2009 PLP 1078 (YLR)

KHURSHID ANWAR BHINDER, J.

Through the present constitutional petition, Safdar Hussain petitioner has challenged the legality of the impugned order dated 27-8-2008, passed by the learned Magistrate Section-30, Ferozewala, whereby he discharged respondent No.3.

2. Briefly the facts leading to the filing of this constitutional petition are that petitioner got registered F.I.R. No.564/2006 dated 9-11-2006, under section 395, P.P.C. at Police Station Sharaqpur alleging therein that on 9-11-2006 some unknown persons had committed dacoity in his house while armed with deadly weapons, severely tortured the inmates of the house and took away with them Rs.56,000 gold ornaments weighing 20 tolas and valuable clothes. Thereafter the petitioner nominated respondent No.3 as an accused person along with others and on 19-8-2008, respondent No.3 was arrested. The Investigating Officer obtained the physical remand of respondent No.3 and after the expiry of the period of remand submitted an application dated 27-8-2008 seeking further remand of respondent No.3. Respondent No.3 was produced before the Duty Magistrate section 30, Ferozewala who vide order dated 27-8-2008 discharged respondent No.3, hence the present constitutional petition.

3. Learned counsel for the petitioner submits that the impugned order is without jurisdiction as the Duty Magistrate was not competent to discharge the accused person and the impugned order is violative of section 167, Cr.P.C.

4. The learned Law Officer submits that in view of the provisions of section 167, Cr.P.C. the Duty Magistrate has no jurisdiction to discharge an accused person as he has no jurisdiction to try the case or send it for trial. He could only order the accused to be forwarded to a Magistrate having such jurisdiction.

5. Learned counsel for respondent No.3 has supported the impugned order.

6. I have heard all the learned counsel and have also perused the available record. In the instant case the impugned order was passed by a Duty Magistrate. It is clear from the language of section 167, Cr.P.C. that "if he has no jurisdiction" to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction, meaning thereby that a if a Magistrate has no jurisdiction to try an accused person produced before him for remand, he may authorize the detention but if he considers the detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, as such, the impugned order has been passed by respondent No.1 without jurisdiction and the same is void ab initio.

7. The upshot of the above discussion is that the Duty Magistrate/respondent No.1 was not competent to pass an order of discharge of the accused/respondent No.3 while exercising his powers under section 167, Cr.P.C. Resultantly, this writ petition is accepted and the impugned order .is hereby set aside being illegal, unjustified and untenable. H.B.T./S-27/L Petition accepted.