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Criminal Miscellaneous No. 112‑Q of 1986, decided on 6th October, 1986.

‑‑‑S.561‑A‑‑Penal Code (XLV of 1860), S.500/501‑‑Quashing of revisional order‑‑Private complaint by petitioner‑‑Accused summoned by Magistrate‑‑‑ Additional Sessions Judge in exercise of revisional jurisdiction setting aside order of Magistrate‑‑Petitioner not impleaded as party‑ Petitioner having right to be heard, order passed in his absence, held, was illegal which was set aside and revision petition remanded nor re‑hearing and fresh decision after notice to petitioner.

S.M. Masood for Petitioner.

M. Ashraf Elahi for Respondent No.1.

Zafar Yasin for the State.

This is a petition under section 561‑A, Cr.P.C. by Ch. Muhammad Aslam, Advocate petitioner, for the quashment of an order dated 2‑11‑1985 passed by the learned Additional Sessions Judge, Gujrat.

2. The brief facts of the case are that Ch. Muhammad Aslam, Advocate, petitioner, filed a private complaint against Major Mirza Hassan Baig, Advocate, respondent, under section 500/501, P.P.C. before a Magistrate. After preliminary evidence was recorded, the Magistrate summoned the respondent to face trial under section 500, P.P.C. The respondent thereafter filed a petition under section 249‑A, Cr.P.C. for his acquittal, which was dismissed. He then filed a revision petition in the Sessions against the order dated 16‑2‑1984 summoning him to face trial, which was allowed by an Additional Sessions Judge on 2‑11‑1985, who set aside the order of the Magistrate summoning the. respondent to face trial. Being aggrieved by the said judgment, the petitioner filed a petition for quashment (Criminal Miscellaneous 112‑Q of 1986) before the High Court, which is now before me for disposal.

3. I have heard the arguments of the learned counsel for the petitioner, the respondent and the State and have also perused the record. The revision petition filed by the respondent in the Sessions against the order of the Magistrate dated 16‑2‑1984 summoning him to face trial, mentions the State as respondent. The petitioner, who was actually the private complainant, was not impleaded as a party. The record of the revision petition also shows that at no stage the petitioner was either summoned as a party or was present at any of the hearings. On behalf of the respondent it is contended that since the State was impleaded as a party and was heard through its Deputy District Attorney, there was no need to serve or hear the private complainant. I am afraid this submission cannot be accepted. It is obvious that the impugned order passed by the learned Additional Sessions Judge on 2‑11‑1985 was passed in the absence of the petitioner, who was the complainant in the case and who had a right of being heard. The impugned order is, therefore, illegal.

4. For the foregoing reasons, this petition is accepted and the judgment of the learned Additional Sessions Judge, Gujrat, dated 2‑11‑1985, is set aside. The revision petition is now remanded to the Sessions, so that the same may be reheard after notice to the petitioner and a fresh decision is given thereon. Since Mr. Muhammad Aslam Sumra, Additional Sessions Judge, has already expressed himself in this connection the revision petition shall be either heard by the learned Sessions Judge, Gujrat, himself, or marked by him for disposal to some other learned Additional Sessions Judge, Gujrat.

S. A. Case remanded.

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