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Criminal Revision Application No.89 of 1985, decided on 6th December, 1985.

‑‑‑S. 439‑‑Second revision‑‑Trial Court refusing prayer of accused for dismissal of private complaint as being incompetent‑‑Sessions Court on revision setting aside order of trial Court‑‑Complainant filing revision petition against order passed in revisional jurisdiction‑‑Revision petition, held, was not competent against order passed in revision‑‑Revision dismissed in limine.

‑‑‑Ss. 435, 439 & 439‑A‑‑Second revision‑‑Revision filed against order passed by Sessions Court in revisional jurisdiction‑‑Application on which Sessions Court passed order was admittedly filed under S. 435, Cr.P.C.‑‑Section 439 (4)(b), Cr.P.C. barring jurisdiction of High Court to entertain revision against order passed by Sessions Court in exercise of its revisional jurisdiction vested in it under S. 439‑A‑‑Contention that said order was passed under S. 435, Cr.P.C. and did not fall within ambit of S. 439‑A, Cr.P.C. and as such revision against such order would be competent and High Court had jurisdiction to entertain such revision, repelled‑‑Sessions Court, held, could deal with revision application by exercising powers both under Ss.435 and 439‑A, Cr.P.C. and any order passed by Sessions Court in revision would be deemed to have been passed under both the sections‑‑Plea that some of orders passed by Sessions Court in revisional jurisdiction would fall under S. 435, Cr. P.C. and some under S. 439‑A, Cr.P.C. was misconceived‑ Second revision dismissed in limine as being incompetent.

Feroze Khan v. State 1983 P Cr. L J 482distinguished.

‑‑‑Ss. 435, 436, 438, 439‑A, 203 & 204(3)‑‑[as amended by Law Reform Ordinance, 1972]‑‑Power conferred on Sessions Judge of making reference to High Court under S.438, Cr. P.C. had been taken away‑‑Sessions Judge, held, had retained power to order further inquiry into complaint under SAM or 204 (3), Cr. P.C.

‑‑‑Ss. 439, 435, 436, 438, 203 & 204(3)‑‑Sessions Court in revisional jurisdiction setting aside order of trial Court whereby application for dismissal of private complaint was dismissed‑‑Complainant filing revision petition before High Court‑‑Contention that order with which revisional Court was grappling was of such a nature that he could make reference under S. 438, Cr. P.C. repelled‑‑Sessions Court, held, had no longer power to make reference under S. 438, Cr. P.C. after change in law.

-----Ss. 439, 435, 436, 439‑A, 203 & 204(3)‑‑Sessions Court in revisional jurisdiction setting aside order of trial Court whereby application for dismissal of private complaint on ground of lack of jurisdiction, was dismissed‑‑Complainant filing revision petition before High Court, against said order of Sessions Court‑‑Case before Sessions Court being not of dismissal of any direct complaint, question of his exercising power under S. 436, Cr. P.C. held would not arise‑‑Sessions Court, had requisite power to decide controversy with regard to lower Court's jurisdiction involved in case‑‑Sessions Court found to have resolved jurisdictional dispute palpably exercising powers vested in it under S.439‑A, Cr. P.C.‑‑Second revision thus dismissed in limine as being incompetent.

Abdul Alim K. Talib for Applicant.

Hassan Akbar, A.A.‑G. for the State.

This is a Revision Application under section 439, Cr.P.C. whereby the applicant Matloob Ahmed has impugned the order dated 27th June, 1985 passed by the VIth Additional Sessions Judge Karachi who while exercising his revisional jurisdictions set aside the order of the Additional City Magistrate refusing to dismiss the direct complaint filed by the applicant against the respondents Nooruddin and Altaf.

Briefly stated the case of the applicant is that he filed a rent case against the two respondents in which they took the plea that Altaf was the tenant of the applicant. In support of their case they produced a photos copy of the receipt indicating that some amount was paid to the applicant as advance rent. However, the applicant alleged the said receipt to be a forged document, therefore he filed a direct complaint against both the respondents in the Court of A.C.M. After holding preliminary enquiry the said A.C.M. issued process under sections 420, 468, P.P.C. and brought the case on his file. As the receipt was allegedly forged in relation to the rent proceedings instituted in the Court of Rent Controller, the respondents moved the trial Court to dismiss the direct complaint as being incompetent because said Court could not take cognizance without a complaint in writing filed by the Rent Controller. Somehow the A.C.M. was no impressed by their argument who, therefore, turned down the respondents prayer for dismissal of the complaint. Aggrieved by the order of the A.C.M., they took the matter in revision before the Sessions Court whereupon, as stated above, the Additional Sessions Judge passed the impugned order.

At the outset of his arguments, the learned counsel for the petitioner was called upon to address the Court with regard to its jurisdiction to entertain this revision application which is directed against the order of the Additional Sessions Judge also passed on revision A application. In other words the learned counsel was required to satisfy the Court if revision is competent against the order passed in revision. After hearing his arguments, the Revision Application was dismissed in limine by short order dated 1‑10‑1985 for reasons to follow.

The learned counsel endeavoured to show that the impugned order was not passed on revision application. However, he did not deny that the application on which the said order was passed was filed under section 435, Cr.P.C. His argument was that since the impugned order of learned Additional Sessions Judge did not fall within ambit of section 439‑A, Cr.P.C., the revision against such order would be competent and this Court has jurisdiction to entertain such revision application. In support of his contention he cited the case of Feroze Khan v. State 1983 PCr.LJ. 482 wherein the relevant observations made by the learned Chief Justice of this Court are in the following words:‑

"Be that, as it may, the Sessions Judge rejected the application under sections 435/439, Cr.P.C. on the ground that the order under section 112, Cr.P.C. cannot be set aside by the Sessions Courts 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.

In these circumstances, I will set aside the order of the learned Sessions 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."

It would appear that in the above‑reported case the learned Sessions Judge refused to interfere with the order passed under section 112, Cr.P.C. by the S.D.M. in exercise of revisional jurisdiction, vested in him under section 435/439‑A, because he was of the view that the relief sought involved quashment of the impugned order which, according to him, could be achieved under section 561‑A, Cr.P.C. the said section, in his opinion, confers exclusive jurisdiction on High Court and is invokable only by that Court. Disagreeing with the above view, the learned Chief Justice remanded the case back to the Sessions Judge with the direction to rehear it afresh and if necessary make reference under section 438, Cr.P.C. to the High Court for quashment of the impugned order.

In the instant case the point involved for decision was entirely different inasmuch as that on one hand the lower Court namely the Additional City Magistrate thought that he had rightly entertained the direct complaint and taken cognizance thereon and on the other hand the learned Additional Sessions Judge to whom the impugned order was taken in revision, did not, like the Sessions Judge in the reported case, exhibit his helplessness nor he hesitated in setting aside the lower Court's order. Therefore, the above authority does not render any assistance to the petitioner's case on facts.

Notwithstanding the position stated above, what the learned counsel for the petitioner attempted to show was that in the reported case of Feroze Khan even though the Sessions Judge had passed order on revision application pending before him, yet the High Court entertained revision application against the said order of the Sessions Judge. Therefore, in view of the said authority, the learned counsel wanted his present revision application to be entertained and admitted to regular hearing. The learned counsel argued that the language used by the learned Chief Justice in disposing the petition directed against the order of the Sessions Judge in the reported case clearly shows that he had not only entertained but had disposed as well the said petition as Revision Application.

I am inclined to feel that in the reported case perhaps the provisions contained in section 439(4)(b), Cr.P.C. were not brought to the notice of the learned Chief Justice. The said provision of law reads as under:‑

"439‑(i) ..........................................................

(2) ............................................................

(3) ............................................................

(4) Nothing in this section shall be deemed to authorise a High Court.‑

(a) ............................................................

(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A.

(5) ...........................................................

(6) "

On reading of the above provision of the .law no doubt should be left in mind that High Court has no jurisdiction to entertain revision against the order passed by the Sessions Judge in exercise of his revisional jurisdiction vested in him under section 439‑A.

It further appears that the learned Chief Justice was also not apprised of the amendment made in section 438, Cr.P.C. by Ordinance XXIV of 1975 whereby "Sessions Judge" was omitted from the said section and consequently he no longer enjoyed power o make reference to High Court. This amendment was logical consequence of conferring revisional jurisdiction of High Court on Sessions Judge under section 439‑A, Cr.P.C. accordingly the learned counsel for the petitioner cannot press into service the above authority in support of his argument.

The next argument of the learned counsel for the petitioner was that the Additional Sessions Judge has power of revision not only under section 439‑A, Cr.P.C. but also under section 435, Cr.P.C. and as such it is only order passed under section 439‑A that is hit by above‑noted provision and not the order passed under section 435, Cr.P.C. According to the learned counsel since the impugned order passed by the Additional Sessions Judge in the instant case fell under section 435 read with section 438, Cr.P.C., the present application directed against the said order is competent. This argument of the learned counsel is absurd on face of it. When revision application is preferred before the Sessions Judge, he can deal with it by exercising powers both under sections 435 and 439‑A, Cr.P.C. therefore, any order passed by him on revision application will be deemed to have been passed under both the above sections. It cannot be conceived that some of the orders passed by the Sessions Judge in his revisional jurisdiction will fall under section 435, Cr.P.C. and some under section 439‑A, Cr.P.C. I cannot persuade myself to agree with the argument that if the order sought to be revised by the Sessions Judge is 0fl such a nature that he could pass appropriate order under section 435, Cr.P.C. then revision under section 439, Cr.P.C. against such order can lie to High court. However as pointed out above, section 438, Cr.P.C. Is not available to the learned counsel as Sessions Judge after amendment of that section cannot make any reference to High Court.

It may be recalled that prior to introduction of Law Reforms in 1972, revisional jurisdiction was conferred on Sessions Judge under section 435, Cr.P.C. read with sections 436 and 438. On examining any record under section 435, he had power under section 436, Cr.P.C. to direct the District Magistrate to make further enquiry himself into any complaint dismissed under section 203 or 204(3), Cr.P.C. or direct any Magistrate subordinate to him to make such enquiry or under section 438, Cr.P.C. to make reference to the High Court for its orders. But after coming into force of the Law Reforms, as has been pointed out above his power of making reference under section 438 Cr.P.C. has been taken away. By the same Reforms a new section 439‑A, Cr.P.C. has been inserted in the Criminal Procedure Code by which Sessions Judge has been invested with all powers of High Court under section 439, Cr.P.C. Nevertheless the Sessions Judge, like High Court, has retained the power to order further enquiry into the complaint under section 203 or 204(3), Cr.P.C.

It seems the learned counsel for the petitioner was unaware of the above legal changes that were brought about in the light of Law Reforms, when he argued that the order with which the learned Additional Sessions Judge was grappling was of such a nature that he could make reference under section 438, Cr.P.C. for suitable orders of High Court. Since the case before the Additional Sessions Judge was not of dismissal of any direct complaint, the question of his exercising power under section 436, Cr.P.C. for making further enquiry into such complaint did not arise. The precise point for determination before the Additional Sessions Judge was whether the learned Additional City Magistrate was right in taking cognizance of the Offence in view of the forged rent receipt without the complaint in writing of the Rent Controller N in whose Court such forged rent receipt was produced. As provided in section 439‑A, Cr.P.C., he had the requisite power to decide the controversy with regard to the lower Court's jurisdiction involved in the case. On perusal of the impugned order, it is clear that the learned Additional Sessions Judge has resolved the jurisdictional dispute palpably exercising the powers vested in him under section 439‑A, Cr.P.C.

The upshot of the above discussion is that the order passed by the Additional Sessions Judge under section 439‑A, Cr.P.C. cannot be called in question in Revision application under section 439, Cr.P.C. before the High Court. Accordingly the Revision Application being incompetent was dismissed in limine as stated above.

H.A.K Revision dismissed.

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