P (PLP)

6 Luck. 86 and 37 Cal. 13 referred to. ORDER.‑‑'One Noor Muhammad brought a complaint under section 406 Pakistan Penal Code against Abdur Rahman in which Abdur Rahman was discharged by the trial Magistrate on the ground that the case was doubtful against him. At this he moved the Magistrate under section 476 of the Criminal Procedure Code to lodge a complaint against six persons, Noor Muhammad who had made a complaint against Abdur Rahman under section 406 Pakistan Penal Code, his witnesses Ilahi Bakhsh, Muhammad Ali, Shah and Gul Muhammad and also Muhammad Bakhsh Sub‑Inspector and Wahid Bakhsh Head‑Constable who had made the enquiry in the complaint against Abdur Rahman under sec tion 406 Pakistan Penal Code. The petition of Abdur Rahman under sections 211, 193 and 109 Pakistan Penal Code was dismissed by the trial Magistrate and appeal to the learned Sessions judge also failed. This is a revision petition before this Court. Section 476 reads :‑ "When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, subsection (1) clause (b) or clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non‑bailable may, if it thinks necessary so to do send the accused in custody to such Magistrate and may bind over any person to appear and give evidence before such Magistrate. The powers given by this section, it has repeatedly been held, should be used with care and due consideration. And it is by no means in every instance in which a party fails to prove his case that the judge who has decided against such party is justified in exercising the powers given him by this section. This section is meant to provide safeguards against reckless prosecutions and therefore a certain amount of care should be taken before a pro secution is ordered. In 6 Luck. 86 it was held that proceedings should not be undertaken at the instance of private persons unless the prosecution is clearly, in the interest of the state and is reasonably certain to result in a conviction. The order should disclose a reasonably well‑founded and deliberate judicial opinion that there was ground for inquiry and the power given by this section should be used with care and consideration. See 37 Cal.

13. In this case as already pointed out the present petitioner Abdur Rahman was not discharged in the complaint under section 406 Pakistan Penal Code on the ground that it was false and frivolous. He rather escaped the penalty of law on the ground that the case was proved to be doubtful against him. In such circumstances the Court had been guilty of the violation of the well‑settled law in section 476 of the Criminal Procedure Code if the prosecution of the respondents had been ordered. It was essential‑ for the Court to consider whether there was a reasonable probability for the conviction of the respondents and whether it was expedient in the interest of justice to order the prosecution of the respondents. These two ingredients can never exist in a case in which the accused is let off only on the ground of doubt. The order of the trial Magistrate in rejecting the petition of Abdur Rahman to prosecute his adversaries was absolutely correct. The learned Sessions judge was also right in dismissing his appeal. In such conditions the petition for revision cannot succeed. If should also be noted in the end that action under sec tion 476 of the Criminal Procedure Code is absolutely within the judicial discretion of the Court of the first instance and the petitioner cannot force the Court to make a complaint where the Court is not inclined to take this step. This petition therefore has no force and is dismissed. I have noticed more than once that the grounds of appeal or revision are couched in seriously objectionable language which amount to contempt of Court. The present petition is one of those instances. I have not taken action against him under contempt of Court in this case on the assumption that the warning given by me to him would serve the useful purpose in the future. Abdur Rahman present. Order announced. K. M. A. Petition dismissed.