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Petitioner: KARACHI ELECTRIC SUPPLY CORPORATION VS Respondent: THE STATE and others
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman, Allah Dino G. Memon Title: KARACHI ELECTRIC SUPPLY CORPORATION vs THE STATE and others Case No.: Criminal Miscellaneous Applications Nos. 389 and 397 of 1987 Date of Judgment:1989-03-07 Reported As: 1989 P Cr. L J 1369 Result: Petitions dismissed
JUDGMENT
JUDGMENT ' TANZIL-UR-REHMAN, J.-- These are two criminal miscellaneous applications, bearing Nos. 389 and 397 of 1987, under section 561-A of the Criminal Procedure Code, 1898. The first application has been filed by Karachi Electric Supply Corporation (hereinafter referred to as the 'Corporation') against (i) The State, (ii) Haji Noor Muhammad (hereinafter called as 'the landlord') and three others, and the second application has been filed by Farhat Hussain (hereinafter referred to as 'the tenant'), against (i) The State, (ii) Haji Noor Muhammad (hereinafter referred to as 'the landlord') and three others, feeling aggrieved by and dissatisfied with the judgment dated 18-10-1987 of the learned 4th Additional Sessions Judge (West), Karachi, in Criminal Revision No.7 of 1987, setting aside the order of learned Special Magistrate, First Class (Karachi Electric Supply Corporation Court), passed by him on 30th December, 1987, whereby the learned Magistrate had rejected an application filed by Haji Noor Muhammad (respondent No.2), under section 190(1)(c) of the Criminal Procedure Code, taking cognizance of an offence alleged to have been committed by him, under section 40 of the Electricity Act, 1910. 2. The facts, giving rise to the above applications, briefly stated, are that on 1-3-1986 the Corporation received a complaint from the tenant, alleging that the landlord (respondent No.2, in both the applications) had illegally disconnected their electricity being supplied through their meters, installed by the Corporation. A report was called for from the Deputy Chief Controller, Billing, New Karachi Zone. In response, a report was submitted on 31-3-1986, confirming the allegation, as complained by the tenant. On the basis of the information laid before the Karachi Electric Supply Corporation, the learned Magistrate on 7-6-1986 took cognizance of the offence alleged to have been committed by the landlord under section 190(1)(c) of the Criminal Procedure
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Code for the violation of section 40 of the Electricity Act, 1910 and ordered the accused/respondent No.2 (the landlord) to appear before him on 15-6-1986. The said order reads as under:-- `ORDER UNDER SECTION 190(1)(c). Cr.P.C. ' WHEREAS information has been laid before me which has led me to believe-- (1) that you are the landlord of the premises known as Baloch Plaza, situated at Plot No. SC/38, Block 'M', North Nazimabad, Karachi; (2) that you have rented out Plot No.1 and Flat No.3 of the above-said premises to Farhat Hussain and Ata Muhammad, respectively; (3)hat the energy supply of Electric Meter No. AL-327977 feeding the above-mentioned Flats Nos. 1 and 3 stands disconnected by you since January, 1985 despite the fact that the a foresaid tenants have cleared all dues of the licensee, namely K.E.S.C., against this Meter (No. AL-327977); (4) that electricity being an amenity/service you have disconnected the same without the consent of the tenants and without due process of law; (5)that the disconnection of electricity done in the manner by you is malicious--a wrongful act done (intentionally) without a just cause to the detriment of the tenant-- and against law; 2. You have thereby committed an offence (cutting of supply of energy intentionally) punishable under section 40 of Electricity Act, 1910 and within my cognizance. 3. Now, therefore, notice is hereby given to you that in exercise of powers conferred on me under section 190(1) of Criminal Procedure Code, I have taken, cognizance of the above-mentioned offence committed by you and order you to appear before this Court on 15th June, 1986, at 10 a.m. For further proceedings, failing which action shall be taken against you according to law. 4. I further order that pending decision of this case by this Court, the energy supply of Flats Nos. 1 and 3 of Baloch Palza at Plot No.SC/38, Block 'M' North Nazimabad, Karachi be restored forthwith by K.E.S.C. (North Nazimabad Zone) from the meter free from all encumbrances. ' Given under my hand and seal of the Court this 7th day of June, 1986. (Sd.) (Abdur Raheem Jan) First Class Special Magistrate K.E.S.C." ' On that day, the landlord appeared along with his counsel and moved an application, praying to vacate the order dated 7-5-1986. After notice to the other side, the said application was heard and rejected by the learned Special Magistrate on 30-12-1986. The landlord on rejection of his application, as aforesaid, filed Revision Application No. 7 of 1987 against the order, dated 30-12- 1986, in the Court of 4th Additional Sessions Judge (West) Karachi, which was allowed by his order, dated 18-10-1987. Thereupon, both the Corporation and the tenant have filed separate applications for quashment of the impugned order under section 561-A of the Criminal Procedure Code in this Court, which are disposed of by this common judgment. 3. We have heard Mr. Iqbal Qureshi and Mr. Qazi Khalid Ali, learned counsel for both the applicants, and Mr. Syed Arif Ali Shah, learned counsel for respondents Nos. 2 and 5 (the landlords) in both the applications. We have also heard Mr. Abdul Ghafoor Mangi, AA.-G. Who appeared on behalf of the State on Court notice. 4. Mr. Iqbal Qureshi, learned counsel for the applicant/tenant, who was supported by Mr. Qazi Khalid Ali, learned counsel for the applicant (Corporation). Submitted, as their main contention, that the Court of Special Magistrate is situate at Pakistan Employees Cooperative Housing Society, Karachi, which falls within the jurisdiction of District East, Karachi, and, therefore, the revision application against the order, dated 30th December, 1986 should have been heard by the Sessions Judge, East, Karachi. In the said circumstance, the Sessions Judge, West, Karachi had no jurisdiction in the matter under section 435, Cr.P.C., and thus he has acted illegally and without jurisdiction and the order dated 18-10-1987 passed by him is liable to be quashed.
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5. In support, the learned counsel placed their reliance on the case of Valia Ambu Podus al and others v. Emperor I L R 1907 Vol. 3C (Madras Series) 137 and the case of Sohri Lal v. The State AIR (39) 1952 Al 193. (i) In the first case I L R 1907 Vol. 30 (Madras Series) 137, it was held that appeal from 1st Class Magistrate lies to the Sessions Court, within whose jurisdiction the Court of the Magistrate ordinarily sits. (ii) In the second case AIR 1952 All. 193 the case reported in the I L R 1907 Vol. 30 Mad. 137 was approved and it was held that where a Magistrate of the First Class is authorised to try offences committed in any part of the Province, appeal from the Magistrate's judgment lies to the Court of Session within whose jurisdiction the headquarters of the Magistrate are ordinarily situate, whether the offence was committed within such local limits or not. 6. Mr. Abdul Ghafoor Mangi, learned A.A.-G. Placed his reliance on the case of Lalta Prasad Saxena v. State 1952 Criminal Law Journal 199. In this case the expression 'inferior criminal Court situate within the local limits' with reference to section 435, Cr.P.C. Was considered and it was observed that the expression 'inferior criminal Court situate within the local limits of its jurisdiction' in section 435 means an inferior Court exercising jurisdiction within the local limits of its or his jurisdiction. It was further observed that the Code of Criminal Procedure does not provide for the location of the Courts of Magistrates and does not authorise anyone to order such location. A Special Magistrate appointed under section 14 of Cr.P.C. Can hold Court anywhere within his jurisdiction. He cannot, however, be ordered by anyone to hold his Court at any particular place, as no such power is given to anyone under section 14 or any other section of the Code of Criminal Procedure. But if such a Magistrate has jurisdiction over two areas, one of which is within the jurisdiction of one Sessions Court and the other within the jurisdiction of another Sessions Court, his orders will be appealable to that Sessions Judge who has territorial jurisdiction over that particular case. The appellate forum cannot be on the basis of the location of the Magistrate's Court. The case reported as Valika v. Emperor I L R 30 Mad. 137 as relied on by the appellant's counsel, was dissented. 7. On the other hand, Mr. Arif Ali Shah, learned counsel for the respondents submitted that at the time when the offence was committed the whole of Karachi was one District and subsequently it was divided into three Districts, East, West and South, and so the District West of Karachi had the jurisdiction, where the alleged offence was committed. Subsequent division of the District will not affect the jurisdiction. Reliance is placed on the case of (i) Emperor v. Sayeruddin Pramanik AIR 1939 Cal. 159 and (ii) the case of Trikamji Parmanandji v. Emperor AIR 1933 Nag. 33. (i) In the first case, AIR 1939 Cal. 159 it was held that where a Magistrate takes cognizance of an offence committed within the local limits of his jurisdiction and after enquiry commits the accused to Sessions the fact that the locality, in which the offence was committed, is subsequently transferred to another district does not oust the jurisdiction of the Magistrate and render the commitment invalid and the Sessions Judge also is not deprived of the jurisdiction to dispose of the case. (ii) In the second case, AIR 1933 Nag. 33, it was observed that in determining whether a particular Magistrate has jurisdiction to try an offence about which a complaint is laid before him the Courts have to be guided entirely by the provisions of the Criminal Procedure Code. Under section 179 the consequences need not be part and parcel of the act committed. 8. To appreciate the arguments it seems necessary to reproduce section 435(1), Cr.P.C. Which reads as under:- ' Section 435(1).-- The High Court or any Sessions Judge or Magistrate empowered by the Provincial Government in this behalf, may call for and examine the records of any proceeding before any infeior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of
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satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record." (underlined by us). ' Explanation:- "All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 437." ' In this context it is also necessary to reproduce section 408, Cr.P.C. The relevant portion is as under:- "Section 408.-- Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate of the First Class, may appeal to the Court of Session." ' It is noticeable, that words 'situate within the local limit of its or his jurisdiction' used in section 435, Cr.P.C. Are not used in section 408, Cr.P.C. 9. We may add that besides the two cases cited by the learned counsel for the applicants the phrase 'situate within its jurisdiction' came up for consideration before a learned Single Judge of Madras High Court in the case of Shanmugam Chettey v. Pennappa Mudaly and others reported in 26 Madras page 137. In that case sanction was accorded by the Second Class Magistrate in the Sessions Division of South Arcot for the prosecution of various charges. Charge was framed against 'A' in the Court of Second Class Magistrate in the Sessions Division of Chingleput. The order of the learned Sessions Judge South Arcot revising the sanction and staying the proceedings, was declared by the High Court to be ultra vires. This question was further considered by a Division Bench of Madras High Court in the case of Valia Ambu Poduval and others v. Emperor reported in 30 Madras page 137. It was held by the Division Bench, 'that the word `situate' in section 435 of Criminal Procedure Code refers to the place where the inferior Courts mentioned therein ordinarily sit. The principle laid down in section 435, Cr.P.C. In regard to provisional powers, must, in the absence of any indication to the contrary in the Code, be followed in the case of appeals under section 408." It was further held, 'that the Court of Session to which the appeals lie from the Magistrate First Class under section 408, Cr.P.C. Is the Court of Session within the local limit of whose jurisdiction the Court of such Magistrate ordinarily sits, whether the offence is committed within such local limits or not". This view was followed by a learned Single Judge of Lucknow Bench of Allahabad High Court in case of Shori Lal v. The State reported in AIR (39) 1952 All. 193, as already referred. It was held 'that in absence of any statutory provision in Crimial Procedure Code the principle governing territorial jurisdiction of the Sessions Court in regard to its provisional jurisdiction must be followed in regard to the appellate jurisdiction. It was further held 'where a Magistrate of First Class is authorized to try the offence committed in any part of province, appeal from the Magistrate's judgment lies to the Court of Session within whose jurisdiction the Headquarters of the Magistrate are ordinarily situate, whether the offence was committed within such local limit or not'. However, in another case of Allahabad High Court 1952 Cr. L J 199, as referred to above, a different view has been taken. According to it the expression 'situate within the local limits' refers to the area over which the inferior Court exercises its jurisdiction. 10. In the instant case the learned Special Magistrate has jurisdiction to try the electricity cases in all the Districts of Karachi, but his office is admittedly situated within the local limits of District Judge (East), Karachi, originally constituted as one judicial district, which was sub-divided in 1985 in three judicial districts viz. East, West and South and from July, 1988 has further been subdivided in four judicial districts, viz. East, West, South and Central.
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11. To resolve the difficulty, we may refer to the provisions of section 177, Cr.P.C. Which is reproduced as under:- "Section 177.-- Every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed." ' We may also refer to section 531, which reads as under:- Section 531.-- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. 12. In the case of Sar Khan v. The State and another PLD 1967 Pesh. 314, on the question of Court's jurisdiction to try a person for an offence, the petitioner alongwith others was charged under section 307, P.P.C. For having attempted at the life of Taweez Khan Shilmani in Landikotal Serai, situated in Tribal Area of Khyber Agency. He was tried at Peshawar under the Frontier Crimes Regulation and was convicted under section 307, P.P.C./11, F.C.R. And sentenced to undergo six years' R.I. And to pay a fine of Rs.1,500 or in default to suffer one year's further R.I. The petitioner questioned his conviction and sentence in the High Court on the ground, inter alia, of territorial jurisdiction. A learned Single Judge of the Peshawar High Court dismissed the petition in limine. The case was taken to the Supreme Court and then the case was remitted to Peshawar High Court to look into the propriety and legality of the proceedings conducted at Peshawar by the Magistrate who was otherwise competent to try the case in Landikotal. The learned Judges of the Division Bench of the Peshawar High Court observed that:- "It was a general principle of law that all crime is local. In other words, the jurisdiction to try a person for an offence depends upon the crime having been committed within the area of such jurisdiction. When the Magistrate had the jurisdiction to try the case at Landikotal, the mere fact that the trial was held by him at Peshawar does not by itself divest him of that jurisdiction, unless the accused is prejudiced in his trial, or it has occasioned failure of justice. Section 531 of the Code of Criminal Procedure provides that the decision of a Court not having territorial jurisdiction is to be set aside only if it appears that the holding of proceedings in a wrong Court had in fact occasioned a failure of justice." ' Reliance was placed on the following observations on the case of Hari Das Mundhra v. The State AIR 1959 All. 82 which read as under:-- "Under section 177 it is the Court within whose jurisdiction an offence is committed that can try but where that Court will sit has not been mentioned therein, and, therefore, if a Magistrate has been invested with the power to try cases in the local area where the offence has been committed he could try the case irrespective of the place of his sitting. Section 177 has reference to the Court and not to the place of sittings." ' It was further observed by the learned Judges of the Division Bench that:- "It is true that the heading of section 177, Cr.P.C. Deals with the `ordinary' place of inquiry and trial but the section itself does not say so, `every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction an offence is committed that can try, but where that Court will sit has not been mentioned therein and, therefore, if a Magistrate has been invested with the power to try cases in the local area where the offence has been committed he could try the case irrespective of the place of his sitting. Section 177 has reference to the Court and not the place of sittings." ' Repelling the contention raised by the learned counsel that Certificate by the Political Agent had not been issued for the trial of the petitioner it was observed, with reference to section 177, Cr.P.C. That:-
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"The offence was committed in tribal territory. The petitioner also belongs to that area within the jurisdiction of the Magistrate, whose order is impugned. The argument to insist on the certificate by the Political Agent is, therefore, misconceived. We have examined the record of the case. We are satisfied that there has been no irregularity in the trial of the petitioner. We do not find any flaw in the conviction and detention in prison of the petitioner. The petition on these grounds fails and is dismissed." 13. In the case of Abdullah v. Raja Muhammad Hashim and another PLD 1%2 (W.P.) Kar. 793 the respondent filed a complaint under section 409, P.P.C. Against the applicant in the Court of A.C.M. After holding the preliminary inquiry the A.C.M. Took cognizance of the offence under section 408, P.P.C. And issued a bailable warrant against the applicant. The applicant came in revision against the order of issue of process against him, and inter alia raised the contention that the Karachi Court had no jurisdiction. The objection as to the territorial jurisdiction was based on the allegation made in the complaint itself, which disclosed that the goods were sent to the accused-applicant from Karachi and Multan. The objection was thus repelled and it was observed that:- "I am unable to restrict the application of section 531, Cr.P.C. As is contemplated under the Calcutta ruling quoted above. If section 531, Cr.P.C. Applies to cases in original Courts, and I have already said that it does, the interpretation put on the section by the Calcutta High Courts will make the section infructuous and useless for the purposes of its application to the original Courts. The well- known principle of law is that meaning and effect should, as far as possible, be given to the words of an enactment so as not to make them superfluous." The above two cases, particularly in the Peshawar case, contain a valuable observation as to the jurisdictional relationship of 'crime and the Court' that if the Court is invested with the power to try an offence in the local area, it will try the offence committed in that area, whether the Court is situate in that area or not. 14. The case, perhaps, being of first impression in Pakistan, requires deeper study. Under the Code of 1861, the High Court could call for the record of the criminal proceedings of any Court within its jurisdiction (section 404), while the Court of Session and the District Magistrate could call for the record only of a Court immediately sub-ordinate to them. It was held that a subordinate Magistrate was not immediately subordinate to the Sessions Judge and that the latter could not call for the records of the proceedings held by the former. ('69) 6 Born H C R (Cr.) 33(35), Reg v. Girdhar Dharmdas. It was also held that the words 'immediately subordinate' did not refer to the judicial powers of the Magistrate and that all Magistrates in the district were immediately subordinate to the District Magistrate. ('67) 7 South W R Cr. Cir. 1(2), Criminal Circular No.2 of 1867, 15. Under the Code of 1872, the High Court as well as the Court of Session or the District Magistrate could call for the records of the proceedings of all Courts subordinate to such Court or Magistrate. 16. The word 'inferior' was substituted in the Code of 1882 for the word `subordinate'. The former is wider than the latter. Being 'subordinate' is necessarily being 'inferior'. A Court statutorily incompetent to hold or exercise equal powers with another is also 'inferior' to the latter even though it is not `subordinate' to it. There may be inferiority without subordination. ('85) 9 Bom 100(103), Queen-Empress v. Pirya Gopal. 17. To resolve the difficulty it seems pertinent to refer to the relevant provisions of the Code of Criminal Procedure, 1898, which is a complete code for inquiry and trial of the offences under the Pakistan Penal Code, 1860, and, if made applicable by special enactment, the offences committed under other special statutes. Chapter II of the Code deals with the constitution and power of trial Courts and Offices. Section 7 provides for the existence of Sessions divisions and districts in a province. A Sessions division must consist of one or more districts. Section 8 provides for the division of a district into sub-divisions. Section 9 provides the establishment of a Court of Session for every sessions division and for the appointment of a Judge of such Court. Subsection (2) of
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section 9 empowers the State Government, by general or special order in the Official Gazette to direct at what place or places the Court of Sessions shall hold its sittings. Subsection (3) empowers the Provincial Government to appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. Subsection (4) provides for appointing a Sessions Judge of one Sessions division as an Additional Sessions Judge of another Sessions division and also for the Government to direct as to where he was to sit for the disposal of cases in either division. Section 10 deals with the appointment of a District Magistrate in every district and also with the appointment of any Additional District Magistrate who by virtue of subsection (3) is to be subordinate to the District Magistrate for the purpose of section 192(1), 407(2) and 528, subsections (2) and (3). Section 12 deals with the appointment of other Magistrates in any district and empowers the State Government or the District Magistrate, subject to the control of the State Government, to define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code. Subsection (2) provides that if no such local area be defined such Magistrates will have jurisdiction throughout the district to which they are appointed. Section 13 deals with the appointment of sub-divisional Magistrate in charge of a sub-division. Section 14(1) and (2), empower the Provincial Government to confer upon any person or persons all or any of the powers conferred or conferrable by or under this…
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