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Criminal Miscellaneous Application No. 497 of 1982, decided on 12th October, 1982.

‑‑-- Ss. 435/438/439/439‑A & 561‑A‑Revisional jurisdiction‑Exercise of, by Sessions Judge‑Quashment of criminal proceedings‑‑Sessions Judge omitting to exercise revisional jurisdiction for reason that by making a reference to High Court to quash proceedings he would be exercising powers in nature of S. 561‑A which powers do not invest in him‑Action of Sessions Judge, held, amounts to refusing to exercise jurisdiction‑Sessions Judge can examine case and report to High Court that prosecution' of case is manifest abuse of process of law or intends to defeat ends of justice and make recommendation that proceedings be quashed--‑Orders of Sessions Judge set aside in limine and case remanded for rehearing and passing reasonable orders on merits on assumption that he can make a reference to High Court under S. 438, Criminal Procedure Code if such method justified.

It is absolutely incorrect for a Sessions Judge to refuse to entertain a revisional application solely on the ground that the complaint was in relation to proceedings being in violation of law, and since the remedy would be to quash the proceedings, the jurisdiction could only be exercised by the High Court, and Sessions Judge would be precluded from making even a reference. No doubt in suitable cases, such a reference could be made, though such powers shall not be exercised lightly. It is, however, wrong to state that m cases, where complaint is made in regard to the wrong assumption of jurisdiction by the Magistrate, the Sessions Judge should not interfere because a remedy was available to the aggrieved party to invoke the jurisdiction of the High Court under section 561‑A, Cr. P. C. This amounts to refusing to exercise jurisdiction.

Shakruddin Mansoor for Appellant.

Falz Muhammad G. Soomro for Respondent.

Date of hearing: 12th October, 1982.

The brief facts of the case are that an application was filed by respondent Ali Asghar against the applicant Feroze Khan and one other under section 107/151, Cr. P. C. alleging that the applicant herein was likely to cause breach of peace. An order was passed by the Sub‑Divisional Magistrate, City, Hyderabad under section 112, Cr. P. C. in the following words:‑

"Whereas complainant Ali Asghar son of Khuda Bux Abro, has alleged in his complaint that you, the above‑named opponents had sold the Houses Nos. A/63 and A/65 to his wife in the sum of Rs. 60,000, and he made the part payment of Rs. 35,000 in respect of the said house and you executed an agreement in his favour. Further alleged neither you transferred the said house in his favour, nor made the payment of the amount of Rs. 35,000 which he had given you for that purpose. On his approach and demand you wanted to pick up quarrel with him in presence of Ali Akbar and threatened him of dire consequences."

On the above allegation, the applicant as well as Yousuf Khan were called upon to show cause, why they should not be directed to enter into a bond for maintaining peace for a period of 12 months in the sum of Rs. 5,000 with two solvent sureties.

Although a copy of the application has not been produced; the contents of the notice under section 112, Cr. P. C. would seem to indicate that on account of civil dispute between the parties the criminal Court was moved for proceedings under section 107/151, Cr. P. C.

The applicant was aggrieved and filed a Revision Application before the Court of Sessions Judge, Hyderabad, and the same was registered as Criminal Revision No. 30 of 1981. This Revision Application was summarily dismissed on 19‑5‑1982. On a reading of the said order it appears that the learned Sessions Judge did not take into consideration the facts of the case at all, nor did he take notice of the fact that on such allegation ‑the Magistrate had even passed a harsh order under section 117(3), Cr. P. C. and remanded the applicant to custody: I am, however, informed by Mr. Faiz Muhammad that in fact no order under section 117(3), was passed and perhaps the learned Sessions Judge is labouring under mistake by stating so. Be that, as it may, the Sessions Judge rejected the application under sec tion, 435/439, Cr. P. C. on the ground that the order under section 112, Cr. P. C. cannot be set aside by the Sessions Court under section 435, or section 439‑A, Cr. P. C., as it will amount to quashment under section 561‑A, Cr. P. C. which is exclusive jurisdiction of the High Court.

Mr. Shakruddin Mansoor has submitted before me that by stating the case thus, the Sessions Judge has declined to exercise the jurisdiction that was lawfully vested in him. It seems to mean that the learned Sessions Judge has completely overlooked the import and purpose of the provision contained in the Chapter entitled "of Reference and Revision" contained in the Code of Criminal Procedure. The Sessions Judge also appears to be labouring under a misapprehension that section 561‑A, Cr. P. C. confers any specific powers on the High Court for quashment of proceedings. In fact a bare reading of section 561‑A, Cr. P. C. would disclose that this provision invests the High Court with an inherent power to make such orders as maybe necessary to give effect to any order under the Code of Criminal. Procedure, or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Quashment, as such, is no: at all contemplated by sec tion 561‑A, Cr. P. C. and it is wrong to state that if a person invoked the Revisional jurisdiction of the Court of Sessions on the ground that the issuance of process itself was unjustified, the Sessions Judge should refrain from exercising jurisdiction under sections 435, 438 and 439 or 439‑A. Cr. P. C. for the sole reason that by making a reference to the High Court to quash the proceeding, the Sessions Judge would be exercising powers in the nature of section 561‑A, Cr. P. C. which powers do not vest in him. On the other hand under section 438, Cr. P. C. a Sessions Judge after calling for the record and examining the same can "report for the orders of the Court, result for such examination". By reference to the various provisions, the legal position is very clear that in suitable cases a Sessions Judge can examine a case and report to the High Court that the prosecution of that case is manifest abuse of the process of law or intends to defeat the ends of justice and then make a recommendation that the proceedings should be quashed. It was absolutely incorrect for a Sessions Judge to refuse to entertain a Revisional Application solely or, the ground that the complaint was in relation to proceedings being in violation of law, and since the remedy would be to quash the proceedings, the jurisdiction could only be exercised by the High Court, and Sessions Judge would be precluded from making even a Reference. No doubt in suitable cases, such a Reference could be made, though such powers shall not be exercised lightly. It is, however, wrong to state that in cases, where complaint is made in regard to the wrong assumption of jurisdiction by the Magistrate, the Sessions Judge should not interfere, because a remedy was available to the aggrieved party to invoke the jurisdiction of the High Court under section 561‑A, Cr. P. C. This, in my view, amounts to refusing to exercise jurisdiction.

In these circumstances, I will set aside the order of the learned Session Judge, dismissing the Revision Application in limine, and direct him to rehear the Revision Application and pass a reasonable order on the merits, on the assumption that he can make a Reference to this Court under section 438, Cr. P. C. if such method was justified. The Revision Application is disposed of in terms of the above order.

Mr. Shakruddin states that warrant has been issued by the Magistrate against the applicant. The applicant to appear before the Sessions Court within two weeks from today, and in the meantime, he shall not be arrested.

Appeal dismissed.

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