P L D 1952 Azad J & K 5 (PLP)

S. 203‑Comp laint dismissed without giving notice of date of hearing to complainant‑Dismissal illegal. The Magistrate decided the case on a day subsequent to the date of the hearing. The hearing was fixed for 15th September, 1951. No order was passed on that date. On the following day the case was dismissed and no order was passed as to the discharge or acquittal of the accused. Order dismissing the complaint under section 203 Criminal Procedure Code being against law was set aside. Habibullah Khan in person and nemo for the Respondent. The facts of the case areas follows :- The petitioner Munshi Habibullah Khan brought a comp laint against Muhammad Hussain Khan, Sub‑Inspector of Police for an offence under section 500 A. P. C. The District Magistrate examined the complainant on 29th December 1949 and ordered that the accused be summoned to answer the charge. The accused did not appear before the District Magis trate who later on transferred the case to the Revenue Assis tant Magistrate, Ist Class, Muzaffarabad on 25th May, 1950. There were several subsequent adjournments but the Magis trate did not succeed in securing the presence of the accused. On 19th May 1951 the Magistrate sent the case to the Superin tendent of Police, Muzaffarabad for a departmental enquiry and for an investigation under section 202 Criminal Procedure Code. Thereafter the case was adjourned thrice, as no report was received from the Superintendent of Police and on the last but one hearing the case was adjourned to 15th September 1951. The file was not however put up to the Magistrate on the fixed date. On 16th September 1951 a report was received from the Superintendent of Police to the effect that no offence had been committed by the accused. On receipt of this report the Magistrate dismissed the case under section 203 Criminal Procedure Code. It is against this order that the complainant has come up in revision to this Court. It may be noted that the complainant was not informed that the case will be taken up on 16th September 1951 and no notice was issued to him to prove his allegations. The proceedings of the case show that the Magistrate does not know A. B. C. of the law of the procedure. The orders dated 19th May 1951 and 16th September 1951 passed by him are not warranted by law. The object of an investigation under section 202 Criminal Procedure Code is to ensure that no person shall be compelled to answer a criminal charge unless the Court is satisfied that there is a prima facie case for pro ceeding and issuing a process against the accused person. In this case the Magistrate did not postpone the issue of process for compelling the attendance of the accused person. It appears that the District Magistrate was satisfied that there was a prima facie case for proceedings against the accused under section 500 A. P. C. and he ordered the issue of process. After 18 months when there had been about a dozen adjournments, the trial Magistrate who is subordinate to the District Magis trate sent the case to the Superintendent of Police under section 202 Criminal Procedure Code. This order could be passed before the process was issued The order of the Magis trate directing an investigation under section 202 Criminal Procedure Code is in contravention of the section. After the issue of the process the Magistrate should have proceeded‑ with the trial. He could not direct an investigation under section 202~ Criminal Procedure Code. If the Magistrate had postponed the issue of process and had directed an investigation under section 202 Criminal Procedure Code he could not even then have dismissed the complaint without giving the complainant an opportunity to prove his allegations. Moreover the Magis trate decided the case on a day subsequent to the date of the hearing. The hearing was fixed for 15th September, 1951. No' order was passed on that date. On the following day the case was dismissed and no order was passed as to the discharge or, acquittal of the accused. As stated above the proceedings show that the Magistrate is ignorant of the elementary principle of law. His order dismissing the complaint under section 203 Criminal Procedure Code being against law is set aside and the case is sent for retrial to the Sub‑Judge Magistrate 1st Class, Muzaffarabad. K. M. A. Retrial ordered.