(CRIMINAL REVISION)

                           SUDAN GOVERNMENT v. MANSOUR EL AGAB & OThERS

                                                            AC-CR-REV-35 1967

Principles

Criminal Procedure-Examination of corn plainant—Code of Criminal Procedure, s. 136—Complamant must be examined on oath when he submits his complaint to the court

         According to Code of Criminal Procedure, s. 136, it is mandatory on the court, when a complaint is submitted; to examine complainant on oath at once and to reduce his complaint and substance of the examination into writing.

Judgment

       Advocate: Mohamed Beshir Abdel Rahman…………….. For accused

        M. E. Mobarak J. October 18, 1967: —On June I, 1967, Abdalla Osman El Nasri submitted petition No. 962/1967 to the Resident Magistrate, Singa, making allegations against Al Mansour El Agab and three other Omdas of the locality that they had committed acts which brought them within the provisions of the Corrupt Practices Prevention Ordinance 1952 (as amended) in respect of the last elections for the Local Government Councils. The petitioner appeared before the said magistrate on June 1, 1967. The magistrate, without taking any statement from him, dismissed the petition on the ground that there was nothing to constitute an offence under the Ordinance. On June 7, 1967, the petitioner applied to the Province Judge, Blue Nile Circuit, against the order of dismissal. On July 3, 1967, the Province Judge saw no reason to intervene and hence this application to us.

       In his application the advocate for the applicant referred to the Corrupt Practices Prevention Ordinance, s. 4 (1). This section was repealed and

a new one substituted for it by 1957 Act No. 18. The advocate alleges that the four accused collected the people in the different Local Council Constituencies (27 in all) and ordered them to elect certain specified persons and this resulted in their success.

      I shall not deal with the points raised by the advocate in his application because there is a more important matter of which no mention was made either by the Resident Magistrate or the Province Judge. This matter is:

“What is the nature of the petition submitted on June 1, 1967, by Abdalla Osman El Nasri to Resident Magistrate, Singa?” This petition, no doubt, is a “complaint” under the Code of Criminal Procedure, s.5 (1) (b), which states:

      “Complaint’ means the allegation made orally or in writing to a magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence, but it does not include a police report.”

The petition submitted to the magistrate answers all the ingredients of a complaint as defined by law. Under the Code of Criminal Procedure, s. 133(I) (d):

       “…any magistrate may take cognisance of any offence ... (d) upon receiving a complaint of facts which constitute the offence.”

       The word “offence” is defined in the Sudan Penal Code, s. 29, which reads:

      “Except where otherwise appears from the context, the word

‘offence’ includes an offence under any law for the time being in

force.”

Under the Code of Criminal Procedure, s.5 (3):

“All words and expressions used herein and defined in the Penal

Code shall have the meaning attributed to them by that Code.”

        The Criminal Procedure Code prescribes a certain procedure which it is mandatory on any magistrate to adopt when a “complaint” is submitted to him. This procedure is to be found in section 136 and the following sections in Chapter XV thereof. The first thing to be done by a magistrate on taking cognisance of an offence on complaint is to examine the complainant at once on oath, reduce the complaint and the substance of the examination to writing and the writing shall be signed or sealed by the complainant if he is able to do so (first part of the Code of Criminal Procedure, s. 136). In this petition the Resident Magistrate failed totally to comply with these provisions. Our Code of Criminal Procedure, s. 136, is based, with certain differences, on the Indian Criminal Procedure Code, s. 200. In his commentary on the Indian Code II, Sohoni, Code of Criminal Procedtire (15th ed. 1961), Wrote:

(a)    “A magistrate taking cognisance of an offence on a complaint is bound to proceed in accordance with the provisions of one or other of the sections contained in Chapter XVI and the first thing he should do is to examine the complainant on oath in accordance with the provisions of section 200 and thereafter decide whether he should issue process against the persons complained against or postpone the issue of process and act under section 202. Where he does neither of these things, and, without examining the complainant, passes an order upon the police to investigate the case, to seize the gaddy and arrest the culprits, the order is illegal” (page 1085):

(b)     (b) “The examination of the complainant signifies that the magistrate ought to interrogate him on the allegations or averments contained in the complaint to test whether they are prima facie true or not” (page 1087); and

(c)    “The examination of a complainant is not a matter of form, and, when a magistrate dismisses a complaint without making such examination himself, the omission is a material one and he does what he had no authority to do under the Code. Where a magistrate before whom a complaint was laid, dismissed the complaint and sanctioned proceedings against the complainant under section 182, I.P.C. without examining the complainant or the witnesses named by him, but only on a comparison of the complaint and the papers connected with a complaint that had previously been made at a police station, it was held that the proceedings were irregular and must be quashed to reopen the inquiry and examine the complainant. Dismissal of complaint without examination will be set aside” (pag1090)

      For the reasons stated above, I think that the order by the Resident Magistrate passed on June I, 1967, dismissing the complaint should be set aside and the petition be returned to him to examine the complainant under the Code of Criminal Procedure, s. 136, and then follow the procedure prescribed by the following sections of Chapter XV of the Code of Criminal Procedure.

              Galal Ali Lutfi J. November 19, 1967: —I agree.

            Abdel Mageed Hassan 1. November 19, 1967: —I agree.

ORDER: M. E. Mobarak J. November 19, 1967: —We set aside the order by the Resident Magistrate passed on June 1, 1967, dismissing the complaint and return the petition to him for examination of the complainant under the Code of Criminal Procedure, s. 136, and then to follow the procedure prescribed by the following sections of Chapter XV of the Code of Criminal Procedure.