P L D 1960 (W (PLP)

Ismatulla for Petitioner. Date of hearing : 3rd February 1960. The petitioner Hafiz Rahmat Khan instituted a complaint against Husain Bakhsh and others under sections 448/149 and 144, P. P. C. which was dismissed under section 203, Criminal Procedure Code, by Begum Surayya Irshad Muhammad Khan, Magistrate 1st Class, Lahore. The petitioner went up in revision to the Court of the Additional Sessions Judge, Lahore, with a prayer for further inquiry into the complaint by reversal of the order made by the Magistrate. The learned Additional Sessions Judge rejected the revision petition on the 7th of November 1959 for the reason that at an earlier hearing in the revision petition, the petitioner had been directed to pay process fee for service of the respondents which he had failed to deposit. The petitioner has come up in revision to this Court. It seems to me that the order of the learned Additional Sessions Judge has proceeded on a misconception of the scope of sections 203 and 436 of the Criminal Procedure Code. When a complaint is dismissed under section 203, Criminal Procedure Code, it is done without issuing any process against the person alleged to have committed an offence and as such no discharge order is passed in his favour. In my view he is not even an "accused person" at that stage, using that word in its technical sense. It is significant to note that the words "person complained against" appear in section 202 and such a person becomes an "accused person" as described in section 204, Criminal Procedure Code, after the Magistrate taking cognizance of the case, decides to issue process on being satisfied that there is sufficient ground for proceeding against him. Section 436, which empowers the superior Courts mentioned therein including the High Court and the Sessions Court to direct further inquiry, places a limitation on that power by the proviso to that section, not to make any such direction against the accused person who has been discharged unless such person has had an opportunity of showing cause against the issue of such a direction. An accused is discharged when the case against him is thrown out by the Magistrate under any one of the sections which specifically contemplate a discharge order, namely, sections 209, 253 and 259, Criminal Procedure Code, or when in an original case before the High Court the Advocate‑General enters a nolli prosequi under section 333 of the Criminal Procedure Code. Therefore, the expression "discharged person" employed in the proviso to section 436, Criminal Procedure Code, refers to' "persons discharged" under any of the above‑mentioned sections in which action has been taken and not to cases dismissed in limine under section 203 or 204 (3) of the Criminal Procedure Code. 1n fact, as stated above, not being an accused person in the contemplation of the Code until the stage reached by section 204, Criminal Procedure Code, there is no question of his discharge as an accused person by an order dismissing the complaint under section 203, Criminal Procedure Code. For an action under section 436, Criminal Procedure Code, the distinction between a dismissal order under sections 203 o r 204 (3), Criminal Procedure Code, and a discharge order under any of the relevant sections, is clearly brought out in section 436 itself, which reads as follows :‑ "On examining any record under section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates, subor dinates to him to make and the District Magistrate may himself make, or direct any Subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204, or into the case of any person (accused of an offence) who has been discharged. "Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made." It will be seen that both the steps of dismissal of a complains and discharge of an accused person are distinguishably mentioned in this section conveying an obvious difference in their effect ants when the proviso specifically covers only cases of discharged persons, clearly cases of dismissal of complaints under sections 203 and 204 (3) are excluded. There was thus no need under the law for the learned Sessions. Judge in this case to issue process against the respondents fort deciding the revision petition under section 436, Criminal E Procedure Code, and the default of the petitioner in not taking steps to deposit the process fee in compliance with that order' should not have entailed the dismissal of the petition. The petition should have been decided on merits, despite the failure of the petitioner to deposit the process fee. I would, therefore, remand the case to the learned Sessions Judge with the direction that the revision petition under section 436, Criminal Procedure Code, shall be heard by him on its own merits, on the point whether it is a case where further inquiry into the complaint is called for or not, and this he will do without the gratuitous step of summoning the respondents, as the same is not enjoined by law. K. M. A. Petition accepted.