognizable offence if it appears to the officer incharge of the police station or an officer making investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate, such officer is empowered to release the accused if he be in custody on his executing a bond with a direction to appear before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or send him for trial, if and when so required (emphasis underlined). Under the provisions of Section 170 Cr.P.C. if it appears to the Investigating Officer that there is sufficient evidence or reasonable ground to proceed, he shall forward the accused to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or send him for trial with a further stipulation that if the offence be non-bailable, he shall forward the accused in custody, but if the offence be bailable and the accused is able to furnish security, he shall obtain security from him for his appearance before such Magistrate on a day fixed for his attendance. Again Section 173 Cr.P.C. postulates that every investigation under Chapter XIV shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, with necessary particulars of the offence, accused and the names of the parties who may be acquainted with the circumstances of the case. Subsection (3) ordains that whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
6. With the active assistance of Mr. MA Rasheed advocate we were able to lay hands on Rules 24.7 and 25.57 of the Police Rules 1934 which are applicable to the Province of Sindh. Rule 24.7 stipulates that no first information report can be cancelled without the orders of a Magistrate of the
First Class. It lays down that when information or other intelligence is recorded under Section 154, Cr.P.C. and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non- ognizable or matter for a civil suit, the Superintendent of Police shall send
the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction, and being a Magistrate of the first class, for orders of cancellation. Likewise Rule 25.57 of the aforesaid Rules inter alia is in line with the provisions contained in Section 173 Code of Criminal Procedure. Virtually it lays down that where the police are unsuccessful after taking all the measures in their power, and it is considered advisable to suspend the investigation a final report in form 25.57(2), shall be submitted as required by Section 173 Cr.P.C.
7. On plain reading of the aforesaid provision of law we think that there can be no cavil with the authority of the Investigating Officer to
dispose of a first information report as cancelled class when he arrives at t e conclusion that the same is false, founded on a mistake of fact or law, a dispute of civil nature or untraceable after taking all necessary steps to the best of his endeavour and ability but the order of cancellation of FIR must be obtained from a Magistrate competent to take cognizance of the offence and to try the case or to send matter for trial to a- superior Court It would appear that in so far competence of magistrate to take cognizance of the offence is concerned, Rule 24.7 is inconsistent with Section 173 Cr.P.C. as it incorporates the words "Magistrate having jurisdiction and being a Magistrate of the First Class*. To our mind the words "Magistrate of the First Class" are seemingly unnecessary as the inherent qualification for a Magistrate as provided in the Criminal Procedure Code is competence to take cognizance of the offence and not necessarily he being vested with powers of a First Class Magistrate.
8. n the case in hand while crime under Section 20 of the. Offences Against Pro erty (Enforcement of Hudood) Ordinance is punishable with imprisonment as provided for dacoity, robbery or extortion as the case may be, Offence under Section 302 PPG is punishable with death or imprisonment for life and fine. Punishment for robbery as provided in Section 392 PPC is imprisonment extending to 14 years. In terms of Section 395 PPC punishment for dacoity is imprisonment for life or rigorous imprisonment for a term which shall not be less than four years nor more than ten years and fine. The expression "extortion" is included within the interpretation of the offence of robbery under Section 390 PPC, therefore it may carry the same amount of punishment as is prescribed for offence of robbery.
9. Having held above we proceed to examine whether learned SDM was competent to take cognizance of the offence in relation to which he passed an order on the summary submitted by Superintendent of Police for cancellation of the FIR for want of evidence or otherwise. Plan answer to this question would be in negative for according to Schedule II to the Criminal Procedure Code, the offences referred to above are ordinarily triable by the ourt of Sessions and not by a Magistrate of the First Class. The position in law is very clearly amplified after the separation of the Judiciary from the Executive with effect from 20th March 1996 when Legal Reforms Ordinance XL of 1996 was promulgated which assumed the status of Legal Reforms Act 1997 with effect from 3rd July 1997. Now Section 28 of the Criminal Procedure Code which enumerates the categories of Magistrate stipulates that offences falling in Chapter VIII, X, XIII and XIV of Pakistan Penal Code,except offences specified in Section 153A and Section 281 of the said Code, shall be tried by the Executive Magistrate. Admittedly offences mentioned in the FIRs forming the subject-matter of both the petitions do not fall under Chapters VIII, X, Xin and XIV of the Pakistan Penal Code which have now been assigned to the jurisdiction of Executive Magistrates after the separation of Judiciary from Executive and thus it can be safely concluded that learned SDM was not competent to take cognizance of such offences and to try the accused or to send him for trial before a competent Court of law.
10. We now revert to the nature of the order passed by Executive Magistrates in such eventualities and whether such order is revisable by this Court in exercise of revisional jurisdiction in terms of Sections 435 and 439 Cr.P.C. This question came up before a Full Bench of the Supreme Court in Bahadur v. State (P1D 1985 SC 62) in which it was authoritatively laid down that though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. It was ruled that the party is left free to institute a complaint on the same facts and the same Magistrate does not even after passing such an order render himself functus offlcio. On the contrary he is quite competent to entertain and deal with such a complaint on material pecularities to him. On such assessment Supreme Court concluded that these peculiarities establish beyond doubt that in so concurring with a report submitted under Section 173 Cr.P.C., he does not function as a criminal Court. With reference to treatises on Justice and Administrative Law by different well known authors, Supreme Court expressed the view that some of the powers of the Magistrate are administrative, executive or ministerial and he discharges these duties not as a Court but as a "persona designata". This view was followed in Arif Ali Khan v. State (1993 SCMR 187) and Muhammad Sharif v. State (1997 SCMR 304) which was also referred in the latest case of Hussain Ahmed v. Irshad Bibi (1997 SCMR 1503). Ratio decidendi in all the cases appears to be that since the Magistrate while concurring with a police report submitted under Section 173 Cr.P.C. does not act as a criminal Court inferior to the Court of Sessions and the High Court, his order cannot be revised and modified under the provisions of Section 435, 439 Cr.P.C. but in that case it is amenable to the inherent jurisdiction of the High Court under Section 561-A Cr.P.C. provided the order amounts to abuse of process of Court. In law, we are bound, by the dictum, laid down by the apex Court and tile counsel appearing for tile parties as well as the amicus curiae were not in a position to distinguish the rule laid down in the aforesaid cases with the only distinction in the petitions being that these have been filed under Article 199 of the Constitution. Since this Court is vested with the authority under Section 561-A, Cr.P.C. we are inclined to exercise the said power in order to secure the ends of justice, suppress the patent mischief as non-interference caused grave miscarriage of justice and prejudice to the interests of the petitioners. In our view, invocation of the Constitutional jurisdiction of this * Court by itself may not be a circumstance strong enough to disentitle petitioners to the exercise of power of this Court under Section 561-A Cr.P.C. Regardless of the fact whether the Magistrate applied his fair and judicial mind to the facts stated in the summary submitted by police, since he was not vested with the jurisdiction to take cognizance of the offence, weare of definite view that he acted without jurisdiction and the orders passed by him are coram nonjudice and accordingly quashed. Resultantly both the petitions succeed and are hereby allowed with no order as to costs.
11. Before parting with the judgment we feel inclined to record a note of appreciation and gratitude to the learned counsel who endeavoured • to enlighten us on the question of law involved in these petitions.
(A.A.) Petition accepted.
The End
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