' This is an appeal under section 417, Cr. P. C. By Karim Dad appellant against the order of a First Class Magistrate of Rawalpindi dated 29-6-78 dismissing the appellant's private complaint and acquitting Muhammad and others, respondents, under section 249-A, Cr. P. C. Because the appellant had not filed in Court copies of preliminary evidence recorded by the Magistrate within the stipulated period of three days as period by clause (b) of subsection 2 of section 241-A, Cr. P. C.
2. The brief facts of the case are that the appellant filed' a complaint against the accused/respondent in the Court of Mr. Sardar Ali Gorsi, Magistrate First Class, Rawalpindi, under section 380/447/427/149/148, P. P. C. And the learned trial Magistrate, after recording preliminary evidence, summoned the accused/respondents on 29-1-1978 to stand trial. In accordance with the provisions of subsection (2) of section 241-A, Cr. P. C. The trial Magistrate ordered the appellant to supply copies of preliminary evidince of ' his witnesses recorded by the Court to the accused/respondent by the next date i,e, 16-2-1978. The appellant alleges that he gave the requisite copies of the preliminary evidence of the witnesses to the Ahlmad of the Court, but ther is no indication on the record to suggest that such copies were ever filed. Due to the absence or non- service of one or more accused/respondents, the proceedings continued without any objection.
Subsequently, at a late stage, the accused/respondents brought to the notice of the trial Magistrate that the appellant had not supplied the copies as required under section 241-A(2) of the Criminal Procedure Code and that the private complaint should be dismissed. The trial Magistrate refused to accept the fresh copies of the preliminary evidence and fixed the case for arguments and after hearing arguments, acquitted the accused/respondents under section 249-A, Cr. P. C. On 29-6-1978. Being aggrieved by the said order, the appellant filed a petition under section 439-A, Cr.
P. C. For the setting aside order, which was dismissed by the Sessions Judge on 26-7-78. The appellant then preferred a revision petition (Cr. R.
612.78) to the High Court against the said order, which, on 13-5-80, was converted into an appeal against the original order of the Magistrate. This was due to the ruling of this Court in Muhammad Bakhsh's case (1).
3. 1 have heard the arguments of the learned counsel for the appellant, the respondents and the State and have also perused the record. Section 241-A (2), Cr. P. C. Deals with the filing of private complaints. It calls upon a private complainant, when he institutes a case upon a complaint in writing, to state in his petition of complaint the substance of the accusation the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial and also to file in Court, within three days of the order of the Court passed under section 204, Cr. P. C. As many copies of the complaint and other documents which he has filed with his complaint as correspond to the number of the accused summoned by the Court. Clause (b) of subsection (2) of section 241-A, Cr.
P. C. Refers to copies of documents which the private complainant has "filed with his complaint".
Now the Annexures normally filed with a complaint are copies of documents, letters, etc., referred to in the complaint or, where the names and addresses of the complainant's witnesses and the gist of the evidence likely to be produted by the complainant have not been given by the complainant in his complaint, perhaps copies of the list giving the names and addresses of his witnesses and copies of the summary of the evidence which each witness is likely to depose. But it does not cover copies of the evidence recorded by the magistrate himself under section 200 or 202, Cr. P. C. Or by some other person or Police Officer in an inquiry or investigation ordered under the same section.
When one reads subsection (1) of section 241-A, Cr. P. C. One would imagine that the object of subsection (2) of the same section is to provide to each accused not only copies of the private complaint and copies of all documents annexed therewith, but also copies of the evidence of the complainant and his witnesses, whether recorded by the Magistrate himself under section 200 or 202 of the Criminal Procedure Code or recorded by some other person or by a Police Officer in an inquiry or investigation ordered under section 202 of the Code. Unfortunately, the language of subsectionl2) of section 241-A, Cr. P. C. Is somewhat defective and the matter has been left ambiguous. However, this does not relieve the Magistrate of fulfilling the intent for which section 241-A, Cr. P. C. Has been enacted, by doing his duty, in aid of justice, and compelling the private complainant to supply copies of all evidence recorded by himself under section 200 or 202 of the Code or by some other person or by a Police Officer in inquiry or investigation ordered under section 202 of the Code.
(1) 1980 p Cr. I, J 191
4. The copies of the complaint and othcr documents which the complainant under section 241-A
(2) of the Code had to file within three days of the order of the Court under section 204, Cr. P. C. Are intended to give to the accused full information of the case of the private complainant, the names of his witnesses and the gist of evidence which the private complainant may adduce at the trial.
The period of three days mentioned in clause (b) is only directory, as section 241-A does not lay down any penalty for its disobedience. The object of stating the period is to compel the privat complainant to act with speed and despatch in submitting the copies at a early date, to enable their early and speedy transmission to the accuse persons, so that when they appear before the Magistrate, they know the ful case against them beforehand. The object of the time period, is not t mandatorily inflict on the private complainant and disability or penalty for its first violation.
5. In the instant case, the learned Magistrate has treated the period of three days stated in clause
(b) of subsection (2) of section 241-A of the Code as mandatory and as entailing the penalty of dismissal of the complaint and the acquittal of the accused. Nothing could be further from the true intent of the clause. It appears that the Magistrate himself forgot to notice on 16-2-78 that copies of the preliminary evidence had not been filed by the appellant. This state of blissful ignorance continued through eleven to twelve hearings. Section 241-A (2), Cr. P. C. Places a duty on the Magistrate to see that copies of the complaint and relevant documents are supplied to the accused persons, preferably within a reasonable time after the same have been filed by the complainant. When the default of the complainant was brought to the notice of the Magistrate for the first time he should have at least afforded some reasonable opportunity to the appellant to make good the default. Without providing such an opportunity, it was highly improper of the Magistrate to have acquitted the accused/respondents under section 249-A, Cr. P. C. On the very first information of default. In the present case, the preliminary evidence recorded by the Magistrate did not show that a prima facie case existed against the respondents. Without providing a fair opportunity to the complainant to make good the default and without recording a proper finding that notwithstanding a number of opportunities given to the complainant to file the copies, the complainant had failed to do so and it appeared that he was no longer interested in the further prosecution of the case, it could not be said that there was no probability of the accused/respondents being convicted of any offence. Even otherwise, as stated above, the learned Magistrate has treated the period o time as stated in section 241-A (2) (b), Cr. P. C. As mandatory, which I contrary to the intent of that section. The order of the learned Magistrat is, therefore, in excess of jurisdiction and is illegal. The impugned order o the learned Magistrate dated 29-6-78 is hereby set aside. The to the learned Magistrate who shall now proceed with the trial from the point at which he last passed the impugned order. A retrial fro any particular point is permissible, in view of the ruling of the Supreme Court in Moonda v. State (1). The learned District Magistrate, Rawalpindi, shall however, ensure that the case is not entrusted to Mr. Sardar All Gorsi Magistrate First Class, who passed the impugned order.
6. Originally the appellant had filed a revision petition against the order of the Sessions Judge, Rawalpindi, dated 26-7-78. On 13-5-80 I gave notice to the parties that I would treat the said revision petition, which had been filed within sixty days, as the appeal in which leave has been granted under (1) PLD 1958 SC (Pak.) 275 section 417(2), Cr. P. C. This was due to the rulling of this Court in Muhammad Bakhsh v. Lqbal Ahmad (1). This case was permitted to be argu as an appeal against the original order of acquittal. In the absence o anything contained in the High Court Rules and Orders directing such a appeal to be heard by a Division Bench, the same was heard by me sitting in Single Bench.
(1) 1980 P Cr. L J 191 1.