AHMED Versus THE STATE

ORDER

1. The applicant filed criminal revision application under sections 435, 436 and 439, Cr.P.C. against the judgment, dated. 7-3-2003 passed by learned Vth Additional, Sessions Judge, Hyderabad dismissing the direct complaint filed by the applicant/complainant.

2. Brief facts of the case are that the applicant filed direct complaint in the Court of Judicial Magistrate, Matiari against the accused Uris son of Muhammad Hassan and others under sections 365, 352, 3-79,, 334/348 and 34, P.P.C. read with section 14 Offences Against Property (Enforcement of Hudood) Ordinance, 1.979 on 31st December, 2002.

3. The offences were exclusively triable by the Court of Sessions Judge, Hyderabad as such learned Judicial Magistrate, Matiari sent the case to the Sessions Court; Hyderabad under section 190(3),. Cr.P.C: vide his order, dated 31st December, 2002. .

4. The case, as set up by the applicant, is that the deceased brother of the complainant namely Suhab during his lifetime was residing' with the complainant, who owned the agricultural land, but the same has been looked after by the complainant. The deceased brother of the applicant executed will in favour of the complainant regarding the agricultural land situated in Deh Chharao. Taluka Mithi and that the complainant will also look after the children and widow of the deceased as per will. The deceased left behind him widow, two daughters and one brother. It is stated that the accused No. l who is husband of the sister of the deceased Suhab has., kept evil eye on the agricultural land from the beginning and just to achieve his goal on 24th, November, 2002 at about 6.00 a.m. the accused persons Nos. 1 to 3 alongwith police personnel of Police Station Oderolal in two mobiles entered as trespassers in the house of the complainant forcibly and kidnapped ladies Mst. Qaima widow of Suhab and her two daughters Mst. Shahnaz aged about 14 years and Mst. Zahida aged about 13 years and they also robbed/looted the house hold articles viz. golden ornaments (12 Tolas), cash of Rs.35,000 has taken away two buffaloes on the pointation of gun with the police. The complainant rushed to the police station for lodging of F.I.R. against the accused persons but the concerned police refused to lodge the F.I.R. of the complainant.

5. On 28-11-2002, complainant sent telegrams to various authorities in this regard and on the next day moved an application to Director Human Rights and Sessions Judge, Hyderabad. It is stated that the accused No. l forcibly and unlawfully got married Mst. Shahnaz and Mst. Zahida with his sons accused Nos.2 and 3.

6. The grievance of the applicant is that the accused Nos. l, 3 and 7 have committed, theft, trespassing, abduction, married with the girls fraudulently without their consent and kept under wrongful confinement illegally and unlawfully as such all accused persons have committed offences under sections 365, 379, 352, 334, 348 and 34, P.P.C. and section 14 of Hudood Ordinance, 1979.

7. The learned trial Court examined the applicant/complainant on oath under section 200, Cr.P.C. on 27-1-2003 and on the same date sent the complaint to learned VIth Extra-Joint Civil Judge and First Class Magistrate, Hyderabad for the purpose of preliminary inquiry and report. After recording the statement of the prosecution witnesses the learned VIth Extra-Joint Civil Judge and First Class Magistrate, Hyderabad sent back a case to learned trial Court. The learned trial Court by impugned order, dated 7-3-2003 dismissed the complaint under section 203, ,Cr.P.C.

8. Aggrieved by the said order the applicant filed revision application.

9. Heard Syed Madad Ali Shah learned Advocate for the applicant and Mr. Masood Noorani Additional Advocate-General.

10. The learned Advocate for the applicant argued that the learned Additional Sessions Judge passed the order without application of the mind and the impugned order is without any reasons and is non- speaking order as such liable to set aside. The learned Advocate relied, upon the case of Muhammad Khan v. State PLD 1998 Kar. 116.

11. The learned Additional Advocate-General raised preliminary objection on the maintainability of revision application without joining the accused persons as parties in the revision application.

12. From the perusal of the record it appears that after recording the statement of the applicant under section 200, Cr.P.C. the learned Sessions Judge has dismissed the direct complaint before issuing process to accused persons.

13. Proviso to section 436, Cr.P.C. provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharging unless said person has/had an opportunity for showing cause why such direction should not be made. From the perusal of the proviso to section 436, Cr.1P.C. it appears that notice is mandatory when the order of discharge is sought to be set aside but same is not attracted where direct complaint has been dismissed without issuing process to accused persons.

14. The accused person at the preliminary stage of inquiry has no locus standi to participate in, the proceedings and as such if the proceedings has been terminated by way of dismissal of the direct complaint the presence of the accused persons in the revision application are not necessary.

15. In view of the above I am of the view that the accused persons are not necessary party to be joined as respondent in the cases where process has not been issued to the said accused persons pursuant to the direct complaint.

16. From the perusal of the orders it appears that the learners Additional Sessions Judge passed the order dismissing the direct complaint without assigning any reasoning. In the impugned order the learned Judge stated that the complaint is outcome of matrimonial disputed so also dispute over the landed property. As regards allegations of kidnapping, trespassing, theft and wrongful confinement the learned Judge stated that the same apparently are introduced simply to aggravate the situation and does not appear true. The learned Judge has not any reason for the said finding. The submission of the learned Advocate for the applicant that the impugned order is non-speaking order have force, as no reason has been given by learned Additional Sessions Judge for his finding, nor learned Judge has discussed the evidence recorded under section 200, Cr.P.C.

17. The Magistrate after examining the complainant in private complaint under section 200, Cr.P.C. must thereafter proceed in accordance with the provisions of Chapter XVI .of the Code or after receiving private complaint if complaint discloses some cognizable offence may send it to the police for investigation under section 156(3) of Code. However, after, the witness has been examined by him he cannot thereafter refer the matter to the police under section 156(3) or the Code.

18. The intention of Legislature under section 190 read with section 200, Cr.P.C. is that while providing ,remedy to file private complaint also to save the public against frivolous or vexatious complaint filed against them in the Criminal Courts and Magistrate must not lightly accept written complaints until he is satisfied that prima facie case is made out against the accused. The order passed for not taking cognizance under section 203 and or taking cognizance under section 204 of Code on the private complaint should not only be speaking order but also demonstrate that before passing the order judicious mind has been applied.

19. For the foregoing reasons the revision application is granted and the case is remanded back to learned Sessions Judge to pass appropriate order on the direct complaint of the applicants strictly in accordance with law, in the light of observations hereinabove, and holding furthers enquiry, if deem necessary.

20. H.B.T./A-517/K Case remanded.