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Criminal Miscellaneous Application No. 1461 of 1985, heard on 17th April, 1986.
---Ss. 561-A, 439 a 249-A--Penal Code (XLV of 1860), S. 494/120-B- Muslim Family Laws Ordinance (VIII of 1961), S.6(5)(b)--Quashing of proceedings--Complaint entertained by Additional City Magistrate who after taking cognizance issued process--Accused not filing any application under S.249-A, Criminal Procedure Code, and on contrary filed revision application before Sessions Court--Court of Sessions, held, was not competent to pass such orders which could amount to quashing of entire proceedings--Court of Sessions, in exercise of revisional jurisdiction, could only set aside order--Power to quash proceedings only vested in High Court as provided in S.561-A, Criminal Procedure Code.
---S. 561-A--Quashing of proceedings--Applications for quashing proceedings are entertained by High Court when aggrieved person in first instance approaches trial Court under S.249-A or S.265-K, Criminal Procedure Code, and when no conviction is likely to be recorded Power of acquittal with trial Court and High Court being co-extensive, Trial Court has to be approached first.
Amir Ahmad Khan for Petitioner.
Shamdas B. Chaghani for Respondents Nos. 1 to 5.
A. Ghafoor Mangi, A.A.-G. for the State.
Date of hearing: 17th April, 1986.
This is an Application under section 561-A, Cr.P.C. filed against the order, dated 15-10-1985 of 1st Additional District and Sessions Judge (East), Karachi.
The facts are that one Piar Muhammad filed direct complaint under section 494/120-B, P.P.C. read with section 6(5)(b) of the Muslim Family Laws Ordinance. The process was issued by A.C.M. IV (West), Karachi. The respondent filed revision application before the learned Sessions Judge. The case was transferred to 1st Additional Sessions Judge (East), Karachi, who accepted the revision and held that cognizance taken by the Magistrate under section 494, P.P. C. appears to be illegal and he set aside the order by which process was issued.
I have heard Mr. Amir Ahmed Khan for the applicant Mr. Shamdas for the private respondents, and Mr. Abdul Ghafoor Mangi, A.A.-G. for the State.
The important legal point involved in this revision is whether learned 1st Additional Sessions Judge in exercise of revisional jurisdiction can set aside the process order of the Additional City Magistrate which amounts to quashment of the entire proceeding. The complaint was entertained by the Additional City Magistrate, and after taking cognizance A issued the process. The respondents did not file any application under section 249-A, Cr.P.C. On the contrary they filed revision application before the learned Sessions Judge. In my view, the Sessions Judge in exercise of revisional jurisdiction can only set aside the order but he is not competent to pass such order which amounts to quashment of entire proceedings. This power only vest in High Court as provided under section 561-A, Cr.P.C. The quashment applications are entertained by High Court when aggrieved person in the first instance approach the trial Court under section 249-A, Cr.P.C. or 265-K, Cr.P.C. as the case may be, when no conviction is likely to be awarded. It has been held from time to time that power of acquittal to the trial Court g and High Court are co-extensive, therefore, trial Court is to be approached first. In the present case that ladder is also missing. The order of the learned Additional Sessions Judge terminating the entire proceeding is without jurisdiction. Accordingly, it is set aside.
The trial Court to proceed with the case and decide on merits. However, the respondent can seek proper legal remedy according to law at any stage if so advised.
M.Y.H. ---- Petition allowed.
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