1990 P Cr (PLP)

Date of hearing: 5th September 1989. This application made under section 561‑A, Cr.P.C. raises an interesting question with regard to an order passed under section 249‑A, Cr.P.C.

2. Ashraf Shah son of respondent Haji 0alandar Khan owns premises No.J‑71, Korangi, Karachi. Applicant Jehan Shah is tenant of Ashraf Shah in respect of a portion of this premises. Ashraf Shah sought ejectment of applicant Jehan Shah from the portion in his occupation, but without success. On 17‑5‑1980, the respondent No. filed a complaint against the applicants for the offence under section 448/465/471/34, P.P.C. for having committed trespass and forgery of documents in relation to the said premises, which was brought on regular file. An application under section 249‑A, Cr.P.C. was moved on behalf of applicants, which came to be dismissed by S.D.M. Bin Oasim on 15‑7‑1987, with the following order: "I have heard arguments of both the counsel and have come to the conclusion that the case is not of the nature as alleged by defence counsel, and nor there is any civil litigation. Moreover, after framing the charge under section 485/:x/34, P.P,C., no evidence has so far been recorded. It is too early to say that there is no possibility of the accused being convicted as alleged by the defence counsel. The application under section 249‑A, Cr.P.C; is premature. I, therefore, reject it at this stage."

3. After the evidence of respondent No.l and his witnesses was recorded the application under section 249‑A, Cr.P.C. was repeated, but the same was dismissed vide order dated 22‑4‑1989, in the following words. "I have heard both the parties and also read the case papers. The statements of all the concerned have been recorded and it is at the verge of final order. I hereby reject this application for the reasons stated above." It is in these circumstances that the applicants have approached this Court for quashment of proceedings pending against them.

4. Section 249‑A, Cr.P.C., which was added by the Code of Criminal "Nothing in this chapter shall be deemed to prevent a Magistrate fro:;, acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence." `

5. A bare perusal of section 249‑A, Cr. P. C. shows that the Magistrate can acquit the accused at any stage of the case if (i) after hearing the parties and (ii) for reasons to be recorded, he considers the charge as (i) groundless or (ii) there is no probability of the accused being convicted of any offence.

6. When a Magistrate is satisfied on the evidence available on‑record that a criminal charge cannot be sustained, section 249‑A Cr.P.C. relieves him from proceeding ahead with the trial. The words `at any stage of the case' are self explanatory and in a suitable case where the charge appears to be `groundless' or allegations prima facie disclose a civil dispute, the Magistrate can acquit the accused even without examining the complainant.

7. The word 'groundless' used in section 249‑A, Cr.P.C. means, when there are no good grounds for the charge. No hard and fast rule can, however, be laid down as to when a Magistrate is justified in holding a charge as groundless. Each case has to be considered on its own merits. With this legal position in view,it is apparent that the order dated 22‑4‑1989 passed by S.D.M. Bin Qasim by which he dismissed the application under section 249‑A, Cr.P.C. is perfunctory and slipshod. It is a laconic order, which does not tell the losing party why and how their prayer was refused. As a matter of fact it is not an order in the eyes of law and cannot be sustained. I would, therefore, set aside the said order and direct the S.D.M. to rehear the application made by the applicants under section 249‑A, Cr.P.C., and decide it in accordance with law after recording reasons therefor.

9. The application made under section 561‑A, Cr.P.C. is disposed of in the above terms. S.A./J‑87/K Order quashed.