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Criminal Reference No. 116 of 1960, decided on 5^th December 1960.

Ss. 436 & 494 (a)---- Power to order further inquiry under S. 436‑Extends to case of person discharged under S. 494.

An order of discharge passed on withdrawal of the case by the Public Prosecutor does not amount to an acquittal. There is no difference in law in the case of a person discharged by a Magistrate on a consideration of the evidence tendered against him and of a person discharged at the instance of the Public Prosecutor under section 494 of the Criminal Procedure Code, 1898. Hence the power to order further enquiry conferred by section 436 of the Criminal Procedure Code, 1898 in the case of persons discharged extends to the case of a person discharged under section 494 (a) of the Code.

A I R 1929 Lah. 315 and A I R 1933 Nag. 78 rel.

Muhammad Hayat Junejo for the State.

Nemo for Respondents.

Date of hearing: 5th December 1960.

Mr. Fazl‑i‑Illahi Ansari, Additional Sessions Judge, Jacobabad has made this reference under section 438, Cr. P. C. to this Court for quashment of the order of committal passed against Yousaf, Buxan, Amir Bux and Khan accused by Mr. Amirali Khan Talpur, Sub‑Judge and F. C. M. Jacobabad. The reference has arisen out of the following circumstances Yousaf, Buxan, Amir Bux and Khan were put on trial on 18‑2‑58 in the Court of Sadiqah Khoja, Sub‑Judge and First Class Magistrate, Jacobabad under section 395/397, P. P. C. and 19‑E Arms Act. On 24‑4‑58 the Public Prosecutor, Jacobabad, made an application under section 494, Cr. P. C. to the learned Magistrate for the withdrawal of the case. On 3‑5‑58 the learned Magistrate discharged the accused under section 494‑A, Cr. P. C. Ganwhar who had lodged the F I. R. filed a revision petition under section 435, Cr. P. C., against this order of discharge and the Sessions Judge, Jacobabad, after hearing the parties and accepting the petition ordered further enquiry into the case. Pursuant to this order further enquiry was held by Mir Amirali Khan Talpur, Sub‑Judge and First Class Magistrate, Jacobabad who on 24‑11‑59 committed the aforesaid accused to the Sessions Court for their trial. The case came up for trial before Fazl‑i‑Illahi Ansari, Additional Sessions Judge, Jacobabad, who has, as already mentioned, referred the case to this Court for the commitment order being quashed. He is of the view that the Sessions Judge could not under section 436, Cr. P. C. order further enquiry, as the order of discharge was the result of order permitting withdrawal of the case. The learned Additional Sessions Judge argues that the First Class Magistrate who had committed the case for trial had taken cognizance of the matter on the basis of a bad order.

The learned counsel appearing on behalf of the State before me states that he is unable to support the reference made by the learned Additional Sessions Judge. He has urged that section 494, Cr. P. C. clearly lays down that a Public Prosecutor can, with the consent of the Court, withdraw from the prosecution of any person and that upon such withdrawal if it is made before a charge has been framed (as in the present case) the accused shall be discharged in respect of such offences. The order of the leaned First Class Magistrate, Jacobabad dated 3‑5‑58 is as follows:

"The accused are therefore discharged under section 494 (a), of the Criminal Procedure Code."

It is clear from the language of section 436, Cr. P. C. that a Sessions Judge can order further enquiry into the case of any person accused of any offence who has been discharged. It is clear from the record that no formal charge had yet been framed against the accused when on the application of the Public Prosecutor they were discharged under section 494 (a) of the Cr. P. C. It was not therefore a case where it was necessary that the High Court should have been moved for setting aside the order of discharge and ordering further enquiry. The Sessions Judge was himself competent to make such .an order. In support of the position that the counsel appearing for the State has taken up before me, he has cited A I R 1929 Lah. 315 and A I R 1933 Nag. 78. 1929 Lah. 315 clearly lays down that "the District Magistrate is competent to revise an order of discharge passed on withdrawal of complaint authorised by himself and to direct further enquiry into the case." It has further been observed therein that "An order of discharge passed on withdrawal of the case by the Public Prosecutor does not amount to an acquittal. There is no difference in law in the case of a person discharged by a Magistrate on a consideration of the evidence tendered against him and of a person discharged at the instance of the Public Prosecutor under section 494." 1933 Nag. 78, inter alia, lays down. "The power to order further enquiry conferred by section 436 in the case of persons discharged extends to the case of a person discharged under section 494 also." In view of the clear provision of 494 (a), Cr. P. C. and the above mentioned authorities it appears to me that this reference is uncalled for. It is accordingly returned. The Sessions Judge was perfectly competent to order a further enquiry into the matter and therefore the Magistrate's order of commitment is not illegal.

K. B. A. Reference answered.

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