' This petition under section 561-A, Cr.P.C. Has been moved for quashment of the order, dated 22- 10-1992 passed by a 1st Class Magistrate, Multan whereby he discharged respondent No,1 an accused in case under section 324, P.P.C. Who was facing trial before Magistrate Section 30, Multan.
2. The brief facts of the case are that a case under section 324, P.P.C. Was registered against respondent No,1 on 7-3-1992 at the instance of petitioner. After the completion of the investigation the respondent was challaned to face the trial before a Magistrate Section 30, Multan. The copies of the statements under section 161, Cr.P.C. Were delivered on 29-9-1992, the learned trial Court framed charge against him on 12-10-1992 and fixed the case for evidence for 7-11-1992. In the meanwhile, a discharge report was prepared by the concerned police which was placed before respondent No,2, a Magistrate 1st Class, Multan who passed discharge order under attack on 22- 10-1992.
3. The learned counsel for the petitioner contends that the respondent No,1 was facing trial before Magistrate Section 30, Multan who had already taken cognizance of the matter and the trial had commenced, therefore, respondent No,2 was not competent to interfere in the matter and pass the impugned order. The only course open for respondent No,2 was to refer the matter to the learned trial Court.
4. The learned Additional Advocate-General on behalf of the State has supported the contention of the learned counsel for the petitioner. According to him the discharge order is nullity in law which is bound to be set aside. The learned counsel for respondent No,1 had submitted that there is no bar for submission of supplementary challan pending trial. However, he has not been able to meet the arguments of the learned counsel for the petitioner that the cancellation report or the supplementary challan as the case may be was to be placed before the trial Court and not the Illaqa Magistrate.
5. There is no cavil to the proposition that after taking of the cognizance and commencement of the trial, respondent No,2 was not competent, to pass any order in the case. The proper course for him was to refer the matter to the learned trial Court and not to act on the advice of police to pass the discharge order. It appears that the respondent No,2 passed the impugned order in a mechanical manner which fact he admitted while appearing before this Court on 24-2-1993. He stated that due to rush of work he could not attentively look into the file and passed the order in routine. The A.S.P. Haram Gate, Multan also frankly conceded that the report was inadvertently placed before respondent No,2 for want of proper advice. It is a settled principle that even an executive order if passed by a Magistrate, should be passed in a manner to fully satisfy the test of judicial scrutiny. The office of the Magistrate even in executive capacity is known as a Court by a common man and therefore, any order passed by him either of executive or of judicial nature is deemed to have been passed by a Court of Magistrate and therefore, a Magistrate should discharge his function most fairly, honestly and with full care and caution. The respondent No,2 while passing the impugned order has not shown the required vigilance and responsibility in discharge of his duty.
6. Police Officer or a Magistrate does not enjoy unlimited power to deal with a case according to his wishes. No doubt, a supplementary challan/report can be submitted but not at the cost of frustrating the proceedings before a competent Court or to misuse the process of law and Court.
Similarly, Magistrate can exercise power, with certain limits but not in the manner as has been done in the present case. There is a complete procedure provided in the Cr.P.C. To meet all situations, and after the commencement of the trial it is only the trial Court which can pass an appropriate order in the case and not a Magistrate having no jurisdiction to deal with the case. The law provides the remedy of filing of an application under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. At any stage before the trial Court and also invoke the jurisdiction of High Court under section 561-A, Cr.P.C. In appropriate cases against an order passed by the trial Court at an interlocutory stage.
The procedure for trial 9 provided in Criminal Procedure Code does not permit a Magistrate to pass discharge order in a case pending for trial before another Court. The order passed by respondent No,2 whereby he discharged respondent No,1 from the case pending trial before Magistrate Section 30, being patently illegal is hereby quashed.