JAN NABI, EXECUTIVE ENGINEER Versus State
This criminal revision petition challenges an order passed by the Sessions Judge, Diamer, which recalled and reversed previous orders of the Judicial Magistrate, Diamer, that had discharged petitioners Nos. 1 to 11 from a criminal case. The core legal question concerns the propriety of a Sessions Judge reversing a discharge order passed by a Judicial Magistrate, particularly when the prosecution had not challenged the original discharge, and whether such an order remains operative against petitioners who were not charge-sheeted in the final police challan. The Court observed that the police had submitted a challan excluding petitioners Nos. 1 to 11 from the list of accused persons. Consequently, the Court held that the impugned order of the Sessions Judge could not operate against these petitioners, as they were no longer implicated in the case. The petition was allowed regarding petitioners Nos. 1 to 11, while it was dismissed concerning petitioner No. 12, who remained named in the challan. The principle established is that an order of discharge by a Magistrate, if not challenged by the prosecution, attains finality and cannot be unilaterally reversed by a Sessions Court to the prejudice of persons not charge-sheeted.
- Can a Sessions Judge reverse an order of discharge passed by a Judicial Magistrate if the prosecution has not challenged that order?
- Does an order of discharge attain finality if it remains unchallenged by the prosecution?
- Can an impugned order of a Sessions Court operate against accused persons who are not named in the final police challan?
MUHAMMAD ALAM, J.--- Petitioners felt aggrieved from the order dated 3/9/2015 of the Sessions Judge Diamer that he passed in Sessions Case No.112/2015, and filed this petition. Through the impugned order, the learned Sessions Judge Diamer recalled/reversed the judgment/order dated 21-11-2014 and order dated 17-11-2014 of the learned Judicial Magistrate Diamer.
2. Police of Police Station Chilas district Diamer chalked FIR No.70/2014 against Mr. Isfandiyar and Wazir Tajwar for the offences described in the said FIR. Police of said Police Station conducted investigation but before conclusion of the investigation, petitioners as well as accused Isfandiyar and accused Mr. Tajwar obtained pre arrest bail. Later on, petitioners Nos.1 to 11 were arrested by the police and were released on post-arrest bail. On 21-11-2014, the Judicial Magistrate Chilas discharged petitioners Nos.1 to 11 from the case. Prosecution did not challenge the said order of Judicial Magistrate and the same attained finality. Through impugned order, the learned Sessions Judge, Diamer reversed the orders of Judicial Magistrate, Diamer.
3. We have heard learned counsel for parties and the learned Deputy Advocate General. The admitted state of affairs is that, by now, police of Police Station Chilas has submitted challan of the case wherein police has charge sheeted three accused in all, out of whom name of accused Isfandiyar son of Ghulam Rabbani and name of petitioner No.12 of this petition is found written in column No.3 while name of Wazir Mohammad Tajwar, is found written in column No.4 of the challan. So petitioners Nos.1 to 11 are not among the accused of the challan.
4. In view of above circumstances, we are of the opinion that impugned order will not operate against petitioners, except petitioner No.12. We further hold that petitioner No.12 is free to move the court for any relief if so advised.
5. In the result, we allow this petition but to the extent of petitioners Nos.1 to 11 and petition stands dismissed to the extent of petitioner No.12. This file be consigned to record.
HBT/96/GB Order accordingly.