' The order dated 19-1-1998 has been impugned with a prayer to get it set aside, inter alia on the ground that if there was some variation in-between the list of accused persons not arrayed in the writ petition and subsequently we'- impleaded as respondents then the order of acquittal should have been confined to the extent of the accused persons not arrayed as accused in the writ petition. The learned Judicial Magistrate recorded acquittal against all the accused persons, therefore, he has illegally exercised his jurisdiction. Further that the order of acquittal is rather too premature because after summoning the respondents the learned trial Magistrate should have recorded some evidence and to acquit them at this stage is contradiction in itself i,e,, on one hand they have been summoned and found prima facie guilty and at the same time they have been acquitted without any further development.
2. The contentions raised do contain some substance because non-impleading of some persons as accused in writ petition and subsequently including them in the private complaint would give rise to the impression that subsequently added accused persons may have been included with a mala fide intention but the remaining accused persons against whom the allegations were being made from the very beginning could not be extended the benefit, especially when the law on the subject has undergone a substantial change i,e,, Falsus in uno falsus in omnibus is no more of universal application. Similarly, the contention that on one hand the accused persons have been summoned to face trial and after their appearance without any further development they have been ordered to be acquitted, on the first impression appears to be an exercise of jurisdiction contradictory by itself. But a deeper probe and appreciation of both the pleas has revealed that the learned trial Magistrate did not commit any error in recording acquittal under section 249-A, Cr. P . C .
3. No doubt the accused persons who had been impleaded as accused throughout and against them allegations have. Been levelled consistently had to be placed in different categories from those who were introduced for the first time at the time of institution of private complaint. Had the learned trial Magistrate acquitted the accused persons merely on the basis of their implication out of mala fide then this argument would by itself have been valid and the impugned order could be struck down. The learned Magistrate although took into consideration this aspect of the case but he proceeded further and acting on the principle that in case, he after taking into consideration the whole material comes to the conclusion that ultimately there are no chances of conviction of the accused persons and continuation with trial would amount to wastage of time then the exercise of jurisdiction under section 249-A, Cr.P.C., appears to be valid and justified. Section 249-A, Cr.P.C., has in fact been included and incorporated in Code in order to save the accused persons from agony and ordeals of a mock trial. If the Court after taking into account the relevant material bona fidely considers that even if the possible evidence is brought on the record by the prosecution, the same would not be sufficient to warrant conviction, exercise of jurisdiction under section 249-A, Cr.P.C., would be valid. As noted above the very purpose and the idea behind incorporation of this section is that the power 'may be exercised at any time by the trial Court and if it is found that continuation with the trial would amount to wastage of time or it will be just a futile exercise then the order under section 249-A, Cr.P.C., acquitting the accused persons can justifiably be passed, rather such order should be passed and the power should be exercised in aid of justice. Exercise of this power is all the more necessary keeping in view the number of unnecessary pending cases and piling-up of the undecided matters. However, this power has to be exercised with care and caution and in case there is possibility of receipt of evidence sufficient to warrant conviction then this power has not to be exercised merely on artificial presumptions.
4. Moreover, insertion of section 249-A, Cr.P.C., or 265-K, Cr.P.C., became essential because warrant case procedure has been dispensed with and now all the criminal cases are tried under summons case procedure. Under former procedure after recording of prosecution evidence the accused persons had an opportunity to address arguments and as such to bring on record his view-point and the trial Court could be convinced not to frame charge and the order of discharge was made in that event. But under the prevailing procedure the charge is framed straightaway by relying upon the allegations contained in the report or other indictment. In view of this changed procedure it becomes necessary that the trial Court may be invested with the power to discontinue unnecessary and mala fide prosecutions and to save the accused persons from the agony or ordeals of futile trial.
5. As regards the second contention that the Magistrate on the one hand after recording preliminary evidence ordered to summon the accused persons but after their appearance without any further development or in absence of any material brought on record by the accused persons acquit them, their acquittal as such would be contradictory to the earlier order of summoning them. No doubt the arguments appear to be impressive and has weight as well, but one important aspect cannot be lost sight. That is during recording of preliminary evidence the accused persons were not present before Court, therefore: they had no opportunity to cross-examine the witnesses or to place before the Court their interpretation of various pieces of evidence. If after appearance of the accused persons the evidence is reappraised by taking into consideration their view-point as well, and after such appraisal the Court comes to conclusion that the evidence or material was insufficient to warrant any conviction, mere fact that the accused persons had been summoned on the basis of that evidence would not by itself be sufficient to continue with the trial to the detriment of the accused persons. In the present case as well, the learned Magistrate when re- evaluated the evidence in presence of both the parties by taking into account interpretation of evidence put forward by both the parties, he treated the same as insufficient to culminate into conviction. It was, therefore, observed that it would amount to abuse of process of Court to continue with the trial. He rightly observed that if a private complaint is unjustifiably continued may tantamount to play in the hands of the complainant as his tool, and the accused persons would be made to suffer agony of trial for no fault on their part.
6. The impugned order when viewed in the light of the aforesaid principles the evidence and the material brought on record and also the material likely to be produced by the prosecution, insufficient to end up with conviction, appears to be just and proper. The learned trial Magistrate has also relied upon the principles and guideline provided by the decisions cited by him i,e,, (i)
"Abdul Sattar v. The State" (1991 PCr.LJ 2054), (ii) "Ali Gohar Khan v. The State" (1989 PCr.LJ 1965), and
(iii) "Syed Maqbool Hussain v. Syed Fayyaz Muhammad" (1995 PCr.LJ 1257) whereby similar views were expressed. The impugned order of acquittal is, therefore, found just and proper and does not call for any interference or alteration being in conformity with the law laid down in the above- referred cases. Consequently, this petition fails and is hereby dismissed.