Arbab Muhammad Tahir, J.- The petitioner, through the instant petition, has assailed order, dated 30.10.2023, passed in exercise of revisional jurisdiction by the learned Sessions Judge (East), Islamabad whereby order, dated 04.10.2023, passed by the learned Judicial Magistrate in FIR No.367/2023, dated 30.06.2023, registered under sections 302, 109, 34 of Pakistan Penal Code, 1860 at Police Station Shahzad Town, Islamabad (hereinafter the FIR") was set-aside. The learned Judicial Magistrate, through the order under challenge before the learned Sessions Judge, had released the accused persons exercising powers under section 63 of the Code of Criminal Procedure, 1898. The concluding paragraph of order dated 04.10.2023 is reproduced below.- "It is suffice to say that the purpose of investigation i.e. Rule 25.2 of Police Rules, 1934 i.e. is to discover the actual facts of the case." However it is found otherwise. No reasonable incriminating substances exist as against the accused persons. Accused persons produced are hereby released under section 63 CrPC. They be released if not required in any other case. Nonetheless, pertinent to mention this order won't stand if any other solid incriminating substance as against the accused persons was found in future course of investigation."
2. The facts relevant for adjudication of the petition in hand are that the FIR was registered on the "oral statement" of Mubashir Javed (hereinafter referred to as the "Deceased") in injured condition at Surgical Ward No.5, PIMS Hospital, Islamabad. It was narrated by the Deceased that on 28.06.2023, at about 05:50 p.m. in the area of Tarlai Kalan, Islamabad when he was riding his motorcycle, the accused persons riding on motorcycles i.e. Rizwan Ijaz son of Ijaz Mehmood armed with pistol, Ahmed Yasin son of Muhammad Yasin, armed with pistol, Hassan Yasin son of Muhammad Yasin, armed with pistol and one unknown person intercepted him. The Deceased in an attempt to save his life, started running. In the meanwhile, Rizwan Ijaz fired from his pistol, which landed on his lower back, Ahmed Yasin's fire landed on his spinal cord in the lower back; however, Hassan Yasin's fire did not hit the body of the Deceased. Thereafter considering the Deceased as dead, the accused persons fled away from the crime scene. The motive disclosed in the FIR is that the Deceased had contracted court marriage with the daughter of Rizwan Ijaz, namely, Laiba. On 02.07.2023 at about 06:10 a.m., the Deceased succumbed to his injuries, therefore, section 302 PPC was added to the FIR.
The nominated accused persons were arrested (Rizwan Ijaz on 23.09.2023 and Ahmed Yasin on 30.09.2023) and produced before the learned Judicial Magistrate on 01.10.2023. On the said date, the Investigating Officer submitted application before the learned Judicial Magistrate seeking physical remand of the two accused persons stating that Rizwan Ijaz had led to the recovery of motorcycle. It was further stated that recovery of 30 bore pistol is yet to be affected. Both the accused were again produced before the learned Judicial Magistrate on 04.10.2023 with a request for physical remand. However, the learned Judicial Magistrate ordered the release of the said accused persons under section 63 Cr.P.C. The plea of accused persons before the Magistrate was that they were not present at the crime scene at the time of the commission of the offence. The Magistrate had based his order approving the plea of alibi raised by the accused persons.
Order, dated 04.10.2023, was assailed through revision petition before the learned Sessions Judge.
The learned Sessions Judge vide the impugned order, set-aside the order passed by the learned Judicial Magistrate, hence this petition.
3. The learned counsel for the petitioners has argued that; the impugned order, dated 30.10.2023 of passed by the Sessions Judge is illegal and not sustainable in law; the Magistrate releasing an accused under section 63 Cr.P.C. exercises administrative functions; the remedy of filing a revision petition against such administrative order is not available; the learned Judicial Magistrate while passing an order under section 63 Cr.P.C. does not perform judicial functions; the principles and law laid down by the Supreme Court in the case titled "Bahadur and another v. The State and another" [PLD 1985 SC 62] are attracted; the learned Sessions Judge could not have exercised revisional jurisdiction in the case in hand; the case was of no evidence and the learned Judicial Magistrate was justified in releasing the accused under section 63 Cr.P.C.; jurisdiction cannot be conferred by consent of the parties; non-raising of the objection as to jurisdiction before any forum is not fatal and does not bar the party from raising the same before the subsequent judicial forum; the Magistrate did not exercise the powers under section 167 Cr.P.C. in the case in hand; the impugned order is passed without any lawful authority and is liable to be set aside. Reliance has been placed on the cases titled "Bahadur and another v.
The State and another" [PLD 1985 SC 62], "Hidayatullah and others v. the State through Advocate-General, N.W.F.P, Peshawar High Court, Peshawar" [2006 SCMR 1920], "Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others" [2008 SCMR 240], "Maulvi Aziz-ur- Rehman v. Ahmad Khan and others" [2004 SCMR 1622], "Safdar Ali v. Zafar Iqbal and others"
[2002 SCMR 63], "Ashiq Hussain v. Sessions Judge, Lodhran and 3 others" [PLD 2001 Lahore 271], "Muzaffar Ahmad v. The State and 2 others" [2021 PCr. LJ 1393 Lahore], "Allah Ditta v. Saeed Ahmed Awan and 2 others" [2004 YLR 1410 Lahore], "Waqarul Haq alias Mithoo and another v.
The State" [PLD 1988 Lahore 336], "Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan" [1985 PCr.LJ 244 Lahore].
4. The learned State Counsel has tendered appearance. He was assisted by the learned Counsel for respondent No.1. They have argued that; the impugned order passed by the Sessions Judge is well reasoned; the Magistrate had exercised judicial powers and the revision petition filed by respondent No.1 was maintainable; the learned Judicial Magistrate had erred in concluding that there was no evidence against the accused persons; the accused persons were nominated in the FIR with specific role and there was no confusion regarding their identity; the Deceased had got recorded his statement and thereafter he passed away as such his statement is relevant fact under Article 46 of the Qanoon-e-Shahadat Order, 1984; the overwhelming evidence available on record was ignored by the learned Judicial Magistrate; the instant petition is not competent and is liable to be dismissed. Reliance has been placed on "Muhammad Afzal v. The State" [2012 SCMR 707], "Waqar ul Haq v. The State" [1985 SCMR 975], "Muhammad Sadiq v. The State" [2018 MLD 1758], "Pervaiz Ahmed v. The State and 2 others" [2022 YLR Note 42], "Hazar Khan and 3 others v.
The State" [2013 PCr.LJ 1892 Sindh], "Hamza Sadaqat v. The State and another" [2022 YLR 1024 Islamabad].
5. Heard. Record perused.
6. The petitioner has filed this petition assailing the exercise of revisional jurisdiction under section 435/439-A Cr.P.C. by the Sessions Judge against an order passed by the Magistrate under section 63 Cr.P.C. The question for determination is whether the exercise of authority by the Judicial Magistrate under section 63 Cr.P.C. is "administrative" or "judicial".
7. In order to resolve the above question, the judgment of Supreme Court in the case titled "Bahadur and another v. The State and another" [PLD 1985 SC 62] is relevant. In the referred judgment the Supreme Court had dealt with a case wherein the Ilaqa Magistrate had discharged the accused persons on a report submitted by the police that no case was made out against the said accused persons. Against the said order of the Ilaqa Magistrate, the aggrieved party invoked the revisional jurisdiction of the High Court under section 439 Cr.P.C. The High Court held that while examining the report under section 173 Cr.P.C. and deciding as to whether he should cancel the registered criminal case as recommended by the police or take cognizance, the Magistrate acts as "Criminal Court" and whatever his decision may be, is revisable by the High Court under Section 439 Cr.P.C. The High Court in the referred case, set-aside the order passed by the Magistrate and remitted the case back to re-examine the question of guilt of the accused. The matter ultimately went upto the Supreme Court. The Supreme Court in Bahadur s case, supra, examined two divergent views regarding the legal status of the order passed by a magistrate agreeing with cancellation report i.e. (i) that while discharging the accused on a report under section 173 Cr.P.C. and in cancelling the registered criminal case, the Magistrate acts as a "Criminal Court" and his order is revisable under section 439 Cr.P.C., and (ii) that while discharging the accused and cancelling a registered criminal case, on a report under section 173, Cr.P.C. a Magistrate does not act as "Court", as such his order is administrative and not revisable under section 439 Cr.P.C. The Supreme Court in Bahadur's case essentially considered the question whether the Magistrate in cancelling the registered criminal case acts as "inferior Criminal Court" and whether his order is revisable.
8. The Supreme Court in Bahadur's case, supra, has underlined the essential features of the "administrative" orders of the Magistrate and laid down the test so as to distinguish between "administrative" and "judicial" orders. The main features of administrative orders passed by the Magistrate are that, (i) no finality or irrevocability is attached to it, (ii) the party is free to institute a complaint on the same facts, (iii) the Magistrate after passing the said order does not render himself functus officio, (iv) it does not amount to a decision given as there is no lis before the Magistrate, (v) they are directed towards the regulation and supervision of public affairs and the initiation and maintenance of the public services. On the other hand, judicial orders, (i) determine a controversy after hearing the parties, (ii) the decision so given is binding on parties, (iii) such decision/determination attracts the principle of res judicata to subsequent proceedings, (iv) such order cannot be rescinded by the tribunal itself and (v) such order is potentially open to attack (in appeal or revision) for any material error of law or fact in either direct or collateral proceedings and such (appellate or revisional) proceedings cannot constitute res judicata. The order passed by the Magistrate whereby the registered criminal case was cancelled and the accused persons discharged, was held to be administrative in nature. It was held that the administrative order of the Magistrate is not amenable to revisional jurisdiction under section 435 to 439 Cr.P.C.
The principles and law laid down have been consistently endorsed by the Supreme Court in the cases titled "Muhammad Sharif v. The State and another" [1997 SCMR 304] and "Hidayatullah and others v. The State through Advocate-General, N.-W.F.P. Peshawar High Court, Peshawar"
9. In the case in hand the two nominated accused were apprehended. They were produced before the Magistrate for obtaining their physical remand. During the physical remand one motorcycle and a pistol were also recovered. The FIR was registered on the statement of Deceased, who succumbed to his injuries, who had specifically nominated the said arrested accused persons with specific roles. The relevancy of statement of the Deceased and evidentiary value of the recovered articles would obviously be determined during trial by a competent court. However, the Magistrate instead of exercising powers under section 167 Cr.P.C. in respect of the request for physical remand, proceeded to release the arrested accused persons under section 63 Cr.P.C. by holding that "no reasonable incriminating substances exist as against the accused persons". This observation was made by the Magistrate after reproducing in his order, the opinion of expert who had analyzed the video footage submitted before the Investigating Officer by the accused person in an attempt to establish the plea of alibi, which determination was otherwise not within his competence and domain.
10. The Magistrate has exercised the powers under section 63 of Cr.P.C. Bare perusal of the provisions of section 63 reveals that the same is a disabling provisions and prohibits the discharge of a person apprehended by the police officer, except on his own bond, or on bail, or under the Special order of a Magistrate. Chapter V of Cr.P.C. (sections 46 to 67) deals with arrest, escape and retaking . Section 63 is the safeguard against unjustified arrest and the police officer as well as the Magistrate can discharge a person in custody against whom either the evidence is non-existent or the arrest is mistaken. Section 167 Cr.P.C. prescribes the procedure where investigations cannot be completed in twenty-four hours. Section 167(2) provides that the Magistrate to whom an accused person is forwarded may from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a terms not exceeding fifteen days in the whole. Section 173 Cr.P.C. deals with submission of investigations report. Sub section (3) of section 173 Cr.P.C. provides that where it appears from a report forwarded under section 173, that the accused has been released on his bond, the Magistrate shall make such order for the discharge of bond or otherwise if he thinks fit.
11. In the case in hand, the police officer did not recommend to the Magistrate that the accused be discharged on the ground of deficient evidence. In fact the police had submitted a request for further physical remand in view of substantial progress made during investigations in the criminal case. Furthermore, the contents of the FIR and the plea of alibi raised by the accused persons were yet to be considered by the trial in the light of evidence of the parties. The Magistrate while passing order, dated 04.10.2023, proceeded in haste and ignored that the question of guilt and innocence of the accused persons was to be considered by the competent trial court. He ignored that such intricate disputed questions required recording of evidence, which could not have been resolved in his administrative capacity, particularly when he lacked jurisdiction to try the criminal case. The powers under section 63 Cr.P.C. ought to have been exercised in a case of unjustified arrest of the accused persons in absence of sufficient evidence as to their involvement in the criminal case, but in a case where the accused persons were specifically nominated (if proved during trial) and recovery of the incriminating articles was affected (subject to determination of evidentiary value by during trial), then, prima facie, sufficient incriminating material was available on record for the Magistrate to have either granted or refused the physical remand as requested by the police officer. The Magistrate should have left the determination of the guilt or innocence of the accused persons to a court competent to try the case after completion of the investigations. The Magistrate by simply releasing the nominated accused persons under section 63 Cr.P.C. blocked further progress in the investigation of the criminal case. As held by the Supreme Court in Hidayatullah's case supra, the Magistrate was expected to exercise his administrative powers / discretion justly, fairly and with due application of mind to the facts of the case, however, in the case in hand the order passed by the Magistrate has offended the very spirit of discharge under section 63 Cr.P.C.
The powers under section 63 Cr.P.C. could not have been exercised as a substitute of Sections 249- A or 265-K Cr.P.C.
12. In the light of the principles and law highlighted in Bahadur's case, supra, the order passed by the Magistrate under section 63 Cr.P.C. is administrative in nature. The Magistrate did not act as "inferior Criminal Court", as such his order was not open to challenge in revisional jurisdiction before the Sessions Judge under Section 435/439-A Cr.P.C. The impugned order is, therefore, not sustainable in law. Likewise, the order passed by the Magistrate, dated 04.10.2023, is also before this Court. As discussed above, the said order is patently illegal and the reasons thereof are perverse and contrary to material available on record. In such an eventuality, should this Court turn a blind eye and let the illegality and perversity perpetuate?
13. To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience, "M.S. Ahlawat v. State of Haryana & another" [AIR 2000 SC 168]. This Court can exercise powers conferred under section 561-A of Cr.P.C. to prevent abuse of the process of any court or to secure the ends of justice. The words "secure the ends of justice" and "abuse of the process of any Court" should be construed with due regard to rest of the provisions of Cr.P.C. Such powers can be exercised by this Court when alternate remedy is not available. The main purpose behind these powers is to prevent this Court from being rendered powerless and empowers it to make necessary orders if the facts and circumstances of a case warrant doing so.
14. It would be appropriate to examine whether given situation this Court can invoke its inherent powers vested in it under section 561-A Cr.P.C. in the light of the law laid down by the Supreme Court. For the sake of convenience, the relevant portions of the reported judgments of the Supreme Court are reproduced below.- Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another [PLD 1971 SC 677] "It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of M.S. Khawaja v. The State (PLD 1965 SC 287) opined that the ends of justice to secure which the inherent power may be invoked "have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions or investigating agencies within the scope of judicial process".
The State through Deputy Prosecutor-General, NAB v. Tariq Mohsin and others [2004 SCMR 1892] "The power as conferred upon this Court under section 561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute and the High Court, as has repeatedly been pointed out in various cases, should be extremely reluctant to interfere in a case where competent Court of law has just taken the cognizance of the matter. It is well-settled by now that section 561-A, Cr.P.C. confers inherent powers on the High Court to act in aid of advancement of interest of justice and to eliminate an action resulting in abuse of the process of the Court. It is permissible to exercise inherent powers on the satisfaction that a criminal proceeding or an action initiated in criminal proceedings, if allowed, would not advance the cause of justice and ultimately would tantamount to abuse of the process of the Court. In absence of such, satisfaction, the High Court was not advised to act merely on conjectures, surmises, artificial suggestions or speculations."
Altaf Hussain v. Abdul Samad and 3 others [2000 SCMR 1945] "Mr. Muhammad Ilyas Khan, learned counsel for the petitioner was at pains to persuade us that by quashing criminal proceedings against the private respondents High Court acted against the settled norms and principles laid down by this Court for quashment of case. He relied upon Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) expressing the view that the inherent jurisdiction given by section 561-A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been, provided by the Code itself. This Court observed that the power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. This case has been followed in subsequent cases laying down the principles for quashment of proceedings in exercise of the powers conferred on the High Court under section 561-A, Cr.P.C. Similar view was expressed in Fazal Karim v. State (PLD 1976 SC 461), Mahmood Saeed v. Amir Nawaz Khan (1996 SCMR 839) and State v. Asif Ali Zardari (1994 SCMR 798)."
Asfundyar and another v. Kamran and another [2016 SCMR 2084] "The remedy under section 561-A, Cr.P.C. is not an alternate or substitute for an express remedy as provided under the law in terms of sections 435 to 439, Cr.P.C. Jurisdiction under section 561-A, Cr.P.C. is neither alternative nor additional in its nature and is to be rarely invoked only to secure the end of justice so as to seek redress of grievance for which no other procedure is available."
Muhammad Ali v. Additional I.G. Faisalabad and others [PLD 2014 SC 753] "The law is quite settled by now that the jurisdiction of a High Court under section 561-A, Cr.P.C. can be exercised only in respect of orders or proceedings of a court and that the provisions of section 561-A, Cr.P.C. have no application vis--vis executive or administrative orders or proceedings of any non-judicial forum or authority. In the case of Emperor v. Khwaja Nazir Ahmed (AIR (32) 1945 Privy Council 18) interference by a High Court in the matter of investigation of a criminal case by the police by invoking the provisions of section 561-A, Cr.P.C. was declared to be unlawful and it was observed as follows: "In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offences is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad.
129. But that is not this case.
"Arif Ali Khan and another v. The State and 6 others" [1993 SCMR 187] "It is true that in the above cited case this Court clearly-laid down that a Magistrate while cancelling a registered criminal case, acting on the report of police submitted to him under section 173, Cr.P.C., though required to act judicially but his orders so passed are not amendable to revisional jurisdiction under sections 435 to 439, Cr.P.C. But this does not mean that where the Court reaches a positive conclusion in a case that a particular order passed by the subordinate criminal Court amounted to an abuse of the process of Court, it would be powerless to rectify the injustice. In the case before us, firstly, the application filed by respondent No.2 before the High Court was not under sections 435 to 439, Cr.P.C. but it was a petition under section 561-A, Cr.P.C.
Secondly, on the facts of the case the learned Judge in Chamber reached the conclusion that exclusion of the names of petitioners from the first challan submitted to the Court was a mala fide act on the part of police and the manner in which the orders were obtained from the Magistrate by the police for discharge of petitioners from the case clearly amounted to an abuse of the process of the Court. On these considerations, the learned Judge in Chamber in our view was fully justified in setting aside the order of Magistrate under section 561-A, Cr.P.C. and direct him to dispose of the case in accordance with the law. No interference is called for with the order of High Court. The petition is dismissed."
The Supreme Court in the case titled "Arif Ali Khan and another v. The State and 6 others" [1993 SCMR 187] had created an exception to Bahadur s case supra and had refused to interfere with had set-aside an order passed by the Magistrate discharging the accused persons from the criminal case. However, in Muhammad Ali's case, supra, the judicial opinion of the Supreme Court swung back to its earlier position rendered in Shehnaz Begum's and Bahadur's cases, supra.
Reliance is placed on the case titled "Ali Gohar and others v. Pervaiz Ahmed and others" [PLD 2020 SC 427]. Furthermore, a Larger Bench of the Supreme Court in the case titled "Younus Abbas and others v. Additional Sessions Judge, Chakwal and others" [PLD 2016 SC 581] after examining the facts and circumstances of the case, disagreed with the ratio of the judgment rendered in Muhammad Ali's case, supra.
15. The Supreme Court in Hidayatullah's case supra [2006 SCMR 1920], has held that it is settled principle of law that it is the discretion of the Magistrate concerned to pass an order under section 63 of Cr.P.C. to discharge the accused person, however, such discretion must be exercised justly, fairly and in case discharge order was passed by the Magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter and spirit of the law relating to discharge, the High Court has ample jurisdiction to interfere and set aside such an order under section 561-A of Cr.P.C. (Arif Ali Khan and others v.
The State and others, 1993 SCMR 187, and Muhammad Sharif and others v. The State and another, 1997 SCMR 304). It was further held that some of the powers of the Magistrate are administrative, executive or ministerial and he discharges these duties not as a Court but as persona designate. A Magistrate can effectively grant release to a person who may have been arrested or detained without sufficient cause. It has been further held that the High Court is vested with the authority under section 561-A Cr.P.C. to exercise the said power to secure the ends of justice, suppress the patent mischief if non-interference with the impugned order will perpetuate injustice, in case the Magistrate concerned had passed the order without judicial application of mind as per the law laid down in Eng. Bashir Ahmad v. Senior Superintendent of Police, Islamabad (2002 SCMR 239).
16. In the case in hand, the order passed by the Sessions Judge has been impugned whereby he has accepted the Revision Petition of the respondents. The order passed by the Judicial Magistrate is available on file and is equally relevant as the order passed by the Sessions Judge. In the light of the principles and law laid down by the Supreme Court in Hidayatullah's case supra, this Court can interfere under section 561-A Cr.P.C. with the order passed by the Magistrate under section 63 Cr.P.C. to secure the ends of justice and suppress the patent mischief if non-interference with such an order will perpetuate injustice.
17. In the case in hand, the Deceased died due to fire-arm injuries after four days of the incident in PIMS Hospital. He specifically attributed roles to the nominated accused. During remand recoveries had been affected. The report of the expert relating to the video tendered before the Investigating Officer by the nominated accused persons (if proved before the trial court) is, prima facie, not in their favour. The statement of the Deceased and the plea of alibi of accused persons are yet to be considered by the learned trial court after recording of evidence of the parties. The Magistrate ignored existence of the overwhelming incriminating material against the accused persons by recording perverse and flimsy reason that "no reasonable incriminating substances exist as against the accused persons". The Magistrate through his order under section 63 Cr.P.C. acted illegally and in essence decided the controversy of a murder case in summary manner. Such an order cannot be allowed to perpetuate. The victims of such an illegal order cannot be subjected to further pain and sufferings of cumbersome legal process on technical grounds by asking them to open another round of litigation and in the meanwhile let the beneficiaries of such an illegal order enjoy its fruits, whereas, on the other hand the investigations if delayed for indefinite period, there is probability of loss/destruction of evidence which can be collected by the investigating agency as soon as a criminal case is registered in respect of the commission of a heinous crime.
18. For what has been discussed above, the instant petition is allowed. The impugned order, dated 30.10.2023, passed by the Sessions Judge is hereby set aside. As held above, the order passed by the Magistrate dated 04.10.2023 is patently illegal on the face of it and if not set-aside, then rather than advancing the cause of justice the same would serve injustice and the very exercise of jurisdiction in this petition by this Court would amount to "abuse of the process of Court", therefore, the same is also set-aside. Consequently, the Magistrate is directed to reconsider the request submitted by the police for physical remand of the accused persons and thereafter pass an order strictly in accordance with law. The Investigating Officer is directed to ensure that the petitioners/accused persons tender appearance before the Magistrate on 22.12.2023 for further proceedings.
Note : The discussions contained in this order are restricted to the proceedings in hand only which shall not in any manner prejudice the case of either of the parties on merits before the learned trial court.