1. This Rule was obtained by the petitioner whose revisional application under section 435 of the Code of Criminal Procedure was rejected by Mr. Kaiser Ali, Additional Sessions Judge, Dacca.
2. Briefly the facts are that the petitioner A. M. Rafiqul Islam filed an application under section 190-A of the Criminal Procedure Code before the Deputy Commissioner, Dacca in which it was stated that the accused opposite-parties along with others, about 100 in number, being armed with deadly weapons entered the premises of a Madrassa, of which he wasthe founder Secretary, and looted away various material worth about Rs. 10,000 of the said Madrassa. The application was sent to the Sub-Divisional Officer, Manikganj for report on receipt of which he was asked to take necessary action. There after cognizance was taken by the Sub-Divisional Officer, Manikganj who transferred the case to the file of another Magistrate. Ultimately the case came to the file of Mr. B. C. Son Gupta who examined witnesses and framed charges under sections 148 and 379 of the Pakistan Penal Code against the accused persons. A petition was filed on behalf of the complainant-petitioner for proceeding with the case under Chapter XVIII of the Criminal Procedure Code but the prayer was rejected by the learned Magistrate. A revisional application was filed before the Sessions Judge against the said order and the learned Additional Sessions Judge, who heard the application, rejected the same after holding that none of the P. Ws. Stated anything which indicated that the alleged theft was committed by putting the authorities of the Madrassa in imminent fear of violence and consequently there was no ease for converting, an offence of theft into one of dacoity.
3. Mr, K. M. Subhan, learned Advocate appearing on behalf of the petitioner invited my attention to the evidences of the P. Ws. And contended that the finding of the learned Additional Sessions Judge is not based upon the said evidences which make out a prima facie case of dacoity, There is consistent evidence on record that the accused persons, more than five in number, being armed with various deadly weapons went to the Madrassa and tooted away the properties of the Madrassa and when some of the witnesses, who were present at the time, protested the accused persons attacked them and tried to assault them with the weapons in their hands. In the circumstances, there arc evidences to show that the offence of theft was committed and in the act of committing the theft, the culprits attempted to cause hurt to some of the witnesses or put them in fear of instant hurt. The learned Trying Magistrate should, therefore, have framed a charge under section 395 of the Pakistan Penal Code against the accused persons and committed them to the Court of Session, for trial. The failure to do so tantamounts to an order o discharge of the accused persons of the said charge and in the facts and circumstances of the case the order of discharge cannot be sustained. In support of the view taken by me I may refer to the case of Ramrao v.
4. Emperor (1) where it was held that the order of the Trying Magistrate in refusing to frame a charge under section 376 was in substance an order discharging the accused in respect of the said offence and both the Sessions Court and the High Court have power to revise it. Similar view was expressed by the High Court of Madras in a case which was reported in AIR 1953 Mad.
26. In view of what have been stated above this petition must succeed.
5. The Rule is, accordingly made absolute. The case is sent back with the direction that the learned Magistrate shall frame charge under section 395 of the Pakistan Penal Code against the accused persons and commit them to the Court of Session for trial.