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Criminal Revision No. 297 of 1,960, decided on 10th August, 1960.
, S. 253 (2)‑Magis trate discharging some accused‑May postpone recording reasons for discharge till writing of judgment at end of trial.
Where a number of persons are being tried for an offence it is competent to a Magistrate to discharge some of them and to postpone giving the reasons for the order of discharge till he makes a final order as regards the rest of the accused.
In re Govindraj and others A I R 1938 Mad. 396 rel.
S. 436‑Further inquiry into case of person discharged‑When may be ordered.
When an order of discharge passed under subsection (2) of section 253 of the Criminal Procedure Code, 1898 is to be set aside, it is not enough to say that the Magistrate had not examined all the prosecution witnesses. The Court, which is asked to set aside such an order of discharge, can do so only if after examining the reasons for the discharge the Court is satisfied that they were not sound, or that the finding of the Magistrate that the charge was groundless, could not be sustained on the material already brought on the record, or because the finding was perverse or foolish.
Sheikh Muhammad Amin v. The Superintendent of Police, Jhang P L D 1960 Lah. 684 rel.
Sayed Muhammad Zafar for Petitioners.
Ijaz Ali O. S. D., and Sh. Muhammad Shafi for Respondent.
Dates of hearing : 25tb, 26th, and 27th July, 1960 ; 1st 2nd and 3rd August, 1960.
This revision petition under section 439, Criminal Procedure Code has been filed by Mst. Saeeda Begum accused and her daughters Miss Razia Begum and Miss Hamida Begum accused, for the quashing of the order, dated the 31st of March 1960, of Mr. M. N. Rizvi, Magistrate 1st Class with section 30 powers, Lahore, and the order, dated the 5th of March 1960, of the Additional District Magistrate, Lahore.
2. It may be mentioned that Muhammad Ahmad accused is the husband of Mst. Parveen and a son of Mst. Saeeda Begum petitioner, and Akhtar Masud Ahmad accused is the brother of Muhammad Ahmad and a son of Mst. Saeeda Begum petitioner. Miss Razia Begum and Miss Hamida Begum petitioners are the daughters of Mst. Saeeda Begum and sisters of Mahmud Ahmad and Akhtar Masud Ahmad.
3. On the 24th of August 1959, Mst. Parveen, the wife of Mahmud Ahmad accused made a report in writing to the police to the effect that her jaw had been fractured on account of the beating given to her by her husband and Akhtar Masud Ahmad on the 17th of August 1959. In this report, the petitioners were described as having lent their support to the alleged assault by oral exhortation and incitement. The challan was, put in the Court of Mr. Muhammad Aslam Sukhera, Magistrate, 1st Class, who, besides recording the evidence of some formal witnesses, recorded the evidence of Mst. Parveen, the injured complainant, Maulana Abul Ala Maududi (P. W. 1), Mr. Enderson (P. W. 4) and Khwaja Ahmad Hassan (P. W. 6) and on the Ist of February 1960 discharged the three petitioners and framed the charge against Mahmud Ahmad and Akhtar Masud Ahmad accused under section 325, P. P. C. A revision petition was filed on behalf of the State before the Additional District Magistrate, Lahore, against the aforesaid order of Mr. Muhammad Adam Sukhera, Magistrate 1st Class, as regards the discharge of the three petitioners. The learned Additional District Magistrate remanded the case for further inquiry to the Court of Mr. M. N. Rizvi, section 30 Magistrate, Lahore, on the ground that the Magistrate who had discharged the petitioners had not given any reasons for their discharge and that he should have examined all the eye‑witnesses and then decided the case on merits. After the case had been so remanded to Mr. M. N. Rizvi, he, without examining any other witness, framed a charge under sections 325/ 149 and 147, P. P. C. against the three petitioners and made an amendment in the charge, so far as Mahmud Ahmad and Akhtar Masud Ahmad were concerned, by adding sections 149 and 147, P. P. C. to it. As already mentioned, the petitioners have filed their revision for the setting aside of both these orders.
4. It is clear from the order, dated the 1st of February 1960, of Mr. Muhammad Aslam Sukhera that he was ordering the discharge of the three petitioners under section 253 (2), Criminal Procedure Code. Section 253 of the Code of Criminal Procedure reads as follows :‑
"(1) If, upon taking all the evidence referred to in section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted would warrant his conviction, the Magistrate shall discharge him.
"(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any, previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
If a Magistrate discharges an accused under section 253 (1), that is to say after examining the complainant (if any) and recording the entire prosecution evidence produced and the examination of the accused (if any) it is not necessary for him to record any reasons for the discharge, but if he discharges the accused under subsection (2) of section 253 of the Criminal Procedure Code, that is to say without recording the entire evidence of the prosecution, he has to record reasons for considering the charge to be ground less against the accused who is being discharged. In the order, dated the 1st of February 1960, Mr. Muhammad Aslam‑Sukhera, the Magistrate, clearly indicated his intention to give the reasons' for discharging the petitioners in his judgment. The contention of the respondents' counsel is that Mr. Muhammad Aslam Sukhera Magistrate had to record his reasons in the very order of discharge itself and was not supposed to defer them till the writing of his judgment at the end of the trial. I do not think that subsection (2) of section 253 makes it obligatory on the Magistrate to record the reasons for discharging the accused in the order of discharge itself. All that the subsection lays down is that the reasons for considering the charge to be groundless against the accused who is being discharged have to be recorded. At all events, in a case like the present, where some of the accused only have been discharged, it would not appear to be necessary that the reasons should have been recorded in the order of discharge itself. In re Govindraj and others (A I R 1938 Mad. 396) it was held as under:‑--
"Where a number of persons are being tried for an offence it is competent‑ to a Magistrate to discharge some of them and to postpone giving the reasons for the order of discharge till he makes a final order as regards the rest of the accused. Because till the charge against the remaining accused is disposed of by a final order, the Magistrate must be deemed to be in seisin of the whole case and so long as he is in charge thereof, he can always give his reasons in regard to the order of discharge. There is nothing in the language of section 253 which precludes him from doing so."
In the course of the aforesaid judgment it is further observed at page 397 :‑-
"It may be that if he omits to give reasons when he passes a final order in the case, the question will arise whether his order would be legal. Of course the language of the section would plainly indicate that a Magistrate should give his reasons at the time he pronounces the order of discharge, and if it is the final order in the case, he is bound to give his reasons. The moment he pronounces the final order, he becomes functus officio and he is no longer in charge of the case, but in a case of this nature, I am inclined to think that he has not become functus officio and it would be open to him to defer his reasons. Assuming that it was obligatory on him to give his reasons before he pronounced the order of discharge, his omission to do so is only an irregularity which can be cured by section 537, Criminal Procedure Code."
5. I am in respectful agreement with the views expressed in the aforesaid judgment. The only ground on which the order of discharge was challenged before the Additional District Magistrate was that the evidence of all the eye‑witnesses had not been recorded and that the reasons of discharge had not been recorded by the Magistrate. In the light of the view expressed above, the Magistrate was competent to discharge the three petitioners without having recorded the entire prosecution evidence, but in that case he had to record his, reasons. In his order of discharge itself he clearly mentioned that he intended to give detailed reasons of the discharge of the petitioners in his judgment. Before that stage arrived, the prosecution went up in revision against the order dated the 1st of February 1960 of the Magistrate under which not only the three petitioners had been discharged, but the other two accused had been charged under section 325, P. P. C. It should seem that the State was entitled to challenge this order of discharge by a revision petition only after the Magistrate had recorded his reasons pursuant to his intention to do so indicated in the order dated the 1st of February 1960. The Additional District Magistrate could set aside the order of discharge and remand the case only if he was satisfied that the reasons for the discharge were unsatisfactory. Since the reasons for the discharge were not before him, there was apparently no occasion for the Additional District Magistrate to interfere in revision in this case. In Sheikh Muhammad Amin v. The Superintendent of Police, Jhang (P L D 1960 Lah. 684), Mr. Justice S. A. Haq observed as follows :‑
"When an order of discharge passed under subsection (2) of section 253 is to be set aside, it is not enough to say that the Magistrate had not examined all the prosecution witnesses. The Court which is asked to set aside such an order of discharge must examine whether the finding of the Magistrate that the charge is groundless cannot be sustained on the material already brought on‑the record and also whether the finding is perverse or foolish. Another consideration is whether it will be in the interests of justice to set aside an order of discharge, keeping in view the gravity of the offence and the time which had elapsed since commission of the offence."
6. The learned Additional District Magistrate in his order has not held that the finding of the Magistrate that the charge was groundless could not be sustained on the material already brought on the record. Nor has he held that the finding is perverse or foolish.
7. The counsel for the petitioners has urged before me that even if all the prosecution witnesses had been examined before the Magistrate passed his order dated the 1st of February 1960, the evidentiary complexion of the prosecution case against the petitioners could not have changed. He points out that in the complaint, which is the basis of the first information report and which was written by Mst. Parveen, the complainant herself, seven days after the actual occurrence, no specific allegation was made against the petitioners that they physically participated in the beating given to her and that the only allegation made against them was that they exhorted or orally supported Muhammad Ahmad and Akhtar Masud Ahmad in the beating given to her. The petitioners' counsel further contends that it is only in her statement in Court that Mst. Parveen started ascribing actual beating to the aforesaid female petitioners and that her near relative Khawaja Ahmad Hassan supported her in this improve ment; and that Maulana Abul Ala Maududi P. W. did not support her in so far as he stated that when he went to the house of the accused along with the father of Mst. Parveen she mentioned the names of Mahmud Ahmad and Akhtar Masud Ahmad as her assailants. The learned counsel for the petitioner urges that the absence of all reference in the statement of Maulana Abul Ala Maududi to the petitioners as having parti cipated in the assault in any manner, shows that immediately after the occurrence Mst. Parveen had no actual basis for mentioning the three petitioners as participants in or abettors of the assault and that they had been mentioned as abettors in the written complaint made by Mst. Parveen to the police as a result of deliberation because this complaint itself had been made seven days after the occurrence. The learned counsel for the petitioners urged that even if all the witnesses had been examined, the following facts would have remained unaltered (1) that the complaint, dated the 24th of August 1959, the basis of the first information report, was made seven days after the occurrence and it did not mention that the three petitioners had physically participated in the assault, (2) that at least one important witness, namely, Maulana Abul Ala Maududi, who gives his evidence regarding what he learnt from Mst. Parveen immediately after the occurrence, does not mention Mst. Parveen ‑as having men tioned to him the three petitioners as either abettors of the assault or as actual assailants. On the basis of the aforesaid features of the case the learned counsel for the petitioners argued that the Magistrate was perfectly justified in thinking that for discharging the petitioners it was not necessary to examine all the prosecution witnesses, as no other additional evidence could have effaced the above‑mentioned aspect of the case. He further urges that actually the aforesaid features of the prosecution case constituted a sound basis for the Magistrate discharging the accused at the stage at which he ordered the petitioners' discharge.
7. But it appears to me that it is unnecessary for me to pronounce any opinion as to whether or not the Magistrate was justified in discharging the accused on account of the aforesaid features of the prosecution case. It is clear to my mind that discharging the petitioners as he was, under section 253 (2) of the Criminal Procedure Code the Magistrate could do so if he was satisfied, for reasons to be recorded by him, that the charge against them was groundless. The Additional District. Magistrate was competent to interfere in revision with such an order only if after examining the reasons for the discharge he was satisfied' that they were not sound, or, as held in P L D 1960 Lah. 684, if he was satisfied that the finding of the Magistrate that the charge was groundless could not be sustained on the material already brought on the record, or because the finding was, perverse or foolish'. In this view of the matter, I am of opinion that neither the order of the Additional District Magistrate, dated the 5th of March 1960, can be sustained nor that of Mr. M. N. Rizvi, dated the 31st of March 1960, which was made in consequence of the unwarranted order of the Additional District Magistrate. The result, therefore, is that both the orders, viz. of the Additional District Magistrate, dated the 5th of March 1960, and of Mr. M. 14. Rizvi, Magistrate, dated the 31st of March 1960, are set aside and the order, dated the 1st of February 1960, of Mr. Muhammad Aslam Sukhera is restored. Since Mr. Muhammad Aslam Sukhera has yet to record the reasons of the discharge of the three petitioners, it is but proper that the case be sent back to him for disposal from the stage at which it was taken over from his Court.
K. B. A. Order accordingly.
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