The applicants in this case, one of whom resides at Karachi while the others belong either to Peshawar or Swat, are undergoing trial in the Court of the 1H Additional Sessions Judge, Karachi acting as a Tribunal constituted under section 23-A of the Foreign Exchange Regulation Act, 1947, for an offence punishable under section 23 of that Act.
2. The applicants' main prayer, as stated in the petition, was that the proceedings against them be quashed on the ground that the prosecution case disclosed no offence and that a continuation of the proceedings would therefore amount 'to an abuse of the process of the Court. This prayer has, however, been abandoned by Mr. Hayat Junejo, the learned Advocate who appears for them, and it is unnecessary, therefore, to examine the merits of the case. He has now confined himself to the alternative prayer that his clients be exempted from personal appearance and be permitted, instead, to appear by counsel at the hearings in the case. This was conceded to by learned counsel for the State, Mr. Murtaza Hussain, but Mr. S. Hyder Pirzada on behalf of the State Bank objected on the score that an order of the Tribunal was not open to revision by this Court. It is interesting to note that earlier, on an application for iuterim orders allowing the petitioners to be allowed to appear by counsel in the trial Court and pending the disposal of this petition, Mr. Pirzada raised no objection.
3. The prayer for exemption was made to the learned trial Judge by an application in writing but he dismissed it on the ground only that section 205, Criminal Procedure Code "is not applicable to challan cases specially to the provision 6, F. E. Regulation Act, 1947" and that the application was not therefore maintainable. What was meant by the reference to "provision 6" is not clear to me; perhaps the learned Judge was misled by the fact that the word "Exemption" is used in section 6 of the Foreign Exchange Regulation Act. However, he entirely overlooked the fact that the application did not purport to be only under section 205 but also under sections 353 and 363 of the Criminal Procedure Code. Of these section 3 S3 was clearly applicable although section 363 was not and has perhaps been mentioned by mistake. In any case there was therefore an order passed by the learned Judge open to revision by this Court, if indeed this Court has any powers of revision over a Tribunal at all.
4. The really important question therefore that arises in this case is whether the Tribunal is subject at all to the revisional jurisdiction of this Court conferred by sections 435 and 439 of the Code of Criminal Procedure. As would appear from a written note handed over to me in chambers after arguments in this case had been heard in Court, Mr. Prizada's principal reliance was upon subsection (7) of section 23-A of the Act which reads thus: "(7) Save as provided in the preceding subsection, all judgments and orders passed by a Tribunal shall be final."
T he preceding subsection (6) gives a right of appeal to a person aggrieved by a Judgment of the Tribunal.
5. On the other hand Mr. Hayat Junejo's contention was that the Tribunal created by section 23-A was, by no means, a "persona designata" but a Court strictly so-called. Indeed he contended that no Tribunal as such had been created at all and that, on a proper construction of section 23-A it ought to be held that the jurisdiction had been conferred on Sessions and Additional Sessions Judges who continued accordingly to act as such; their orders would, therefore, be subject to revision by this Court as all the incidents of a trial by such a Judge would attach to trials before him as a Tribunal. The fact that he is enjoined to "follow as nearly as may be the procedure provided in the Code of Criminal Procedure", he argued, was entirely irrelevant for the liability to revision; revision or appeal over any of his orders would obviously not be a part of the procedure to be followed by him; even if it was, since revision was expressly provided for by the Code this provision would, far from standing in his way, only further strengthen his stand.
6. Before going on to consider the question involve it would be convenient to reproduce the sub- sections (1), (2) and (3) of section 23-A:-- "23A.--(l) Every Sessions Judge shall, for the areas within the territorial limits of his jurisdiction, be a Tribunal for trial of an offence punishable under section 23.
(2) A tribunal may transfer any case for trial to an Additional Sessions Judge within its jurisdiction who shall, for trying a case so transferred, 'be deemed to be a Tribunal constituted for the purpose.
(3) A Tribunal shall have all the powers of a Magistrate of the First Class in relation to criminal trials, and shall follow as nearly as may be the procedure provided in the Code of Criminal Procedure, 1898, for trials before such Magistrate, and shall also have powers as provided in the said Code in respect of the following matters, namely:--
(a) directing the arrest of the accused;
(b) issuing search warrants;
(c) ordering the police to investigate any offence and report;
(d) authorizing detention of a person during police investigation;
(e) ordering the release of the accused on bail."
7. A number of cases were cited before me in support of the rival contentions but it will suffice to refer to only some of them. The case on which Mr. Junejo placed the greatest reliance was that of the National Telephone Company Ltd. and His Majesty's Post blaster General (1) Section 1 of the Telegraph (Arbitration) Act, 1909, provided that any difference between the Post Master General and any person under an agreement relating to telephones, should, if the parties agreed, be referred to the Railways and Canal Commission, who were bound to determine it. That commission had been constituted under other statutes and it was provided by the Act of 1909 that all proceedings be conducted by [6] the Commission in the same manner as any of the proceedings was required to be conducted under the previous Act. An objection that no appeal lay from the Commission was repelled and the Lord Chancellor said:-- "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of-the procedure of the Court are to attach, and also that any general right of appeal from its decisions likewise attaches."
Again Lord Shaw of Dunfermline in the same case said:-- "In the general case, when a Court of record (which the Railway and Canal Commission is by the Act of 1888, section 2) becomes possessed, by force of agreement and statute, of a reference to it of differences between parties, the whole of the statutory consequences of procedure before such a Court ensue."
8. In the case of T.A. Balakrishna Vdayar v. Vasudeva Ayyar (1), the position was that Bengal and Madras Native Religious Endowments Act of 1863 provided that when a vacancy occurs in the membership of a committee to be appointed under that Act to administer certain religious trusts the civil Court were empowered to fill the vacancy and their Lordships of the Privy Council held that the civil Court was therefore, not a *persona dtsignatd' but an ordinary Court to the proceedings of which all the ordinary incidents which otherwise attach to its proceedings would continue to attach for the purposes of proceedings under the Act.
9. Again in the case of Bazfer Rahman Khandakarv. Amiruddin (2), it was held that there is no real anntithesis between the expressions "persona designata" and "Court" and that even the former may be a Court depending upon the powers and functions conferred upon the provisions of the statute conferring jurisdiction. It was also held that where special jurisdiction is conferred upon an existing or established, Court without more it will attract all the incidents of the ordinary jurisdiction of such Court including the right of revision.
10. The Full Bench case of Makhan Lai and others v. Secretary of State (3) was a case under the Land Acquisition Act and it was held that the District Judge acting on a reference made by the Collector under section 18 of that Act is a Court with all the consequences that such a finding entailed.
11. Mt. Dirji v. Smt. Goalin (4) was a case under the Workmen's Compensation Act where again similar view was taken.
12. Clearly, therefore, if jurisdiction is conferred by an Act upon a Court which is already established such as the Court of A Session or the District Court without anything more then all the
(2) AIR 1944 Cal. 401
(4) AIR 1942 Pat. 33 incidents which attach to the proceedings before such a Court would also be attracted to proceedings under the Act, and no special provision would be required to enable an appeal to a higher Court or to subject the orders passed in the course of such a jurisdiction to the revisional power of the High Court which would be attracted by reason of the fact that the High Court exercises revisional jurisdiction over the Sessions Court or the District Court in any event.
13. All the cases which Mr. Pirzada quoted in his written arguments are really distinguishable and do not conflict with the proposition of law which I have stated in the last paragraph. In the case of Mohammed Ahmad v. Governor-General-in-Council (1) it was held that no revision was competent from the decision of the Tribunal set up under the U. P. Town Improvement Act. But in that case the Tribunal was clearly a "persona designaia" since it consisted of the President and two Assessors, the President being required to be a member of the Judicial service of a certain standing who had served as a District Judge or held judicial office not inferior to that of a subordinate Judge of a lst Class for less than three years or a Barrister, Advocate or a pleader of not less than 10 years' standing. Even if the President in that case had been a District Judge and not a person who could be selected from the various categories named in the last sentence, it is difficult to see how the entire Tribunal can be described as a Court already established much less the Court of the District Judge or the District Court as such. I do not think, therefore, that this case is of much assistance to the respondents.
14. The case of Sultan Ali v. Noor Hussain (2) was one in which a similar question arose as to the Election Petition Commission. Here again it was held that the civil Courts could not interfere with the decision of the Commission and here again the Commission was not a Court already established. Nor am 1 impressed by the argument stated in writing by learned counsel for the State Bank that:-- "The Foreign Exchange Act is designed to safeguarding and conserving foreign exchange which is essential to the economic life of a developing country. The very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if it i< subject to Revisional jurisdiction of this Hon'ble Court because each and every person will file an application for revision ever) now and then."
On that basis it is difficult to see why any order of any subordinate Court should be open to revision by the High Court.
15. T think, therefore, on the authorities there can be n< doubt that where a jurisdiction is conferred upon an ahead; established Court like the Sessions Court, or the District Cour without anything more, all appeals or revisions, which unde the Criminal Procedure Code or the Civil Procedure Code wouh lie from that Court, would be equally competent when lhat special jurisdiction is exercised. But it is important to realise that this would be the position only if such jurisdiction is created without any further provision and I do not think it is possible to disregard the clear language of the statute which provides against such appeals or revisions.
16. In the Supreme Court case of Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another (1) the position of the District Judge acting under the West Pakistan Urban Rent Restriction Ordinance was considered and it was held that he was acting as "persona designata". Section 15, subsection (5) of that Ordinance reads as follows: "(5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance."
An instructive passage in the Judgment of the Supreme Court is in the following words:-- "Subsection (5) excludes the jurisdiction of any Court of law to question the order of the Controller, the Appellate Authority and the High Court under the provisions of this Ordinance. Now the only way in which subsection (1) which empowers selected District Judges to hear appeal from the Controller can be reconciled with subsection (5) which excludes jurisdiction of the Court of law is that the District Judge is named in subsection (1) as a persona designata and not as a Presiding Officer of the principal Court in the District. It cannot be interpreted to mean that the section while excluding jurisdiction of the Court of law saved the jurisdiction of the Court of a District Judge. Such an interpretation will practically nullify the provisions of subsection (5). As a result of the examination of the provisions of section 15 we are unable to hold that the District Judge's jurisdiction has been extended so as to empower him to hear appeal from the 'Controller'. There is no indication in the Ordinance itself that the District Judge is to exercise his authority as the Presiding Officer of the principal Court in the Districts. On the other hand from the nature of his appointment; the character of his power and procedure; and the total ouster of jurisdiction of Court of law to question his order save as provided in the Ordinance it is clear that he while acting as appellate authority is not acting in his ordinary judicial capacity as the Presiding Officer of his Court that such was not the Legislature is also clear from the amendment of 1962 by which the words 'Additional District Judge' were inserted in section 15 by Ordinance XXXII of 1962."
17. It will be seen that so far from holding that this was a case of the District Judge acting as such and that, therefore, an appeal and/or revision would lie against his orders the fact that it was expressly provided that the orders passed by the Controller or the appellate authority or the High Court could not be
(l) PLD 1965 SC 459 challenged in any Court of Law, was itself one of the important factors which led to the Supreme Court holding that District Judge was not acting in his ordinary judicial capacity but as 'persona designate', ln the present case also subsection (7) of section 23-A which I have already quoted, expressly provides that save as provided in the preceding subsection which gives a right of appeal, the judgments and orders passed by the Tribunal are final. While 1 do not doubt, therefore, that if the powers conferred by the Act had merely been conferred upon the Sessions Judge there would have existed a right of appeal under the Criminal Procedure Code to this Court which would also have had the power of revision over the orders of the Tribunal. 1 cannot ignore the fact that all such powers are expressly excluded. Indeed I do not see why it was necessary under subsection (6) to confer a right of appeal if this was not so; there would have been a right of appeal in any event under section 410 of the Criminal Procedure Code if the argument of learned counsel for the applicants had been well founded.
18. I am, therefore, constrained to hold that this Courll has no power to interfere in revision with any orderjo of the Tribunal. The application is, therefore, dismissed. |
19. I have no doubt, however, that if the application for exemption from personal appearance is repeated before tire learned Judge he will realise that his power is not limited to that conferred by section 205 of the Code but that section 353 also confers power. He will also undoubtedly have Tegard to the fact that three of the petitioners come from fairly distant places like Swat and Peshawar and will pass such order as he thinks just and proper in the circumstances of the case. .