1981 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 561-A read with Azad Kashmir Government Control of -Goondas Ordinance, 1959. S. 13-Abuse of process of Court

Charges levelled against petitioner not covered within mischief of S. 13 of Ordinance and petitioner standing already acquitted by Courts of such charges-Complaint allowed to run for about two year without any proceedings-District Magistrate, on applications of Police Officers claiming recalcitrance on his part, passing inter locutory orders allowing petitioner's detention from time to time without applying his mind - Procedure adopted by District Magistrate unwarranted just to curb liberty of petitioner and put him in harassment--No care taken by prosecution to get proceedings ended in just and lawful manner-Held, such procedure a gross abuse of process of Court and law-Proceedings quashed.-[Abuse of process of Court]. A. K. Ansari for Applicant. Rafique Mahmood Khan, Addl. A.-G. for the State. Date of institution: 23rd September, 1980. The petitioner, Sardar Shah by name stands charged under section 13 of Azad Kashmir Government Control of Goondas Ordinance, 1959 so as to be declared a `goonda' on a number of charges contained in the complaint lodged by the police before the District Magistrate Kotli vide complaint, a certified copy of which is attached with this petition. It is for 23 charges that the applicant was brought before the Court of District Magistrate, Kotli on 4th March, 1978 after he was released on pre-arrest bail by the High Court. Almost for all the charges constituting offences the petitioner was sent before different criminal Courts to stand his trial, and at the same time the instant complaint was also filed against him. He stands acquitted from the Courts where he was prosecuted for the offences allegedly committed by him- that is to say the police failed to establish commission of any offences against the petitioner. In view of the aforesaid acquittal no value can be attached to the allegations of which he was absolved by the Criminal Courts. As a matter of fact except a charge or so, no other charge could be brought within the mischief of section 13 of the Ordinance. It was not specifically stated in the complaint as to what was the abscene or abusive language used by the petitioner. The allegation ought to have been that he is in, the habit of using obscene and abusive language in the public but, no allegation of his being habitual for the use of abscene or abusive language in the public was levelled against him. Criticism on the admi nistration for their alleged malfeasances or the misdoings of the political leaders cannot definitely fall within the ambit of section 13 of the `Goondas' Ordinance. Besides, in this case there had been an excessive abuse of process of the Court. 17 witnesses were listed to state against the petitioner before the District Magistrate but no evidence whatsoever could be taken by the District Magistrate so far and it all shows that the complaint was just made a sword of terrorism and awe hanging over the head of the petitioner which has clearly become a source of harassment to him. The police as well as the District Magistrate both have failed in, performance of their functions and the complaint was allowed to run without any proceedings till 24th November, 1980 when the petitioner was forced to come to this Court under section 561-A, Cr. P. C. The, case was put in Court on 16thJanuary, 1978 and till 24thNovember, 1980 no effective proceedings were at all taken to dispose it of according to law. The perusal of the interlocutory orders shows that at times when the police wanted to hold the petitioner in custody, they made simple appli cations claiming recalcitrance on his part to the District Magistrate who without application of his mind to the case, had been allowing the deten tion of the petitioner from time to time. This was an unwarranted proce dure adopted by the District Magistrate just to curb the liberty of the petitioner. And no care was taken by the prosecution to get the procee dings ended in a just and lawful manner and it went on prolonging the case just to put the petitioner in harassment. That being so, the provisions of section 561-A, Cr. P. C. come to the rescue of the petitioner and I am constrained to hold that there had been a gross abuse of the process of the Court and law on the part of the Court as well as the prosecution. In the result the petitioner is discharged by the quashment of the complaint itself and anything else done pursuant thereto by the District Magistrate against him. The personal bond .as well as the bail bond furnished by him also stand annulled. Petition accepted.