1985 PLP (2) (MLD)

This order would dispose of petition filed by Muhammad Ashiq under section 561-A, Cr.P.C. The facts leading to the 'tiling of the present petition are as under: Muhammad Ashiq filed complaint on 28-6-1983, against Hassan and seven others, for offences under sections 148, 323, 307 and 506/149, P.P.C. with the allegation that on 22-6-1983, the accused constituted an unlawful assembly and in the prosecution of the common object of unlawful assembly committed rioting armed with deadly weapons and attempted on the life of Muhammad Sadiq and caused him fifteen injuries with blunt weapon. Muhammad Sadiq, the injured witness, supported the complaint while appearing before the Magistrate at preliminary stage. Muhammad Ashiq complainant was also examined who too supported the complaint. Ashraf corroborated the statements of Muhammad, Sadiq and Muhammad Ashiq. After recording the preliminary evidence,, the learned Magistrate dismissed the complaint vide order, dated 20-7-1983. Dissatisfied with the order of dismissal of complaint, Muhammad Ashiq filed revision petition in the Court of Session. The learned Additional Sessions Judge dismissed the revision petition on the ground that it was hit by sections 417(2) and 439(5), Cr.P.C. It was further observed by the learned Additional Sessions Judge that the petitioner could file appeal in the High Court in the case of complaint. .

2. The learned Additional Sessions Judge had taken an erroneous view of the law. Chapter XVI deals with complaints to Magistrate. It is provided in section 203, Cr.P.C., that Court before whom a complaint is made or to whom it has been transferred, or sent, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202 there is in his judgment no sufficient ground for proceeding. The order of dismissal of complaint is passed by the Magistrate under section 203, Cr. P . C . Revision is competent against such an order under section 435/436, P.P.C. Additional Sessions Judge does not seem to have read the said section, otherwise he would not have passed the impugned order. Chapter XX deals with the trial of B cases by Magistrate. Procedure has been prescribed to be observed by the Magistrate in the said Chapter for the trial of cases instituted upon Police report. It is contained in section 245(1), Cr.P.C. that if the Magistrate upon taking the evidence referred to in section 244 and such further evidence (if any) as he may, of his own motion cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal. It is clear from section 203 and 245(1), Cr.P.C. that the order of dismissal of complaint is distinguishable from the order of acquittal. Section 417(2) , Cr.P.C. applies to the case where an order of acquittal is passed in a case instituted upon complaint. It does not deal with the cases of dismissal of complaint under section 203, Cr.P.C. Even section 417 (2), Cr.P.C. does not give right to the complainant to file an appeal. His only remedy is to file application for the grant of special leave to appeal from the order of acquittal and if the application is allowed, it is then only that he can present an appeal. Section 417 (2) clearly deals with order of acquittal passed in a case instituted upon complaint. The complainant can avail of this remedy only in High Court. It is provided in section 439(5), Cr.P.C. that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. This section was also not applicable in the instant case. As observed earlier, the appeal was not coin4etent against the order of dismissal of complaint under section 203, Cr.P.C. Furthermore, no right has been given to the complainant to file an appeal against order of acquittal passed in a case instituted upon the complaint. Where a case instituted upon a complaint and an order of acquittal is passed, the remedy available to the complainant is to file an application for leave to appeal before the High Court and it is only after the grant of that application that the complainant can file an appeal to the High Court. The case of Ashiq Ali was not hit by sections 417(2) and 439(5), Cr.P.C. For the reasons stated above, the petition is accepted. Case is remanded to Sessions Judge, who may either dispose of the criminal revision himself or entrust it to some other Additional Sessions Judge for disposal on merits. M.Y.H.