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Criminal Revision No. 25, dated 14th February, 1950, decided on‑7th May, 1950, against the order of Magistrate, Section 30, Rahimyar Khan.

S. 439 (5)‑Revisionary discretion may be exercised by High Court in exceptional cases even if no appeal preferred within time.

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.

33 I C 37 ; A I R 1931 Lah 145 ; A I R 1925 Mad. 239 ref.

The facts are that six accused were convicted under section 395, Indian Penal Code by the trial Court .and were sentenced each to nine months' rigorous imprisonment in addition to fine of Rs. 100, in default of which to serve further rigorous imprisonment for three months. One of the convicted persona, namely Khuda Bakhsh, appealed to the Sessions Judge, Rahimyar Khan and on the acceptance of hi; appeal he was acquitted. The other accused persons kept silent when on the 13th February, 1950. Amir Bakhsh, Muhammad Alim and Faiza, obviously after tire lapse of period allowed for appeal, filed a revision petition before the Sessions judge with the result that they were released on bail. The successor in office to the Sessions judge , who had acquitted Khuda Bakhsh and had released the petitioners on bail has forwarded the revision petition without his recommendations. The learned Government Advocate has taken a preliminary objection‑under section 439 (5) which reads in the following words :--

" (5) where under the Code an appeal lies and no appeal is brought, no proceedings byway of revision shall be entertained at the instance of ,the party who could have appealed "

It is contended by the learned Government Advocate that the revision petition has not been reported by the learned Sessions Judge in accordance with the provisions of section 438, Criminal Procedure Code by which lie was required to append a note of his examination for the reverse or alteration of the sentence and therefore the petition did not amount to a Reference by the Sessions judge but was revision petition at the instance of the petitioners. Apart from the question whether the present petition is a revision or a reference, it is clear that the High Court can interfere to cancel the, order of the trial Magistrate on reference under section 438, Criminal Procedure Code. In a case reported in 33 I C 37, Mr. Justice Piggot held in the following manner:‑ --

" That although the accused, not having appealed against the order requiring him to furnish security could not ask the High Court to take up in revision the question of the propriety of the order, yet the High Court, bad on reference by the Sessions judge to deal with the entire question and to set aside the proceedings of the Magistrate as being in contravention of the provision of the law "

Similar principle of law was enunciated by justice Tek Chand, in A I R 1931 Lah. 145. The Division Bench of Madras High Court went a step further and held in 1925 Mad. 239

"Though ordinarily no revision will lie while applicant has not utilised opportunity to appeal, yet where the result of disallowing' revision would be to sustain long sentence of imprisonment for what the High Court views to be smaller offence deserving much lighter punishment revision may be allowed ".

In that case revision petition was presented directly to the High Court after the period for appeal had expired. The law well established that on reference under section 438, the High Court shall riot 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. In the present case the learned Sessions judge had two alter natives open to him under section 438, Criminal Procedure Code. He could either reject the revision petition or submit it to the High Court. Since he has referred it to the High Court, his very act of doing so makes his intention clear that he considered it a fit case for the consideration of the High Court under section 439, even though he has ignored the more advisable method of referring it of his recommendations Hence there can be no doubt that the report of the learned Sessions judge is a reference and it should be dealt with accordingly by the High Court.

It is conceded by the learned Government Advocate that there is no case under section 395, Indian Penal Code against the petitioners and the other two accused persons (Rahmoo and Abdul Rahman) serving their imprisonment in jail. It is explained by the learned Government Advocate that the appeal of Khuda Bakhsh, accused was accepted by the learned Sessions judge for the following reasons :‑--

(1) The F. I. R. yeas lodged after delay of 25 days,

(2) The evidence of eye‑witnesses was not believed because they were closely related to the complainant and at the time of occurrence the village was populated by many disinterested persons.

The facts alleged against Khuda Bakhsh accused, acquitted, by the learned Sessions judge are the same as alleged against the petitioners and the others. I have therefore, no alternative but to accept this reference and acquit all the remaining accused persons whether on bail or in Jail, If those who are in jail are not detained in any other offence they should be set at liberty forthwith.

Announced.

A. H. Reference accepted.

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