' This is a petition under section 439, Cr. P. C. By Muhammad Bakhsh petitioner against the order of Mian Abdur Rahman, Additional -Sessions Judge, Lahore, dated 7th June, 1079, dismissing the petitioner's revision petition filed under section 439-A, Cr. P. C. Against the order of Mr. Zubair Masood, Magistrate Ist Class. Lahore, dated 12th March, 1979, acquitting the accused respondents of a charge under section 448, P. P. C.
2. The brief facts of the case are that on 10th August, 1972, a case under section 448, P. P. C. Was registered vide F. I. R. No, 92 at Police Station Mozang, Lahore, on the statement of the petitioner Muhammad Bakhsh against the respondents for forcibly breaking open the locks of. His house and thereby trespassing into the same and taking forcible possession thereof on 3rd August, 1972. The occurrence was witnessed by Ishaq, Abdul Wahab and Abdul Aziz P. Ws. The case was investigated by Zafar Ali, A.S. I. And the respondents were challenged. Both the respondents were sent up for trial under section 448, P. P. C. Before Mr. Zubair Masood Magistrate 1st Class, Lahore, who, by his judgment dated 12th March, 1979, acquitted them of the said charge. The petitioner thereupon moved an application under section 417, Cr. P. C. Before the District Magistrate, Lahore, for the State to prefer an appeal against the said order. But the learned District Magistrate rejected the application and communicated his decision to the petitioner by a certificate dated 29th May, 1979.
The petitioner then filed a revision petition under section 439-A, Cr. P. C. Before the Court of Session, which was marked to Mian Abdur Rehman, Additional Sessions Judge, Lahore, who, by his short order dated 7th June, 1979 (Annexure C to the petition), dismissed the same in limine. Being aggrieved by the said order, the petitioner preferred a second revision petition to this Court under section 439, Cr. P. C., which is now before me for disposal.
3. The learned counsel for the petitioner, in support of his petition, submitted that the learned Additional Sessions Judge erred in law in holding. That in view of the provisions of 417, Cr. P. C., it was not within his purview to adjudicate into the matter and that the revision petition under S. 439- A. Cr. P. C. Before him was incompetent. Learned counsel further submitted that in view of the Law Reforms Ordinance, 1972, the petitioner had a right to prefer a revision petition to the Sessions Court under section 439-A, Cr. P. C. After his application under section 417, Cr. P. C. To the District Magistrate requesting the State to prefer an appeal against the order of the learned Magistrate was rejected. It was further submitted that the mere fact that an appeal by the State lay to the High Court under subsection (I) of section 417, Cr. P,C., it did not disentitle the petitioner to move a petition in revision under section 439-A, Cr. P. C. Before the learned Sessions Judge. It was contended that the whole object of the Law Reforms Ordinance. 1972, was to take the supervisory jurisdiction of the High Court, available under section 439, Cr. P. C., right to the door step of the litigant in the Sessions Court and that if there was any anomaly in the law which provided that an appeal should bz heard by a High Court and a revision petition should be heard by a Sessions Judge, the same was nat the result of any lacuna, but the deliberate intention of the Legislature to provide two different forums for securing the said two reliefs. Lastly, it was submitted that since the petitioner's revision petition was dismissed by the learned Additional Sessions Judge in limine as being incompetent, he had actually not applied his mind to the case at all and that, therefore, he did not make any 'order' in the established sense to prevent the High Court from looking into the matter in its provisional jurisdiction under section 439 of the Criminal Procedure Code, notwithstanding the bar contained in subsection (4) thereof.
4. The learned Advocate-General, who appeared for the State, supported the arguments of the learned counsel for the petitioner and submitted that the learned Additional Sessions Judge erred in law in dismissing the revision petition in limine as incompetent. He submitted that since this Court had admitted the present petition for hearing, the bar contained in clause (b) of subsection
(4) of section 439, Cr. P. C., which prevented the High Court from entertaining any proceedings in revision with respect to an order made by a Sessions Court under section 439-A, Cr. P. C., did not prevent this Court to decide the present revision petition. In this connection, he cited Syed Parial Shah v. The State etc. (1). In the alternative, it was suggested that this Court had power under section 561-A, Cr. P. C. To set aside the order of the learned Additional Sessions Judge and to direct him to hear the revision petition which was filed before him and to decide the same in accordance with law under section 439-A, Cr. P. C.
5. I have given my anxious consideration to this case. The impugned order of the learned Additional Sessions Judge, which is rather short, seems to convey the impression that where an accused is acquitted in a police challan case by a Magistrate, the complainant only has a remedy of submitting an appeal to the High Court and not a revision petition against the same undea.
Section 439-A, Cr. P. C. Before the Sessions Judge and that if the latter is filed, the same is incompetent in law. It appears that the learned Additional Sessions Judge is somewhat confused in the matter. In cases relating to acquittals by Magistrates the position before the Law Reforms Ordinance, 1972, was that the Provincial Government had the first right under section 417, Cr. P. C. Of preferring an appeal to the High Court from the original order of acquittal of the learned Magistrate and where the Provincial Government did not desire to prefer an appeal, the private complainant had the right of moving a revision petition against the said acquittal either before the Sessions Judge or District Magistrate under section 435/438, Cr. P. C. Or before the High Court under section 439, Cr. P. C. The private complainant had a concurrent remedy in three forums. If he moved the Sessions Judge or District Magistrate under section 435/438, Cr. P. C., he did not have to file a certificate from the District Magistrate rejecting his application to move the State to prefer an appeal, whereas if he filed an application under section 439, Cr. P. C. Before the High Court, he had to file such a certificate under rule 1-A of sub-Part (b) of Part A of Chapter 1, Volume V of the High Court Rules and Orders. Where the revision petition was filed before the Sessions Judge or the District Magistrate, the said Judge, if he found that the order required revision, could only make a recommendation to the High Court that the order of acquittal be set aside and a retrial ordered, in which case the reference was heard by the High Court and the High Court ultimately decided whether to accept the recommendation of the said judicial officer or not, or to pass any appropriate order in the case. (If any reference is desired as regards the exercise by Sessions Judges and District Magistrates of their power under sections 435/438, Cr. P. C. Against orders of acquittals made by Magistrates, which cases were ultimately referred to the High Court (Emperor v.
Ram Deo (2), may be referred to with advantage). Where the revision petition was filed before the High Court, the High Court decided the matter itself and in appropriate cases set aside the acquittal and ordered the retrial of the case. The Law Reforms Ordinance, 1972, brought about inter alia important changes in the Criminal Procedure Code and more particularly in sections 417 and 439 thereof relating to appeals against acquittals and revisions. Prior to the amendment, a private complainant had no right of appeal against an order of acquittal passed by a Magistrate in a case instituted upon a complaint.
(1) PLD 1973 Kar. 265 (2) AIR 1942 Oudh 443 ' Section 417 of the Code of Criminal Procedure had actuallibeen amended in India by the Code of Criminal Procedure (Amendment) Act (XXVI of 1955), so as to enable a private complainant to file an appeal against an order of acquittal after obtaining special leave from the High Court, A period of limitation was prescribed for filing such a petition. The Law Reforms Commission, therefore, recommended that in all complaint cases, a private complainant should be given the right of appeal against an acquittal, but in police cases, the right to file such appeals should continue to rest with the State. Accordingly, section 417 of the Code of Criminal Procedure was amended by the Law Reforms Ordinance on lines similar to the amendment brought in India and the private complainant was given the right of filing an appeal against an order of acquittal passed in a case instituted upon complaint, provided he obtained special leave from the High Court. A period of limitation of sixty days was also prescribed for filing such a petition for leave to appeal. As regards the provisional jurisdiction of the Sessions Courts existing under sections 435 to 438 of Cr. P. C., in view of the large number of revision petitions pending in the High Courts and to lessen their burden, the Law Reforms Commission advised the enlargement of the said jurisdiction to enable the Sessions Courts to exercise the same jurisdiction as was vested in the High Court and to pass final orders on such petitions themselves, instead of making references to the High Court under section 438, Cr. P. C. Accordingly, section 439-A, Cr. P. C. Was added by the Law Reforms Ordinance, 1972, enabling Sessions Judges to exercise all or any of the powers conferred on the High Court by section 439, Cr. P.. C. In cases relating to proceedings before Magistrates subordinate to itself. The words "may exercise any of the) powers conferred on the High Court by section 439" in section 439- A mean exercise of powers, subject to such limitations or restrictions as are mentioned in subsections (2), (3), (4) and (5) of section 439, for when the A High Court exercises powers under section 439, Cr. P. C. It does so subject to the restrictions mentioned in these subsections. In short, by the addition of section 439-A, Cr. P. C., the paternal or supervisory jurisdiction of the High Court, as a Court of record, was granted to the Sessions Judges, so that speedier justice could be made available at the very door steps of the litigants. The omission of the words "Sessions Judge" from subsection (1) of section 438, Cr. P. C. And the addition of section 439-A of the Criminal Procedure Code by the Law Reforms Ordinance, 1972, now grants the private complainant the right to have his B revision petition filed before the Sessions Judge against an order of acquittal passed by a Magistrate in a case instituted upon a police challan finally decided by the Sessions Judge himself and not referred to the High Court for final order. As regards the right of the private complainant to file a revision before the Sessions Judge against an order of acquittal passed by a Magistrate in a case instituted upon a private complaint, the same appears to be taken away by subsection (5) of section 439 read with subsection (2) of section 417, Cr. P. C. There is no bar, however, preventing a private complainant from filing a revision before the High Court under section 439, Cr. P. C. Against an order of acquittal passed by a Magistrate in a case instituted upon a police challan, but in a case instituted upon a private complaint, his right would be barred by the same provisions. It is, therefore, clear that so far as where provisional jurisdiction is Magistrates to have orders of acquittal passed by Mastrates in case r., instituted upon police challans set aside, the private complainant has ' concurrent remedy in three forums, i,e, before the District Magistrate, the Sessions Judge and the High Court. If he moves the District Magistrate, the District Magistrate cannot pass any order himself but can only refer the case to the High Court which can pass the final order in the case under section 439, Cr. P. C. If he moves the Sessions Judge or the High Court, both have powers to finally decide the petition. In line with the principle, therefore that when a power is co-extensive with two or more Courts, in ordinary circumstances the litigant must first resort to the remedy in the Court of the lowest jurisdiction which can finally decide his case, in normal circumstances the private complainant should first seek his redress from the Sessions Judge, though there is nothing to prevent him from moving the District Magistrate. Only in very rare and exceptional cases, the private complainant should seek his remedy from the High Court. Of course, where the private complainant seeks his remedy from the Sessions Judge, the entertainment of any further proceedings by the High D Court in revision with regard to an order made by the Sessions Judge under section 439-A, Cr. P. C. Would be barred under clause (b) of subsection (4) of section 439, Cr. P. C.
6. From the above, it is apparent that with regard to cases instituted upon police challans, prior to the amendment of 1972, a private complainant aggrieved by an order of acquittal passed by a Magistrate had the remedy, if the Provincial Government did not prefer an appeal, of filing a revision petition against the same, either before the Sessions Judge or the District Magistrate under section 435/438, Cr. P. C. Or before the High Court under section 439, Cr. P. C. And that after the amendment he also has the remedy of filing a revision petition before the District Magistrate unde section 435/438, Cr. P. C. Or before the Sessions Judge under section 439-A Cr. P. C. Or before the High Court under section 439, Cr. P. C. The only difference after the amendment is that the Sessions Judge does not have t. Make a reference to the High Court but can finally decide the petition himself. Further, prior to the amendment, the Provincial Government had no right of revision against such an order of acquittal (because of it superior right to prefer an appeal) and that after the amendment the same position prevails. This does not mean that the Public Prosecutor prior the amendment did not have the right of filing a revision petition under section 435/438, Cr. P. C. Before the Sessions Judge or the District Magistrate for the reversal of such an order or that the Sessions Judge o District Magistrate could not suo motu act under the said sections. In Kulasekara Chitty v.
Tholsingham Chitty (1), the right of the Public Prosecutor to file a revision petition before the District Magistrate against an order of acquittal passed by a Magistrate was recognised, notwithstanding the right of the District Magistrate himself, as the chief executive of the district, to move the Provincial Government to prefer an appeal. In Emperor v. Bashir (2) where a reference was made by the District Magistrate under section 435/438, Cr. P. C, praying that an acquittal be set aside and a retrial ordered, and an objection was taken before the High Court that as the District Magistrate could have directed the Local Government to appeal, the powers of the District Magistrate were shut by subsection (5) of section 439, Cr. P. C., Boys, J. Held that the Local Government and the District Magistrate were different entities and that the District Magistrate was not entitled to appeal, though he had power in his executive capacity to move the Local Government to appeal and that, therefore, there was no bar to his judicial power. Still further, prior to the amendment, theta
(1) AIR 1938 Mad. 349 (2) AIR 1930 All. 741 ' Provincial Government, but not the private complainant, had the right ofl preferring an appeal against such an order of acquittal and after the amendment, the position is still the same.
7. As regards cases instituted upon private complaints, prior to the amendment of 1972, a private complainant aggrieved by an order of acquittal passed by a Magistrate had the remedy, if the Provincial Govern ment did not prefer an appeal, of filing a revision petition against the same, either before the Sessions Judge or the District Magistrate under sections 435/438, Cr. P. C. Or before the High Court under section 439, Cr. P. C., but after the amendment he has none, as in all cases he has now the right of preferring an appeal under subsection (2) of section 417 and subsection (5) of section 439, Cr. P. C. Acts a bar to the entertainment of a revision petition.
However, in very exceptional cases the High Court and the Sessions Judge have the power under sections 439 and 439-A respectively of the Criminal Procedure Code to interfere in revision treating the revision petition which is incompetent under subsection (1) of section 439 as information and taking action suo motu thereunder and revising the impugned order, but such action would be very rare indeed. Emperor v. Sukhdeo (1) and Emperor v. Rain Deo (2) are cases which support such an action. Further, prior to the amendment, the Provincial Government had no right of revision against such an order of acquittal (because of its superior right to prefer an appeal) and that after the amendment the J position is the same. What has been stated in the previous para. About the right of the Public Prosecutor to file revision petition and that of the Sessions Judge and District Magistrate to suo motu act under section 435/ K 438, Cr. P. C. Applies equally here as well. Again, prior to the amendment, the Provincial Government, but not the private complainant, had the right of preferring an appeal to the High Court against such an order of acquittal, but that after the amendment both the Provincial Government and the private complainant have the said right, though that of the private complainant is subject to leave being obtained from the High Court.
8. In the para. Last aforementioned, I have submitted that after the 1972 amendment, the private complainant has no right of filing a revision petition against an order of acquittal passed in a case instituted upon a private complaint either to the District Magistrate or the Sessions Judge or the High Court. This view finds support from precedent. In City Board, Mussoori v. Sri Kristian Lal (3) where a revision filed by a private complainant before a Sessions Judge against an order of acquittal was referred to the High Court with the recommendation that the acquittal be set aside and the accused be retried, the High Court held that as the private complainant had the right of appeal under subsection (3) of S. 417 of the Criminal Procedure Code (as amended in India) and subsection (5) of section 439 barred the entertainment of any revision petition if an appeal lay and no appeal was brought, the Sessions Judge was barred from entertaining the revision petition or making any report to the High Court thereon and that the report he made was without jurisdiction and could not be acted upon. Gogey v. Emperor (4) is also to the same effect. In State of Bombay v.
N. G. Tayawade (5) where a revision petition filed by
(1) AIR 1916 All. 316 (2) AIR 1942 Oudh 443
(3) AIR 1959 All. 413 (4) AIR 1946 Oudh 20
(5) AIR 1959 Bom. 94 ' a private complainant was also referred to the High Court with a recommendation for acceptance, the High Court held that the right of appeal available to the private complainant under subsection (3) of section 417 (as amended in India), though subject to leave of the Court, did not mean that the private complainant did not have a right of appeal. It was held that obtaining of the permission was only a procedural step in the pursuit of that right. Since in the said case the private complainant had not preferred an appeal, the High Court dismissed the revision petition.
However, in Khaya Waiphei v. Ngulthang (1) which was a similar case, the Manipur High Court took the view that a Sessions Judge should not dismiss a revision petition as incompetent but should refer the case to the High Court if he was satisfied that the acquittal required to be set aside, leaving the High Court to apply or withhold application of subsection (5) of section 439, Cr. P. C. In my opinion, the Manipur view is not correct as it opens the door to the unnecessary hearing of thousands of petitions, the reference of those that call for action to the High Court and the ultimate dismissal of a majority of the references under subsection (5) of section 439, Ct. P. C., barring a few exceptions. The Allahabad and Bombay cases reflect the true view of the law. In these circumstances, it is obvious that if a private complainant was now to file a revision petition before the District Magistrate, the said Magistrate would have the power to dismiss the same in limine as incompetent. The same would be the position if he were to attempt to file a revision now before the Sessions Judge or the High Court. In this connection, Chairman Village Panchayat v. N. Thimasetty
(2) and Shiv Parshad v. Bhagwan Das (3) may be referred to with advantage.
9. From paras. 6 and 7 above, it appears that both the Provincial Government and the private complainant have a right of preferring an appeal to the High Court or filing a revision petition before the District Magistrate, the Sessions Judge or the High Court, according to the scheme of the law as stated in the Code. The fact that for the private complainant the forum for appeals is the High Court, in cases instituted upon a private complaint, and no Court at all, in respect of cases instituted upon a police challah, and that for revision petitions, it is the District Magistrate, the Sessions Judge and the High Court, as Courts of concurrent jurisdiction, in cases instituted upon a Police Challan, and no Court at all, in respect of cases instituted upon a private complaint, may appear slightly anomalous, but the law must be applied strictly as it is. It is exclusively within the domain of the law-making authority to vest different Courts and tribunals possessing varied status with such appellate and provisional powers as it considers necessary, depending upon the objective to be achieved and legal expediency to be served. Other than interpret N the law as it stands, it does not lie in the province of the Courts to strike down or belittle such powers granted, merely because it does not fit in with some established or preconceived scheme of authority which certain Courts or Tribunals, at their respective levels, should possess. When sec ton 439-A, Cr. P. C.
Was added to the Criminal Procedure Code, the Legislature was aware of the existence of subsection (1) of section 417 of the Code, as it was adding subsection (2) to it. If the Legislature had wanted to remove the anomaly, it would have done so, but it did not do so. Perhaps the Government will do so in future. But presently behind
(1) AIR 1963 Manipur 15 (2) AIR 1956 Mys. 62
(3) AIR 1958 Pb. 228 ' section 439-A, Cr. P. C., as it stands, the intention is clear. The Sessions Judge has power to hear a revision petition from an order of acquitta 1 passed by a Magistrate in a case instituted upon a Police Challan. The intention is further manifest from the Report of the Law Reforms Commission, 1970. The revision petition before the Sessions Judge by the present private complainant is one against an order of acquittal passed by a Magistrate of the First Class in case instituted upon a Police Challan.
There is no right of appeal to the complainant against this order at all, The revision is, therefore, not barred under subsection (5) of section 439, Cr. P. C. The order of the learned Additional Sessions Judge dated 7th June, 1979 holding that the petition is incompetent and dismissing the same in limine is, therefore, illegal and has been passed in error. The same deserves to be set aside.
10. The only question that now remains to be determined is whether this second revision petition is competent and, if so, I can hear the same. The learned counsel for the petitioner has submitted that since the learned Additional Sessions Judge did not hear the revision petition, as he held the same to be incompetent in law and dismissed the same in limine, therefore, he did not pass or make any order in the established sense. Since there was no 'order made' by him in the petition, the bar contained in clause (b) of subsection (4) of section 439, Cr. P. C. Did not apply. It has been stated that the words "order made", in this clause, refer to an order made in a revision petition which the Sessions Judge has dealt with as competent before him and not to one made in a petition which the Sessions Judge has treated, rightly or in error, as incompetent before him. The learned Advocate-General has, however, submitted, on the analogy of Syed Parial Shah's case that since the present second revision stands admitted by me, the bar as regards its entertainment disappears and I can now decide it as if the bar does not stand. I am afraid I cannot agree with the contentions raised by both the learned counsel. The words "order made" in clause (b) of subsection
(4) of section 439, Cr. P. C. Are used in their normal and natural sense. They are not used in any limited or technical sense. They cover orders both legal and illegal, including orders passed 0 in excess of or where there is failure to exercise jurisdiction. To give any other meaning to these words would be only doing violence to their true intent. The submission of the learned counsel for the petitioner is, therefore, not a correct exposition of the law. 1 now turn to the submission of the learned Advocate-General. Attention has been drawn to Syed Parial Shah's case in which a revision petition was entertained by the office of the Karachi Bench of the West Pakistan High Court without the certificate of the District Magistrate certifying that he had rejected the petitioner's prayer for calling upon the State to file an appeal. Since the said petition was put up for orders before a learned Judge who admitted the same, notwithstanding rule 1-A, sub-Part A, Chapter 1, Volume V of the Lahore High Court Rules and Orders. Which prohibited the entertainment of the revision petition if the said certificate was not filed with it, it was contended before the Bench that the petition could not be heard and should be dismissed. The learned Judges of the Karachi Bench rejected the objection, holding that the rule which was made by the High Court under powers vesting in it under Article 101 of the Constitution of 1962 and section 554 (2) (c) of the Code of Criminal Procedure, could not override the powers given under section 439 of the Code to hear the petition and decide it on merits. The Bench further held that since the petition had been admitted by them and the matter had come to its knowledge, the High Court had unfettered powers to decide the petition, subject only to the restrictions mentioned in subsections (2), (3), (4) and (5) of section 439 of the Code. In the instant case, clause (b) of subsection (4) of section 439 of the Code itself provides a bar to the entertainment of the petition and, as such, it must prevail. Syed Partial Shah's case also recognizes the bars which section 439 places on the High Court when exercising powers thereunder. This ruling, therefore, does not advance the contention of the learned Advocate-General, but rather goes against it. The contention of the learned Advocate-General is therefore rejected.
11. In view of the above, exercising my powers under section 561-A of the Criminal Procedure Code, I hereby set aside the order of the learned Additional Sessions. Judge dated 7th June, 1979 passed in Criminal Revision No, 68 of 1979 and remand the case back to the learned Additional Sessions Judge with the direction that he should hear and finally decide the said revision petition on merits, after notice to the parties. This ' petition is accordingly accepted.