' This is a petition under section 417(2), Cr.P.C., for grant of Special Leave to Appeal against the order dated 15-2-1993, of the learned Assistant Commissioner/Sub-Divisional Magistrate, Pattoki, whereby he dismissed the complaint of the petitioner filed against the respondents under section 380/457, P.P.C. And acquitted the respondents.
2. The facts giving rise to this petition are that the petitioner lodged F.I.R. No,366/91, dated 5-6-1991, under section 380/457, P.P.C. And section 14 of Ordinance VI of 1979, at Police Station Pattoki against the respondents. The police after investigation finding the respondents innocent got them discharged and recommended for taking action under section 182, P.P.C., against the petitioner.
Aggrieved by that order, the petitioner filed the aforesaid complaint. The learned Magistrate after recording the preliminary evidence summoned the respondents under section 380/457, P.P.C. Vide his order dated 19-9-1992. On 11-11-1992, the respondents filed an application under section 249-A, Cr.P.C., before the learned Magistrate, for their acquittal, which was accepted vide impugned order.
3. Learned counsel vehemently contended that provisions of section 249-A, Cr.P.C. Are not applicable to the complaint cases; hence the impugned order being nullity in the eye of law is coram non judice. Placed reliance on 1991 M LD 951.
He further contended that once the trial Magistrate has summoned the accused-respondents, then he has no jurisdiction to acquit them without recording any evidence. The impugned order thus suffers from the patent illegality, so it is a fit case in which leave to appeal be granted.
4. I have heard the learned counsel at length and have perused the record with his able assistance.
5. In order to properly appreciate the contentions of the learned counsel, it is necessary to refer to the relevant provisions of the Code of Criminal Procedure (hereinafter referred to as the 'Code).
' According to the Scheme of the Code, section 190 is the only section, which confers jurisdiction on the Magistrate for taking cognizance of the case. It contemplates three situations for taking cognizance, which are---
(a) upon receiving a complaint of facts which constitutes such offence;
(b) upon a report in writing of such facts made by any police officer; and
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
' Reverting to the instant case, cognizance of a complaint is taken by the Magistrate under clause
(a) and procedure for disposing of criminal complaint is contained in Chapter XVI. Section 200 of the Code lays down the procedure for taking cognizance on a complaint whereas section 202 of the Code speaks of referring the complaint to a Court or the police, for further inquiry or investigation. Section 203 of the Code, relates to dismissal of complaint, if in the opinion of the Magistrate, as a result of inquiry or investigation, there is no sufficient ground for proceeding, of course, he shall have to give briefly his reasons for so doing; whereas section 204 of the Code authorises the Magistrate to issue process, if he comes to the conclusion that there are sufficient grounds for proceeding with the complaint, but this view formed by the Court while summoning an accused person is of tentative nature and the Court does not decide the lis in doing so.
' It may be observed here that if section 204 is read with section 249-A, Cr.P.C., one thing is very much clear that the assessm ent of the learned Magistrate made under section 204 of the Code is of tentative and prima facie nature, whereas under section 249-A of the Code, the learned Magistrate would decide the lis after hearing both the parties and considering the material placed before him, either before framing the charge or after framing the charge and before recording the evidence, in order to come to the conclusion whether the charge is groundless and whether there is any possibility of the accused being convicted of any offence. If these two conditions are fulfilled, then, of course, the Magistrate is competent to pass an order of acquittal at any stage of the proceedings.
5. I have considered the case on merits and I find that the law cited by the learned counsel is not applicable to the facts of this case and is distinguishable. The learned counsel who appeared in support of the case referred to above did not bring this provision of law to the notice of the learned Judge that while exercising its power under section 204 of the Code summoning an accused on a criminal charge, the opinion formed by the Magistrate is of tentative nature, which can be reconsidered at any stage and it cannot be termed as judgment in the eye of law as contemplated by section 369 of the Code. The Magistrate after hearing the arguments and perusing the record still is competent to form his own opinion to the effect whether the charge is groundless or whether there is any possibility of conviction in the case. If these two conditions are fulfilled and the trial Magistrates are debarred from exercising powers under section 249-A, in complaint cases, then the insertion of section 249-A, of the Code would become redundant and the object for which amendment was made by the legislature would be frustrated. Section 249-A of the Code was added with a view to lighten the burden of the High Court as invariably where no case was made out, the accused had to move the High Court under section 561-A of the Code for quashment of the proceedings, which mode apart from being cumbersome was expensive and also increased the burden of the High Court. The legislature amended the law with a view to give power to the trial Magistrates under section 249-A of the Code to acquit an accused person at any stage of the proceedings, provided they come to the conclusion that the charge is groundless or there is no probability of the accused being convicted of any offence. Similar powers have been given to the Sessions Judges under section 265-K of the Code.
6. Even on factual plane, I find that the occurrence took place on 28th/29th April, 1991 and the FIR was lodged on 5-6-1991, after more than one month and this delay remained unexplained. Delay, per se, coupled with the admitted background of enmity is sufficient to show that the proceedings under the F.I.R. Were being taken with ulterior motive and not for the advancement of justice and this finding was further fortified by the police, which came to the conclusion that the FIR was false and frivolous and recommended action against the complainant under section 182, P.P.C.
7. In view of the above discussion, the impugned order is not open to any legal exception, because it is based upon sound appreciation of factual as well I c as legal position; hence this petition being devoid of force is dismissed in limine.