JUDICIAL & ADMINISTRATIVE ROLE OF MAGISTRATE

P L D 1985 Supreme Court 62

Present : Shafiur Rahman, S. A. Nusrat and Zaffar Husain Mirza, JJ

BAHADUR AND ANOTHER-Appellants

versus

THE STATE AND ANOTHER-Respondents

Criminal Appeal No. 75 of 1978, decided on 23rd October, 1984.

(On appeal from the Judgment and Order of the Lahore High Court, Lahore, dated 25-4-1973 in Criminal Revision No. 145 of 1973).

Criminal Procedure Code (V of 1898)

-- Ss. 435, 436, 437, 438 & 439-Magistrate concurring with Police Report submitted under S. 173, Cr. P. C. discharging accused and cancelling a criminal case registered under S 379/420, P. P. C. does not function as criminal Court-Order of cancellation of criminal case for that reason is not amenable to revisional jurisdiction of High Court under Ss. 435 to 439. Cr. P. C.-Penal Code (XLV of 1860), Ss. 379 & 420-Criminal Procedure Code (V of 1898), S. 173.

Under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings . or is amenable to the. revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because "Judges often administer and administrators often Judge".

A Magistrate, even while concurring in cancellation of a case is required to judicially examine the report submitted under section 173, Cr. P. C. and this has led to the impression that he must while doing so be acting and functioning as a Court. This obviously is a mistaken impression.

The primary characteristics of `pure' judicial functions, by whomsoever exercised, are :

(1) The power to bear and determine a controversy.

(2) The power to make a binding decision (sometimes subject to appeal) which may affect the person or property or other rights of the parties involved in. the dispute.

Administrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services.

Robson, Justice and Administrative Law, p. 15 quoted.

Held, 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. 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 lender himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr. P. C. be does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr. P. C. This appeal is, therefore, allowed, and the impugned order of the High Court is set aside, as one without jurisdiction.

Wazir v. The State P L D 1962 Lab. 405 (F. B.) ; Emperor v. Hayat Fateh Din A 1 R 1948 Lab. 184 (F. B ); Mst. Fatima Bibi v. Rana Lal Hassan 1970 P Cr. L J 178; Muhammad Ishaq Khan v. Abdul Hamid Khan P L D 1958 Azad J & K 42; Brahm Dev. v. Emperor A I R 1938 Lab. 469; Dharamdas Hiranand v. Emperor A I R 1938 Sind 213; Uma Singh v. Emperor A I R 1933 Pat. 242 and Kamsarup v. State A I R 1951 Raj 146 approved.

Reid and David on Administrative Law and Practice, 2nd Edn. ; Canadian Legal Text Series, p. 52 ; A I R 1968 S C 117 ; 1972 P Cr. L J 1446: 1971 P Cr. L 1 194 ; A I R 1969 A P 281 and Royal Aquariam's case (1892) 1 Q B 431 ref.

Amir Ali v. The State and others P L D 1968 Lab. 537 ; State v. Vipra Khimji Gangaram 1952 P Cr. L J 11184 ; E. Pedda Subba Reddy v. State A I R 1969 A P 281; Narayan Ramchandra Karambelkar v. The State 1972 P Cr. L J 1446 (F. B.) and Krishna v. State 1966 P Cr. L J 650 not approved.

Ghulam Mujtaba, Advocate-on-Record for Appellants.

Malik Saeed Hassan, Advocate Supreme Court for Respondent.

M. A. Bajwa, Advocate Supreme Court for the State.

Date of hearing : 30th March, 1983.

JUDGMENT

SHAFIUR RAHMAN, J.-Leave to appeal was granted to examine whether a Magistrate concurring with the police report submitted under section 173,

Cr. P. C., discharging the accussed and cancelling a criminal case registered under section 397/420, P. P. C., acts as Court in judicial proceedings and is for that reason subject to the revisional jurisdiction of the High Court under section 439, Cr. P. C.
The appellants Bahadur and six others purchased a 1968 model Bedford bus (Regd. No. G. I. 6650). from Arif Zahoor, Muhammad Aslam and Co. Gujranwala for a sum of Rs. 39,000. After a month they entered into an agreement to sell it to Ibrahim respondent No. 2. Price fixed was Rs. 31,000 out of which Rs. 8,000 were paid and delivery of the bus obtained by Ibrahim. The balance of Rs. 23,000 was to be paid on or before 25-11-1971. It was stipulated that in case of failure of Ibrahim to pay the balance by that date he shall be liable to pay an additional amount of Rs. 5,000 by way of penalty. Ibrahim failed to make the payment.

The bus was taken back by the appellants. On 19-1-1972, a report was lodged by respondent Ibrahim at Police Station Kamoki claiming that he had purchased .he bus from Arif Zahoor, Muhammad Aslam and Co. of Gujranwala for Rs. 30,000 on 28-7-1971 and held the receipt and the transfer documents and the bus was duly registered in his name and that of his partners. He alleged that on 9th and 10th of January, 1972 the appellants accused of the offence had forcibly taken the bus alongwith the driver, wrongfully confined the driver and kept this bus. A case was registered under section 379/420, P. P. C. and during the investigation of the case the bus was recovered from the appellants. The appellants obtained bail from Courts. After completing the investigation of the case instead of submitting a challan, a report was submitted showing that no case was made out against the appellants. The cancellation of the case and discharge of the bail bonds of the appellants was sought. The concerned Ilaqa Magistrate passed the following operative order on 20-1-1973 on this report :

"I have perused the file of the whole case and the documents attached with it. Regarding the ownership of the Bus, there is a dispute between the parties and in support thereof documents have been filed by the both the complainant and the accused. The fate of the case rests on the fact of ownership and I find the matter is of a civil nature and should have been decided by a civil Court of competent jurisdiction. At present the facts do not warrant the trial of the case. No case is made out against the accused and I find the request of the police to discharge the accused quite genuine, legal and based  upon sound investigation. 1, therefore, discharge the accused and order that the Bus be handed over to the person from whose custody it was taken into possession by the police after the result of appeal or revision etc. against the order."

The complainant-respondent Ibrahim thereupon invoked the revisional jurisdiction of the High Court under section 439, Cr. P. C. A preliminary objection was taken by the State counsel that the order impugned was not a revisable order as it was an administrative order and not a judicial order of Court inferior to the High Court. The learned Judge in the High Court held that the Magistrate cancelling a case on a report under section 173 acts judicially as Court and for that reason the order was revisable. The learned Judge held as follows :-

"I am clear in my mind that a Magistrate examining the final report submitted by the police under section 173, Cr. P. C in respect of an offence alleged to have been committed does not come under any such exception and while deciding as to whether he should cancel the case as recommended by the police or take cognizance under section 190, Cr. P. C. despite the police recommendation to the contrary he certainly acts as a Criminal Court. In my opinion, therefore, whatever be the decision of the Magistrare . it is revisable by the High Court under section 439, Cr. P. C. In the case Amir Ali v. State and another P L D 1968 Lab. 537 my learned brother Shamim Hussain Kadri, came to the same conclusion though for different reasons It was however, observed in that case that another remedy being available to the complainant by way of filing a private complaint the order of the Magistrate striking off the case should not be interfered with in revision. This, in my opinion, depends upon the circumstances of each case."

The order of the High Court concluded as hereunder

"I, therefore, set aside the impugned order and remit the case back to the learned Magistrate having jurisdiction in the matter to reexamine the question of the guilt of the accused persons in this case regardless of the civil aspect of the dispute between the parties, and, while so doing, to decide also the question of the custody of the Bus."

The specific question of law to examine which leave to appeal has been granted is not free from controversy. It would appear that in a number of cases the list whereof, which is by no means exhaustive but only illustrative, follows, it was held that cancellation of a case and discharge of an accused on a report under section 173, Cr. P. C. is a judicial act of the Court. There is also the other view that a Magistrate while cancelling a case on a report of the police under section 173, Cr. P. C. is not acting as Court nor such an order is revisable.

A. In support of the view that in discharging the accused on a report under section 173, Cr. P. C. and in cancelling the registered criminal

case the Magistrate acts as a Court and his order is revisable under section 439, Cr. P. C., the following decisions are referable :

(i) Amir All v. The State and others P L D 1968 Lab. 537.

(ii) State v. Yipra Khimji Gangaram 1952 Cr. L J 1084.

(iii) E. Pedda Subba Reddy v. State and another A I R 1969 A P 281.

(iv) Narayan Ramchandra Karambelkar v. The State 1972 Cr. L J 1440 (F. B.).

(v) Krishna v. State 1966 Cr. L J 650.


B. In support of the view that in discharging the accused and cancelling a registered criminal case, on a report under section 173, Cr. P. C. a Magistrate does not act as Court, that his order is administrative and . not revisable under section 439, Cr. P. C., the following decisions are

referable :

(i) Wazir v. The State P L D 1962 Lab. 405 (F. B.).

(ii) Emperor v. Hayat Fateh Din A I R 1948 Lab. 184 (F. B.).

(iii) Mst. Fatima Bibi v. Rana Lai Hassan 1970 P Cr. L J 178.

(iv) Muhammad Ishaq Khan v. Abdul Hamid Khan P L D 1958 Azad, J & K 42.

(v) Brahm Dev. v. Emperor A I R 1938 Lab. 469.

(vi) Dharamdas Biranand v. Emperor A I R 1938 Sind 213.

(vii) Uma Singh v. Emperor A I R 1933 Pat. 242.

(viii) Ramsarup v. State A I R 1951 Raj. 146.

The Magistrate, by the impugned order, dealt with and disposed of a final report submitted to him under section 1.73, Cr. P. C. recommending the cancellation of the registered criminal case. Neither section 173, Cr. P. C. nor any other provision of the Criminal Procedure Code specifically deals with the question of cancellation of a registered criminal case. In the Full Bench decision Wazir v. State (P L D 1962 Lah. 405), such a power was found to be "inherent in section 173 read with section 190 of the Code of Criminal Procedure though the language of subsection (3) does not specifically apply to the case".

Section 23 of the Police Act enumerates the duties of police officers and one of these is "to detect and bring offenders to justice". Section 46 of the Police Act empowers the Provincial Government to make rules consistent with Act by notificati,)n in the official Gazette inter alia for regulating "the procedure to be followed by Magistrates and police officers in the discharge of any duty imposed upon them by or under this Act. The Punjab Police Rules, 1934 have been framed and notified by the Provincial Government. In Chapter XXIV concerning information to the police there is rule 7 which specifically deals with cancellation of cases and it is reproduced hereunder in extenso

"Unless the investigation of a case is transferred to another police station or district, no first information report can be cancelled without the order of a Magistarte of the 1st class.

When information or other intelligence is recorded under section 154, Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non cognizable or matter for a civil suit, the Superintendent 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. On receipt of such an order the officer-in-charge of the police station shall cancel the first information report by drawing a red line across the page, noting the name of the Magistrate cancelling the case with number and date of order, He shall then return the original order to the Superintendent's office to be filed with the record of the case."

The next rule on the subject is again rule in Chapter XXV dealing with investigation. It is re-produced hereunder

"When a case is transferred from one police station to another, the offence registered in the original police station sha11 be cancelled by the Superintendent and a first information report shall be submitted from the police station in the jurisdiction of which the case occurred."

Finally in the same Chapter is rule 57 dealing with close of investigation and final report. Sub-rule (3) which has some relevance is re-produced hereunder :

"If the informant is present when the final report is prepared, he shall be informed verbally of the result of the investigation, and, after noting this fact in the final report, his signature or thumb mark shall be taken on it. If the informant is not present, he shall be informed in writing by postcard or by the delivery of a notice by hand, and the fact that this has been done shall be noted in the final report.

In final (untraced or cancelled) reports the facts of the case which the investigating officer believes to be correct should be summarised,
together with the grounds for his belief. Information so recorded should be utilised for the completion of preventive records."

The revisional powers under the Criminal Procedure Code (Sections 435, 436, 439 and 439-A, Cr. P. C.) are exercisable only in respect of "any proceeding" conducted by "inferior", "criminal Court". The order cancelling a case qualifies as proceeding, equally so the Magistrate passing the order as inferior, in relation to Court of Sessions and the High Court. The only question requiring determination is whether the Magistrate in cancelling the case acts as a criminal Court. Criminal Procedure Code contains no definition of Court nor does the Penal Code. In section 20 of Penal code "Court of Justice" is defined as "a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially". This definition is of avail for the purposes of Criminal Procedure Code as subsection (2) of section 4 th.-treof provides "all words and expressions used herein and defined in the Pakistan Penal Code, and not hereinbefore defined shall be deemed to have the meanings respe:tively attributed to them by that Code". The High Court has taken the view, and we think rightly so, that under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because as observed, "Judges often administer and administrators often Judge". Robson (Justice and Administrative Law, p. 15) has after noticing the difficulties and the limitations provided a basis for classification of judicial functions to serve practical purposes. It is reproduced hereunder as follows :

"With so delicately graded a seale of authorities it is scarcely surprising if we find it difficult to discover an infallible test which shall immediately tell us which functions are judicial and which administrative. It is, however, necessary for practical purposes to have some kind of a classification; and we may accordingly suggest that the primary characteristics of `pure' judicial functions, by whomsoever exereised  are

(1) The power to hear and determine a controversy.

(2) The power to make a binding decision (sometimes subject to appeal), which may affect the person or property or other rights of the parties' involved in the dispute.

Administrative functions, on the other hand, consist of those activities which are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services."

Reid and David in Administrative Law and Practice, 2nd Edn. Canadian Legal Text Series observe at page 52

"One hardly needs to be reminded of the pervasiveness of the doctrine that the nature of the function governs all questions. It touches such diverse issues as the application of the doctrine of res judicata which has been held not to apply to the exercise of administrative power, and the doctrine of functus officio which has been held in effect not to apply to prevent the exercise of administrative powers."
DeSmith Administrative Laws 3rd Edn. expresses himself on the subject in the following words :

"A judicial decision made within jurisdiction is binding and conclusive in so far as it cannot be impeached in collateral proceedings and it cannot in general be rescinded by the tribunal itself" (p. . 5).

A non-judicial act, order, or decision, on the order band is potentially open to attack for any material error of law or fact in either direct or collateral proceedings and it cannot reconstitute res judicata. In addition, it is sometimes said that a Legislative or administrative act may always be rescined by the body making it whereas a valid judicial determination cannot save on very limited grounds."

A Magistrate, even while concurring in cancellation of a case is required to judicially examine the report admitted under section 173, Cr. P. C., A I R 1968 S C 117 and this has led to the impression that lie must while doing so be acting and functioning as a Court 1972 Cr. L J 1446, 1971 Cr. L J 194 and A I R 1969 A P 281 etc. This obviously is a mistaken impression and the mistake will transparently surface from what has been observed by Robson and what was held in the case of Royal Aquarium ((1892) 1 Q B 431) Robson at page 39 observes

"We are inclined to go so far as to suggest, indeed, that the whole modern connection of economic and social democracy involves the exercise of discretion’s which shall be `judicial' in that they are not to depend on individual caprice and shall be free from personal favour and individual self-interest ; and this may imply an extension in certain respects of the judicial mind, an application of mental habits common among those who administer the judicial process."

In the Royal Aquarium case it was held that :

"The word `judicial' has too meanings. It may refer to the discharge of duties exercisable by a Judge or by justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind-that is, a mind to determine what is fair and just in respect of the matters under consideration. Justices, for instance, act judicially when administering the law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them, as, for instance, levying a rate."

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 power, 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. 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 officio. On the contrary he is quite competent to entertain and deal with such a complaint on material prescnted to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr. P. C. he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr. P. C. This appeal is, therefore allowed, and the impugned order of the High Court is set aside, as one without jurisdiction.

Appeal allowed.