1984 PLP 1562 (MLD)

S. 182--Criminal Procedure Code (V of 1898), S. 63--False information, prosecution for--Magistrate while discharging accused under S. 63, Cr.P.C., directing Police to start proceedings against complainant under S. 182, P.P.C.--Held, Investigation not having come to an end as yet it could not be concluded that information provided by complainant to Police was false and as such order was premature, in circumstances. Asif Saeed Khan Khosa for Petitioner. Syed Tassadaque Hussain Jillani, A.A.-G. for Respondents. Respondent No.3 in person. Date of hearing: 14th February, 1984. Fayyaz Hussain respondent No.2 owns a business concern known as Shaheen Corporation in Dera Ghazi Khan. On 2-8-1983 he reported to the police that Muhammad Waseem petitioner who had been working earlier at the business premises had removed eleven compressors from the Refrigerators and has thus committed theft. The police arrested the petitioner on 3-8-1983. He was remanded to police custody on the request of the police till 12-8-1983 and then on a further request the remand was extended to 17-8-1983. On 18-8-1983 the police applied that the petitioner/ accused be remanded to the judicial custody. The Magistrate declined to grant the remand to judicial custody as according to the Magistrate the police had not been able to find any incriminating material against the petitioner. The Magistrate accordingly vide his order dated 18-8-1983 discharged the petitioner accused under section 63 read with section 344 of the Cr. P. C . He also directed the police to start proceedings against the complainant under section 182, P.P.C. The complainant challenged those orders in revision which came up before Ch. Muhammad Khalil, learned Additional Sessions Judge, D. G. Khan who vide his order dated 26-10-1983 found that the Magistrate was not competent to order the discharge of the accused as the police had yet to submit a final report under section 173, Cr. P. C . The revision petition was allowed and the order dated 18-8-1983 were set aside. The prosecution was allowed to proceed in accordance with law. The accused has brought this petition to the High Court challenging the orders of the learned Additional Sessions Judge dated 26-10-1983 on the ground that the orders of the Magistrate were administrative in nature and no revision was competent. It has also been argued that the revision petition, in any case, was misconceived as it was wrongly assumed by the learned Additional Sessions Judge that by discharging the accused under section 63 of the Cr.P.C. the Magistrate has closed the investigation. 2. After going through the orders of the Magistrate dated 18-8-1983 and of the Additional Sessions Judge, dated 26-10-1983 it is clear that both the Courts were of the view that by discharging the accused under section 63 the criminal proceedings have come to an end. This is obviously a misconception of law. The import of an order under section 63 of the Cr.P.C. is none other than the release of the accused person from custody. It cannot in any way be interpreted to be the cancellation of a case or stopping the investigation. It is well-established that the proceedings before the police investigation are proceedings over which the police alone has control and a Magistrate has no power to interfere with such proceedings. Therefore, clearly the order of discharge under section 63 cannot be interpreted to be an order of closing the investigation. This order is, therefore, only an administrative order and is not susceptible to interference in revision. The revisional orders of the learned Additional Sessions Judge are, therefore, without lawful authority. 3. Section 63, Cr.P.C. makes a provision for a Magistrate to direct release of the accused persons even without a formal bail order when he comes to the conclusion that the police was not justified in arresting the accused or when the Magistrate finds that there is no justification for remanding the accused to custody. A Magistrate can thus effectively grant relief to a person who may have been arrested or detained without sufficient cause, but by doing so he cannot smother the investigation, which can go on in accordance with law until the police submit its final report. Of course the police cannot re-arrest the accused without the orders of the Magistrate. 4. As regards the order of the Magistrate that action be initiated against the complainant under section 182, P.P.C. it may be observed that this order is premature as the investigation has not come to an end, therefore, it cannot be concluded that the information provided by the complainant to the police was false. 5. The result of the above discussion is that the orders passed by the learned Additional Sessions Judge dated 26-10-1983 are set aside. The orders of the Magistrate dated 18-8-1983 are restored except where he directed the police to take action under section 182, P.P.C. The orders of the Magistrate to that extent are modified. The orders of the Magistrate releasing the accused and discharging him under section 63 of the Cr.P.C. are lawful except that they cannot be read to have brought an end to the investigation which can continue in accordance with law. S. G. D. Order accordingly.