1969 P Cr (PLP)

Farmanullah Khan for Petitioner. Abu Salek for the Opposite‑Parties. This Rule was issued on the Deputy Commissioner, Chittagong and the opposite‑parties to show cause why the order of discharge passed under section 253(2) of the Code of Criminal Procedure should not be set aside.

2. The petitioner filed a petition of complaint in the Court of the Sub‑Divisional Officer (North) Chittagong against the opposite‑parties and others alleging that on 7‑5‑1967 the accused persons being variously armed, trespassed into his land and damaged paddy seedlings causing a loss of Rs. 300 to the complainant. Complainant obstructed the accused persons but the accused persons abused him and held out various threats.

3. Petitioner informed the members of the Union Council and other respectable persons of the locality about the occurrence and subsequently on 11‑5‑67 filed a petition of complaint in the Court of the Sub‑Divisional Officer (North) Chittagong as men tioned above. The matter was enquired into by Mr. Sikdar, Magistrate, 3rd Class, Chittagong who found a prima facie case against the accused persons. The accused persons were accordingly summoned under sections 447 and 427 of the Pakistan Penal Code and the case was thereafter transferred on 21‑9‑67 to the file of Mr. M. A. Rashid, Magistrate 2nd Class, Chittagong for disposal. The trial Court fixed the case on 23‑10‑67 for examination of prosecution witnesses. On 23‑10‑67 the complainant and all the accused persons appeared. No prosecution witness was, however produced on that day and the complainant‑petitioner filed a petition praying for time for producing prosecution witnesses in the case. It was further stated in that petition for time that the complainant is an old ailing man and has no other representative of his for looking after the case and as such he could not come to Court for obtaining summons of witnesses on an earlier occasion. The trial Court accepted this prayer and granted adjournment for a month and fixed 22‑11‑67 for examination of the prosecution witnesses. On 22‑11‑67 the complainant as well as all the accused persons appeared, but none of the prosecution witnesses was produced before the Court and again a petition was filed by the complainant for obtaining time for one month for producing witnesses in the case. It was further stated in that petition dated 22‑11‑67 that the witnesses could not be produced as some of them were ill and others were engaged in their personal works. It is curious to note that no mention was made as to which of the witnesses were ill and which of the witnesses had their personal works. Moreover, the complainant who was present in Court did not offer to examine himself as a witness on that day. The trial Court, however did not accede to the request of the complainant‑petitioner and passed the following order :‑ "22‑11‑

67. All the accused persons are present. Complainant is present and filed a petition praying for further time. I do not find any reason for allowing him further time. Adequate time was allowed to him for P. Ws. It appears that he is not in a position to produce his witnesses and as such is taking dilatory tactics on this on that plea only to harass the accused. There is no good in dragging the case in this way. The charge appears to be groundless for which I have reason to believe, the P. Ws. are not turning up to depose. The accused persons are, therefore, discharged under section 253 (2), Cr. P. C. File the case. This order of discharge has been challenged before me."

4. Mr. Farmanullah Khan, the learned Advocate appearing for the petitioner in this case submits that the order of discharge is clearly illegal in view of the fact that learned Magistrate did not record any reason for passing the order of discharge in ques tion. Subsection (2) of section 253 of the Code of Criminal Pro cedure clearly confers a jurisdiction on the Magistrate to discharge the accused persons at any stage prior to the framing of the charge. See Sundar Das Loghani v. Furdun Rustom Irani (A I R 1939 Cal. 329) and Kunj Behari Lal v. Emperor (27 C L J 541). This the learned Magistrate can do only after recording his reasons. The reasons may not be of a particular nature but must be in the exercise of his judicial discretion. This Court will uphold such orders of discharge passed by the Magistrate only in a case where the reasons are clearly sustained by the record and is based on good and proper materials. See the case of Uttamrao Shripat Bhulekav v. Asru Hanwanta Bhutekar and another (49 C L J 519). Considering the present order of dis charge from the stand‑point of the principles mentioned above, it is obvious that the learned Magistrate has given his reasons for ordering the discharge of the accused persons.

5. Mr. Abu Salek, the learned Advocate for the opposite -parties has rightly contended that these reasons are clearly based on the materials on record. The learned Magistrate has observed that the allegation is baseless and that is the reason why the prosecution witnesses are not coming to depose in this case. It is obvious that sufficient time was twice given by the trial Court. Time was also taken by the petitioner when the matter was being enquired by Mr. Sikdar on earlier occasions. The petition of complaint itself was filed in Court four days after the alleged date of occurrence. In spite of these two opportunities the petitioner could not produce a single witness to depose in the case nor did he examine himself and therefore, the contention of the learned Advocate for the petitioner can hardly be accepted. I am of opinion that this is not a fit case in which I should exercise my discretion and set aside the order of discharge passed by the learned Magistrate. The Rule is accordingly discharged. Rule discharged.