' The present revision application has been filed by petitioner Sundar Das impugning an order dated 26-1-1974, passed by the First Additional Sessions Judge, Hyderabad, whereby an earlier order of dismissal of a complaint filed by respondent Muhammad Hassan against the petitioner Sundar Das as well as Khushi Ram and Pirabhdas was set aside and further enquiry was ordered.
2. The brief facts are that on 28-5-1971 respondent Muhammad Hassan filed the complaint in question under section 406/420/506, P. P. C. In the Court of the Civil Judge and Additional City Magistrate, Hyderabad, Sind. The Magistrate held a preliminary enquiry and on 27-7-1971 passed the short order to the following effect :-- "From the material brought on record the dispute appears to be of a civil nature. The application is therefore, dismissed."
Aggrieved by such order of the Magistrate, respondent (complainant) Muhammad Hassan filed a revision application in the Court of First Additional Sessions Judge, Hyderabad on 4-11-1971. When this revision application was called for hearing on 16-5-73, it was dismissed for non-prosecution on account of absence of respondent (complainant) Muhammad Hassan (the applicant in the revision application) and his Advocate. It seems that on the same day a restoration application was filed in regard to which notice was issued to the respondent (accused) for hearing on 3-7- 1973. This application for restoration was ultimately heard on 2-11-1973 and the First Additional Sessions Judge, Hyderabad holding that there was no provision for restoration of a dismissed criminal revision application, the application for restoration did not lie and as a consequence was dismissed. I may also state that this application for restoration was not even pressed. Surprisingly, on 5-12-1973 respondent Muhammad Hassan filed a fresh revision application before the same learned Additional Sessions Judge wherein he impleaded only the State as a respondent but did not implead the present petitioner or the co-accused as respondent. This second revision application was filed on 5-12-1973 and was heard and disposed of on 26-1-1974. By such order the Additional Sessions Judge has directed further enquiry into this case.
3. The main contention of Mr. Nooruddin Ramzan, the learned Advocate for the petitioner is that the application was disposed of and an order to the prejudice of the petitioner/accused was passed without notice and hearing. In such behalf the learned Advocate relied on the proviso to section 436, Cr. P. C. The proviso reads as follows "Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged, unless such person has had an opportunity of showing cause why such direction should not be made."
It would be clear from the proviso that notice is mandatory only when) an order of discharge is sought to be set aside but it has no application A in cases where the revision application arises out of an order of dismissal of complaint. No mandatory notice is contemplated in cases of revisions against an order of dismissal of complaint.
The matter however, does not end there, because in the earlier revision application the present petitioner and co-accused were impleaded as respondents and notice was issued to them. Such revision application was dismissed and for such reasons, in all fairness, the Session Court should have issued a notice to the petitioner and the co-accused before passing an order setting aside the earlier order of the Magistrate dismissing the complaint. Under section 440 of Cr. P. C. The Court has the power to hear the party although the Criminal Procedure Code may not have made a specific provision for hearing of the adverse party.
4. On such ground I am of the view that this revision application should be accepted and I accordingly accept the same. In the result the Additional Sessions Judge shall re-hear the revision application after giving notice to the petitioner and co-accused. The Additional Sessions Judge should also consider if a second revision application was maintainable on same facts and whether the revision application is within time in view of the Federal Capital and Sind Criminal Court Circulars.