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Case No. 72. of 1965 (BWP), decided on 13th May 1965.

S. 203 read with S. 436‑Magistrate summoning some accused and discharging rest by order passed under S. 203‑Sessions Judge, in revision can only direct holding of further inquiry Section 436 does not empower Sessions Judge to direct that all accused be summoned.

, S. 203‑"Inquiry" and "trial"‑Distinction‑ Complaint dismissed under S. 203, Criminal Procedure Code, is still at inquiry stage‑Trial begins when accused is charged and called upon to answer.

A. R. Tayyab for Petitioner.

Respondent No. 2 in person.

M. M. Bhatti for the State.

The respondent Shaukat Ali filed a complaint in the Court of Mr. Zia‑ul‑Hassan Qureshi, a Magistrate of the First Class at Bahawalpur, against the petitioner Altaf Hussain and five others alleging the commission of offences under sections 394, 323 and 506, P. P. C. By his order dated the 29th of May 1964 the learned Magistrate summoned only two of the six accused persons, namely, Ashfaq and Ishaq, and that to under sections 323 and 506, P. P. C., holding that no case was at all made out under section 394, P. P. C. Aggrieved by this order the complainant Shaukat Ali went up in revision to the learned Sessions Judge of Bahawalpur and the latter, by his order dated the 26th of September 1964, came to the conclusion that the reasons given by the learned Magistrate for not summoning the remaining accused persons and for also ruling out section 394, P. P. C. were not correct as they proceeded on ignoring of material pieces of evidence produced by the complainant. On this view of the matter the learned Sessions Judge passed the following order:‑‑----

"I accept the revision petition, set aside the order in question and direct the learned Magistrate, through the District Magistrate, to summon all the accused to stand their trial for the offences with which they have been charged by the com plainant."

2. In the present revision petition two main points have been urged;

(a) That acting under section 436, Cr. P. C. the only power which could be exercised by the learned Sessions Judge was to order further inquiry, and not to direct the summoning of all the accused persons, and

(b) that, in any case, even if it be assumed that the learned Sessions Judge had the jurisdiction to direct the Magistrate to summon the accused persons, he has erred in issuing a direction that the accused persons should stand their trial for offences charged by the complainant, as the case had not yet reached the trial stage and it was only an inquiry which was being held by the Magistrate.

3. There is substance in both these contentions. It is clear that the learned Magistrate was acting under section 203, Cr. P. C. when he produced to dismiss the complaint in its entirety against four of the persons accused by the complainant and under section 394, P. P. C., against the remaining two, namely, Ashfaq and Ishaq. Such being the case, the learned Additional Sessions Judge could act in revision only under the provisions of section 436, Cr. P. C., which may be usefully reproduced here:‑---

"On examining any record under section 435 or otherwise the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204, or into the case of any person accused of an offence who has been discharged; provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had no opportunity of showing cause why such direction should not be made."

4. It will be seen that the power conferred on the learned Sessions Judge by section 436, Cr. P. C. is to direct the making of further inquiry into any complaint which has been dismissed under section 203. The section does not confer any power on the Sessions Judge to direct that the accused persons should be, summoned. It, therefore, follows that the learned Sessions Judge acted without jurisdiction in directing the Magistrate to summon all the accused persons. The direction should only have been to make further inquiry into the complaint which had been dismissed under section 203, Cr, P, C.

5. As regards the second contention that the learned Sessions Judge had no jurisdiction to order that the accused should be summoned to stand their trial for the offences with which they have been charged by the complainant, it is clear that the direction given by the learned Sessions Judge proceeds on a misconception as to the true meaning of the term "trial" as used in the Criminal Procedure Code. The Criminal Procedure Code distinguishes between two stages in a warrant case, namely, the inquiry and trial. When a complaint is dismissed under section 203, Cr. P. C. it is yet at the inquiry stage and the trial has not commenced. Similarly, when a person is discharged, that again is an eventuality relating to the inquiry stage. It is well established that "trial begins when the accused is charged and called on to answer, and then the question before the Court is whether the accused is to be acquitted or convicted, and not whether the complaint is to be dismissed or the accused discharged". The direction given by the learned Sessions Judge was, therefore, erroneous in law.

6. For the following reasons, I would accept this revision petition, set aside the order of the learned Sessions Judge and instead substitute an order that the learned Magistrate shall hold further inquiry into the complaint filed by the respondent Shaukat Ali with a view to determining whether the two accused Ishaq and Ashfaq should also be summoned under section 394, P . P. C., and also to determine whether the remaining four accused should be summoned at all under any of the sections mentioned in the complaint. The case shall go back to the Magistrate concerned with these directions.

S. A. H. Order accordingly.

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