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----Ss. 435 and 436 Revision‑Powers should be exercised judiciously and not capriciously‑Order of discharge should not be set aside on vague grounds.

Powers of revision vesting in the Courts contained in sections 435 and 436, Cr. P. C. are extraordinary powers and as such should be exercised sparingly and with due caution.

The words of sections 435 and 436 do not empower a Court of revision to exercise its powers without good grounds. In other word revisionary powers should be exercised judiciously and not capriciously.

Where the order requiring further inquiry is far too vague and general it is not in accordance with law.

Emperor v. Kiru 10 P R 1911 ; Dan v. Emperor A I R 1921 Lab. 914 and Dost Muhammad v. Asa Ram A I R 1922 Lab. 409 ref.

Fida Husain for Petitioner.

‑This is a petition for revision filed by Mr. Fida Husain Advocate on behalf of one Ditto. It is directed against the order of the Sessions Judge, Bahawalpur who setting aside the order of discharge made by Mr. Mustafa Nawaz Khan, Magistrate 1st Class, Bahawalpur in favour of the petitioner and six others ordered further enquiry in the case.

The petitioner and six others were sent up by Musafar‑Khans Police for trial of an offence under section 363, P. P. C. for kidnapping Mst. Bakhtan from the lawful guardianship of her parents on the night between 8th and 9th of July 1951. After recording all the evidence produced by the police the Magistrate discharged the accused on the grounds that F. I. R. in the case was lodged two days after the occurrence, that the evidence produced by‑the prosecution was discrepant, that the identification of the accused at the time of occurrence was not satisfactorily established and finally that the evidence relating to the presence of the foot‑prints of the accused on the spot and the following of tracks to the house of Ditto accused was contradicted by Karim Bakhsh Nambardar P. W. who was alleged to have been one of the track‑party. The Magistrate also pointed out that Karim Nambardar P. W. also denied the allegation that the petitioner had confessed his guilt to him. In fact this witness definitely stated in the Magistrate's Court that when Ghulam Hussain complainant informed him of the occurrence on the morning of 9th he did not mention the names of any of the accused as having committed the offence. On going through the file I find that defects pointed out by the Magistrate do exist.

Conscious of the weakness of their case the police accepted the Magistrate's order but Ghulam Hussain complainant filed a revision against it in the Court of Sessions Judge, Bahawalpur who called up the record of the case and passed the order now under revision.

I have carefully perused the order of the learned Sessions Judge and noticed that at its very best it is vague. For instance he admits that the prosecution evidence is discrepant but says that these discrepancies are not fatal to it. This assertion should have been followed by a discussion of the discrepancies which has not been done. Proceeding further he says that the Magistrate did not distinguish between important and unimportant discre pancies. Here again we are not told what discrepancies according to the Sessions Judge are important and what are not important. Similarly he also observes that although the Magistrate has attached considerable importance to the evidence of Karim Bakhsh Numbardar yet the Numbardar himself does not say that the case was without foundation and that when he the Numbardar was informed of the occurrence and went to the spot he felt satisfied that an offence has been committed. This is not the correct view of the position. An offence may or may not have been committed. What the Magistrate had to see was whether it had been brought home to the accused in the case. Finally the learned Sessions Judge makes a general observation that the officer‑in‑ charge of the prosecution did not perform his duty properly and in the same sentence he observes that the Magistrate also failed to have a correct idea of his duty. I need hardly say that such vague and general observation do not afford sufficient jurisdiction for upsetting an order of discharge passed by a Magistrate.

It appears to me that the learned Sessions Judge as also some of the other Courts below invested with powers of revision have no proper conception of the import and object of these powers. At the very outset I wish to point out that powers of revision vesting in the Courts contained in sections 435 and 436, Cr. P. C. are extraordinary powers and as such should be exercised sparingly and with due caution. The words "as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court" occurring in section 435, Cr. P. C. are import ant and should never be lost sight of. No doubt at first sight these words appear to be very wide and general. But this is not the care. In a whole series of decisions of almost all tae High Courts these' words have been interpreted as not a empowering a Court of revision to exercise its powers without good grounds. In other word revisionary powers should be exercised judiciously and not capriciously.

The view consistently held by the Punjab Chief Court and the Lahore High Court on the point merits attention by the Courts below.

In a full Bench Ruling Emperor v. Kiru reported as (10 P R 1911) Mr. Justice Kensington who delivered the judgment laid down that :‑

" Generally speaking further enquiry after discharge is improper unless the order of discharge was perverse or foolish or was based upon a record of evidence which was obviously incomplete."

In another ruling Dani v. Emperor (A I R 1921 Lah. 214) it is laid down that :‑‑

" The mere fact that the District Magistrate places a different value on the evidence from that placed by the trial Court is not a good ground for directing further enquiry under this section."

Similarly in Dost Muhammad v. Asa Ram (A I R 1922 Lah. 409) it was held that:‑

The opinion of the Sessions Judge that he was unable to accept the reasons given by the Magistrate for holding the prosecution case to be entirely groundless was not a good ground for interference with the order of the Magistrate."

Similar views have been expressed by almost all the other High Courts as far as the exercise of power of revision by Sessions Judges and the District Magistrates is concerned. The reason for this view is obvious. An order of discharge once passed assumes a serious importance and to upset it with out sufficient reasons will amount to encouraging infructuous litigation which should be avoided. This should not however be taken to mean that the Sessions Judges or the District Magistrates should not at all exercise powers vesting in them under sections 435 and 436, Cr. P. C. What is needed is that when they decide to do so they should give detailed reasons for it and such reasons should be in accordance with the provisions contained in section 435 of the Cr. P. C.

I have already remarked above that the order of the learned Sessions Judge in the present case is far too general and vague and therefore not in accordance with law. For this reason, I cannot persuade myself to uphold it and there fore setting it aside and up-holding the order of Magistrate direct that Ditto petitioner and his co‑accused to the case will stand discharged.

A. H. Petition accepted.

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