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Criminal Revision Applications Nos. 64 to 70 of 1974, decided on 21st March 1975.

‑‑‑ Ss. 435, 433 & 439‑Revision, scope of Reference under S. 439 not confined to cases enumerated in S. 435 but also open to cases not covered by it.‑‑[Revision (criminal)].

On plain reading of section 438 it does not seem to confine a report under that section to those cases only where the High Court can act under section 439, Cr. P. C. There is also no indication in the language that the powers are not to tae exercised and a report is not to be made in cases where the High Court can exercise its posers of interference, otherwise, than in its revisional jurisdiction. The use of the word otherwise' in the section itself widens the scope of a reference and would empower making of a report even in cases that are not covered by section 435, Cr. P. C. There have been cases in which the High Court has interfered in matters in which no appeal has been filed by the person having the right to appeal, but a reference was made under section 438, Cr. P. C. and the impugned orders set‑aside in revision under section 439, Cr. P. C. It is well settled law that the High Court can interfere to correct illegalities. irregularities and improprieties of proceedings or orders by exercising its revisional jurisdiction suo motu and in that event the concerned party not having filed an appeal cannot operate as a bar to the exercise of such jurisdiction. Similarly, while considering the revision filed by a convict whose appeal against his conviction is dismissed, the High Courts have set aside the convictions of the other co‑convicts who did not even care to file any appeal against their convictions. The bar under section 439(5) operate only against that person himself, who had a right of appeal but did not avail of it.

Louis Philip Dias v. Mahadev Barik Raut 35 B L R 1054 and Raman Balan and others v. State A I R 1960 Ker. 263 rel.

----Ss. 118 & 123 read with Ss. 439 & 561‑A‑Security proceedings Quashment ‑ Proceedings commenced and terminated on same date on basis of an alleged consent of applicant‑No opportunity afforded to defend case and security demanded onerous ‑ Contention that applicant having failed to avail remedy by way of appeal against order under S. 118, subsection (5) of S. 439 would come in way and operate as bar to exercise of revisional jurisdiction‑Held: Inherent powers of High Court can justifiably be invoked to interfere and order being unjust and untenable could not be allowed to continue‑ Proceedings quashed.‑‑[Revision. (criminal)].

Louis Philip Dias v. Mahadev Barik Paut 35 B L R 1054 rel.

G. M. Qureshi for Applicants.

Osman Ghani Rashid, Asstt. A.‑G., Sind for the State.

Date of hearing : 20th February 1975.

In all these applications the orders under section 123, Cr. Pi C. passed by the S. D. M. Moro on 20‑3‑1974 are challenged. Revision applications were filed in each case against the said orders before the Court of Additional Sessions Judge, Nawabshah, who by his order dated 11‑4‑1974 bad dismissed the same. As all these revision applications proceed on similar facts arc: arc, disposed of by this judgment.

2. The facts in each case are that on 203‑1974, the S. H. O. Police Station Qazi Ahmad had filed an individual complaint under section 110/55, Cr. P. C. in the Court of S. D. M. Moro in which allegations were levelled against the applicants which amongst others, said that their remaining out of jail would be hazardous to the community and that they had on that account to be arrested under section 55 of the Cr. P. Code and had been sent up in the; interest of justice. A prayer for passing an order under section 117(3) was also made in these complaints. On the same dare I.e. the 20 h March 19i4 orders under section 112, Cr. P. C. were framed in the terms of the complaint filed before the S. D. M. in all these cases and the applicants were required to execute a bond for keeping good behaviour for a term of 12 months with two sureties each solvent in the sum of Rs. 5,000, further requiring the sureties to be men of means, residing within the radius of five miles from the applicants and to be able to have control over the activities of the applicants to the satisfaction of the Court i.e. S. D. M. Moro. It appears that these orders under section 112, Cr. P. C. being read over to the applicants, they were asked whether they wanted to plead guilty or claim an enquiry. The orders passed under the hand of S. D. M. Moro on the same date i e. the 20th of March 1974 show that on such query being made from the applicants, they pleaded guilty and claimed no enquiry and stated that they shall not examine any witnesses in defence and shall furnish the sureties as required. The record of these cases further discloses that the Magistrate had examined one witness Muhammad Nawaz S. H. O. Police Station Qazi Ahmed who was the complainant in these cases. This examination also took place on the same date i.e. 20‑3‑1974. In his deposition this witness repeated what he had said in the complaints and claimed to have challaned the applicants in each case after conducting an enquiry. There is an endorsement to the effect that the applicants did not cross‑examine this witness although chance was given to each of them. In the circumstances order under section 118, Cr. P. C. was passed by the S. D. M. in each case which incorporated the allegations made in the complaint, the fact of the reading over of the 112, Cr. P. C. order and the admission of each applicant with regard to these allegations and further that no enquiry was claimed bar any. It further goes on to say that the prosecution examined Muhammad Nawaz Khan, S. H. O. Qazi Ahmad, who supported the allegation made in the complaint and whose evidence was not challenged. As a result, an order which is common, was passed and which reads :‑

"In view of the prosecution evidence which is coupled with the admission of the respondent, I have no alternative, but to accept the plea of the respondent. I accordingly order him to execute a bond for keeping good behaviour for the term of 12 months with two sureties each solvent in the sum of Rs. 5,000 and that surety be a man of means, respectable Zamindar, residing within the radius of five miles and be able to control his activities to the satisfaction of this Court. In case of failure he shall undergo R. I. for 12 months under section 118, Cr. P. C. or unless the required security is furnished whichever may be earlier."

Again or; the same date i.e. the 20th of March 1974 a further order was passed by the S. D. M. Moro in the following terms :‑

"Order under section 123, Cr.P. C.‑Sufficient opportunity was given to the respondent to furnish the security required of him, but he has failed to furnish the same, as such he is adjudged to undergo R. I. For 12 months and is remanded to custody under warrant of commitment.

Signed Abdul Khaliq Soomro

S. D. M. Moro,"

Separate revision applications tinder sections 435, 438, Cr. P. C. were Moved before the Court of Sessions against these orders, but the Additional Sessions fudge dismissed the same as misconceived in view of a definite provision in the Cr. P. Code providing for appeal against the order passed under section 118, Cr. P. C. In his view when a remedy was available by way of appeal, the Revisional Court would not grant any relief unless the petitioners had exhausted this remedy. Having failed at that level the applicants approached this Court by filing applications under sections 439 and 561-A of the Cr, P. Code.

4. The learned counsel who appears for the applicants in all these cases has raised several contentions to attack the order of the S. D. M. which he has passed under section 123, Cr. P. C., and those may be enumerated as under :‑

(1) That there was no appeal provided for against an order of imprisonment passed by the Magistrate in default of furnishing security and only a revision could be filed.

(2) That the proceedings under section 110, Cr. P. C. were initiated against the applicant and completed on the same day I.e. the 20th of March 1974 which action in itself required interference by the High Court in exercise of its revisional jurisdiction or in the alternative by using its inherent powers.

(3) That the whole proceedings and the final order were based upon the so‑called consent of the applicants which was treated as a plea of guilt and thus amounted to illegal exercise of powers by the S. D. M.

(4) That the findings of the Sessions Judge that the failure to exhaust the remedy of appeal against the order under section 118, Cr. P. C. was a bar to the exercise of revisional jurisdiction as provided in section 439(5) of the Cr, P. Coda and on that account declining to make a report to the High Court was incorrect and erroneous.

(5) That even if section 439(5) of the Cr. P. Code be treated as a bar to the exercise of revisional jurisdiction this Court had ample powers under section 561‑ A to set‑aside the orders of the S. D. M. and also the proceedings as a whole as the same amounted to abuse of the process of this Court.

5. It may be stated that the learned Assistant A. G. who appeared for the State objected to the competence of this Court interfering in revision in view of the specific bar provided under section 439 (5), Cr. P. Code; although in his view that proceedings otherwise have not been conducted properly and in accordance with the law as interpreted and expressed in decisions given in various authorities by this Court.

6. Now obviously in this case no appeal was filed against the orders under section 118, Cr. P. C. passed by the S. D. M. although that was a remedy available to the applicant. The orders under section 123, Cr. P. C. proviso for the final penalty that is imposed by the Court on account of failure with the compliance of requirement of section 118, Cr. P. C. This penalty is in the form of imprisonment which in terms of section 397 of the Cr. P. C. is termed as a sentence, but there is no appeal against this sentence of imprisonment which is awarded on account of non‑compliance of section 118, Cr. P. C. Chapter 31 of the Criminal Procedure Code which deals with appeal does not provide for any right of appeal against an order of sentence passed under section 123, Cr. P. C. A revision against this penalty is therefore competent but the important point does arise whether a person who attacks an order of a Magistrate under section 123, Cr. P. C. in revision, can by so doing also attack the legality, regularity or propriety of an order under section 118, Cr. P. C. which in fact forms the basis, from which the consequence of an imprisonment under section 123, Cr. P. C. results. In other words while legitimately invoking the revisional jurisdiction of the High Court in attacking the consequential orders a person will not be allowed to criticise the original basic order on account of the bar provided in section 439(5), Cr. P. C. Since a revision against an order under section 123 is the only remedy available and is competent, the learned Assistant A. G. did not show as to holy clause 5 of section 439 of the Cr. P. Code will operate as a bar at least to such a revision which is directly filed in the High Court.

7. Since it is obvious that a revision was competent before this Court, whatever he the scope of that revision, should the Sessions Court have refused to make a reference to the High Court on the basis of the bar under section 439(5) as he has done 7 Section 438 which deals with the power of the Sessions Court to make a reference to the High Court reads as under :‑‑

"438.‑(1) The Sessions Judge or District Magistrate may, if he thinks fit, on examining under section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence be reversed or altered, may order that the execution of such sentence be suspended, and, if the accused is in confinement that he be released on bail or on his own bond.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him."

On its plain reading it does not seem to confine a report under that section to those cases only where the High Court can act under section 439, Cr. P. C. There is also no indication in the language that the powers are no: to be exercised and a report is not to be made in cases where the High Court can exercise its powers of interference, otherwise, then in its revisional jurisdiction. The use of the word 'otherwise' in the section itself widens the scope of a reference and would empower making of a report even in cases that are not covered by section 435, Cr. P. C. There have been cases in which the High Court has interfered in matters in which no appeal has been filed by the person having a right to appeal, but a reference was made under section 438 Cr. P. C. and the impugned orders set‑aside in revision under section 439., Cr. P. C. In fact even in the present cases if a reference had been made by the Court of Sessions under section 538, Cr. P. Code, the learned Assistant A.‑G. states, that he could not have raised the objection under section 439(5) as he now has done, and he is very much right in so saying. It is well settled law that the High Court can interfere to correct illegalities, irregularities and improprieties of proceedings or orders by exercising its revisional jurisdiction suo mote and in that event ills concerned party not having filed an appeal cannot operate as a bar to the exercise of such jurisdiction. Similarly, while considering the revision filed by a convict whose appeal against his conviction is dismissed, the High Courts have set‑aside the convictions of the other co‑convicts who did not even care to file any appeal against their convictions. The bar under section 439(5) operates only against that person himself, who had a right of appeal but did not avail of it.

7. Now in the first place since a revision against an order passed under section 123, Cr. P. C. was itself competent, I am inclined to think that the Additional Sessions Judge was not right in withholding the making of reference to the High Court on the mere consideration that the laugh Court would not interfere as no appeal had been filed against the order under section 118, Cr. P. C. Particularly so when it was so obvious on the basis of the record before him and that the order under section 118, Cr. P. C. had been the result of the so‑called consent of the applicants in proceedings which commenced and were concluded on the same date. Even the type of the security demanded in each case was onerous, a practice condemned by this Court repeatedly.

In a D. B. case Louis Philip Dias v. Mahadev Barik Raut (35 B L R 1054), where an abjection had been raised about the powers of the Sessions Judge making a reference in a case, in which the High Court could not exercise its powers under section 439 it was said

"Under section 438 of the Criminal Procedure Code, the Sessions Judge can, on examining the record of any proceedings under section 435, report fur the orders of the High Court the result of such examination, and if he can make such report to this Court for any action to be taken by it under section 439 of the Code in its revisional jurisdiction. I do not see why the Sessions Judge cannot make a similar report and move the High Court for interference under the Code itself under another section, viz., section 561‑A in its inherent jurisdiction. It does not matter whether this Court interferes in its revisional jurisdiction or in its inherent jurisdiction so long as it is moved by the Sessions Judge. Therefore, I think section 438 is not limited. To the interference of the Court under section 439 but it can interfere under the wide power which it possesses, whether under section 439 or section 561‑A."

The same view has been expressed in another case from the Indian jurisdiction in the case of Raman Balan and others v. State (A I R 1960 Ker. 263), in which case also the Sessions Judge had declined to make a reference to the High Court under section 438, Cr. P. C. on the ground that the power of interference of the High Court resided in section 561‑A and not in section 439 of the Cr. P. Code. The learned Single Judge who decided the matter which came before him is a direct revision said :‑

"There is nothing in section 438, Cr. P. Code which confines a report under that section to cases where the High Court can act under section 439 and makes the section inapplicable to cases where the H. C. has to act under section 561. "

8. This Court has in a number of cases interfered with orders under section 118, Cr. P. C. and quashed the same under section 561‑A on the Around that the same are passed on the same day as the order under section 112, Cr. P. C. or on the basis that the consent of the accused was. treated as a plea of guilt and the order passed without holding any further enquiry. In such circumstances I strongly feel that cases should be brought to the notice of the High Court by making a report under section 438, Cr. P. C. and withholding any such patently unlawful action would not be conductive to the interests of justice. In this context, I may also refer, to a case reported as P L D 1950 B J 60. In that case a Sessions Judge had, heard and allowed the appeal of a convict when the other co‑convicts who had not appealed ; they filed their revision applications before him much after the lapse of the period of limitation for appeal. The Sessions Judge simply released them on bail. The successor in office of this Sessions Judge: forwarded the revision petition to the High Court, without making any recom mendations. A preliminary objection was raised under section 439(5),. Cr. P. Code against this revision as being barred and after considering case law it was held by the learned Single Judge :‑

"The law is well established that on reference under section 438, the. High Court shall not disallow the hearing of the case merely on the ground of lapse of the limitation period fixed by law for the institution, of an appeal, and may in exceptional cases on the presentation of a revision exercise its discretionary powers under section 439 in order to set aside serious miscarriage of justice, even though the aggrieved party had an opportunity of taking the matter to an Appellate Court and has not done so."

Now the application in this case has been made under section 439 as well as under section 561‑A of the Criminal Procedure Code. This practice has however been deprecated anti as stated it P L D 1969 Kar. 22, such pleadings were termed as inelegant and defective. But learned Judge who decided that case further said

"The question, therefore, is whether the application should be dismissed merely because inelegant pleadings are to be deprecated. In my opinion, the practice of using the Criminal Procedure Code for setting disputes is to be deprecated much more. However, I have held that the orders of the Magistrate in the instant case are without jurisdiction, therefore, these illegal orders cannot be upheld merely because of inelegant pleadings."

This was a case in which proceedings under section 145, Cr. P. C. had beers challenged by way of an application in the title where of both the: sections 439 and 561‑A had been quoted.

9. The fact, however, remains, and which has net been denied by the: learned Assistant A.‑G. who appeared for the State that the proceedings as a whole taken before the Magistrate under section 110; Cr. P. C. which form the real subject‑matter of the present application are undoubtedly irregular and have got to be set aside on that. account. If" authority be needed at all I would refer to criminal reference 144 of 11973 & case decided by this Court on 30th May 1974 wherein it was stated :‑

"(3) More than once it has been held that the respondent must be given proper opportunity to cross‑examine witnesses and, in the absence of sufficient explanation, I cannot but think that proceedings commenced and concluded in one day could hardly have given such an opportunity. The respondent admittedly was un-represented and in fact he now claims that he did not understand the proceedings at all and that he never submitted to an order against himself.

(4) There can be no question of a plea of guilt in such cases ; the respondent is not charged with an offence in regard to which alone such a plea can be recorded. Nor is an order under section 118 Justified by the mere consent of the respondent.

(5) In these circumstances the learned Advocate‑General candidly conceded that the order was untenable and I, therefore, accept the reference and set aside the order. If the respondent is in custody on account of this order and his failure to furnish a surety he shall be forthwith released.'

10. It may be mentioned that even this was a case in which a revision had been filed before the Sessions Court against an order passed under section 118, by the S. D. M. and in consequence a reference under section 438, Cr. P. C. had been made to the High Court.

Obviously, the above case is on all fours with the cases which I am, presently dealing with. The admitted position is that the proceedings had commenced and were terminated on the same date, upon the basis of an alleged consent of the applicant. No opportunity was given to the applicant to defend their case and the security demanded was admittedly onerous. There are cases in which even if the bar under clause (5) of section 439 did in fact operate and came in the way of the exercise of revisional jurisdiction, the inherent powers of the High Court can justifiably be invoked to interfere and quash not only the orders under section 123 but also the whole proceedings resulting in order under section 118, Cr. P. C. because a paten injustice could not be allowed to continue, and a wrong action perpetuate on account of technicalities. In the circumstances I order that the whole proceedings and the orders passed against the applicants being untenable in law are hereby quashed.

Proceedings quashed.

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