1969 P Cr (PLP)

S. A. Latif for the Opposite‑Parties Nos. 2 and 4. This application is directed against an order of Mr. M. N. Islam, Magistrate, 1st Class, Bagerhat discharging the accused opposite‑parties under section 209 of the Code of Criminal Procedure. 2. The case was started on a petition of complaint by one Muhammad Ali Howlader under sections 436, 148, 379, 343, 325, 330 read with section 114 of the Pakistan Penal Code. The accused included some police officers besides others. It was complained that a but of the present petitioner who was cited as a witness in the case was looted and set fire to. On 19‑6‑67 the complainant filed a petition to the effect that he had compromised the matter out of Court and his witnesses would not bear witness in his case. He accordingly prayed for withdrawal of the case. The learned Magistrate passed the following order :‑‑ "The case is taken up on petition. The complainant files a petition stating that he does not like to proceed with the case. If he does not like to proceed it will not be expedient to retain the case pending as nothing helpful will be available from him or his witnesses during trial. Further I am constrained to believe that the allegations are groundless and as such he is not willing to proceed further. Accused persons are therefore discharged under section 209, Cr. P. C." Subsection (2) of section 209 of the Code of Criminal Procedure reads thus :‑ "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." Section 208 of the Code provides for hearing the complainant and taking all such evidence as may be produced in support of the prosecution or in behalf of the accused. Under subsection (1) of section 209 when the evidence referred to in section 208 leas been taken, and the accused has been examined, the Magistrate shall, if he finds that there are not sufficient grounds for committing the accused persons for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate. Then follows subsection (2) which has been quoted above. 3. Mr. Md. Fazlul Karim has cited the case of A. B. M. Enayet Hossain v. Sekander Molla and others (14 D L R 270) in which Sattar, J. held that where the offence is cognizable and non‑compoundable and triable by warrant procedure, the order of discharge (under section 253 (2) of the Code of Criminal Procedure) which does not indicate that the Magistrate came to the conclusion that the case was false and further based such a conclusion merely on the statement of the complainant and without examining other witnesses of the occurrence would be not justifiable. After taking cognizance of such case the discharge of the accused on the ground that the complainant did not want to proceed with the case is not warranted by law. Withdrawal of such a case can only be effected at the instance of the Public Prosecutor under section 494 of the Code. 4. That was a case triable under the warrant procedure unlike the present one which is exclusively triable by the Sessions Court. Subsection (2) of section 209 empowers the Magistrate to discharge the accused at any stage of the case, if, for reasons to be recorded by the Magistrate, he considers the charge to be groundless. There is, however, one difference in this case and it is this that here there was a judicial inquiry in which 11 witnesses were examined for the prosecution and it was on the report of such inquiry, that the accused‑opposite parties were summoned. Besides, the present petitioner was not the complainant but was cited as a witness and the allegation made by the complainant was that the dwelling but of the petitioner was looted and set on fire. The petitioner is thus vitally interested in the case and the complainant Mohammad Ali Howlader had no right to pray for withdrawal of the case behind the back of the petitioner. It is not correct to say that because the complainant Mohammad Ali Howlader did not want to proceed with the case witnesses would not be available to support the prosecution case. That observation of the learned Magistrate is not warranted in the circumstances of the case. It is true that the Magistrate recorded reasons for discharging the accused. Mere recording of reasons is not sufficient for an order of discharge. The High Court in revisions will consider the soundness or otherwise of the reasons. The reason stated by the Magistrate in the present case is based entirely on the fact that the complainant filed an application for withdrawal of the case stating that witnesses would not be available to prove his allegations. This is no sound reason. The Magistrate stated in his order that he was constrained to believe that the charge was groundless, but he gave no reason for such belief. Mere observation by the Magistrate that he believed that the charge is groundless without supporting the belief by reasons does not justify an order of discharge of the accused under section 209 (2) of the Criminal Procedure Code. 5. In the result the rule is made absolute and it is ordered that there shall be further enquiry in the case. The records be sent down immediately. Rule made absolute.