This Petition under section 561-A, Cr. P. C. Is directed against an order passed by the IInd Additional Sessions Judge, Hyderabad in a suo motu revision under the following circumstances;
1. One Mr. Attaullah Khan Rana, Labour Officer, Government of Sind, Hyderabad filed 11 complaints under the Factories Act, 1934 against the Occupier and Manager, Volkarvan Pakistan Limited, for failure to comply with the provisions of the said Act, in the Court of S. D. M. City, Hyderabad. The S. D.
M. Passed an order that the case may not fall under the Factories Act. He, therefore, called the accused and the complainant for a hearing before passing any further orders on the complaint.
The S. D. M. Then heard the parties on the questions whether the Factories Act was applicable to the case of a construction-Company and whether both the accused i.e. Occupier as well as Manager were liable for prosecution. The accused made a written submission that the workers employed on a construction work were not covered under the Factories Act, 1934 as the construction--- Company could not be considered as an industrial establishment. A photostat copy of a letter issued by the Chief Inspector of Factories, West Pakistan, Lahore was produced to that effect. The learned S. D. M. Then passed an order in all the 11 cases that by `factory' was meant any premises or precincts where 10 or more workers carried out any manufacturing process. That the definition of `factory' did not cover a construction-Company. As such the complaints were dismissed under section 203, Cr. P. C. On 6-3-1976.
2. The Labour Officer filed revision applications in the Court of Sessions Judge, Hyderabad dated 10th April, 1976 against the order of the S. D. M. In respect of these cases. The applications were admitted and then heard by the 1st Additional Sessions Judge, Hyderabad as Cr. Revision Applications Nos. 196 (196-A to 196-J). These connected 11 revision applications were disposed of by an order dated 7th February, 1977 by Mr. Taj Mohammad Abro, 1st Additional Sessions Judge, observing that the order of the learned S. D. M. Was valid and proper and he was quite competent to dismiss the complaints under section 203, Cr. P. C. For the reasons stated by him.
3. Meanwhile on getting the information about dismissal of these complaints the IInd Additional Sessions Judge, Hyderabad Mr. Syed Iqbal Hassan also passed an order on 1-6-1976. This order was supposed to have been passed in a Suo Motu Revision No. (Nil) of 1976. It was stated in this order that after summoning of the R & P of the case from the Court of S. D. M. City, Hyderabad the order of dismissal of complaints passed by him on 6-3-1976 was perused and R & P was examined ; that the lower Court after taking cognizance and calling the accused had dismissed the complaints under section 203, Cr. P. C.; that it was a fit case in which the correctness, legality and propriety of the order passed by the S. D. M. Was to be examined by exercise of suo mote criminal revisional powers. The learned IInd Additional Sessions Judge, accordingly issued 'notices to the parties, for appearance.
4. A notice was actually issued on 26th February, 1977 after about 8 months. The learned Second Additional Sessions Judge then passed an order dated 13-4-1977 that the two accused persons against whom notice had been issued were called absent ; that they .Were legally bound to attend the Court in obedience to the notice, as directed in connection with the suo motu revision ; that they rendered themselves liable for action under section 174, P. P. C. The learned Additional Sessions Judge ordered prosecution of both the accused under section 174. Non-bailable warrants were then issued against both the accused for securing their attendance -on 3-5-1977. After this order was passed on 13-4-1977 the petitioner, Manager of Volkarvan Pakistan Limited moved the High Court on 20-4-1977 for quasbment of the said order of IInd Additional Sessions Judge, Hyderabad.
5. The records of suo motu revision and the regular revision applications were called for and they have been perused. It does not appear from the record that any, order regarding suo motu revision was passed by the learned Sessions Judge and the matter was transferred by the Sessions Judge to the Additional Sessions Judge. It appears that action was taken by the IInd Additional Sessions Judge himself without the matter having been transferred to him by the Sessions Judge. Under section 439-A, Cr. P. C. The Sessions Judge can call for a record, in any proceeding before him, or which otherwise comes to his knowledge. Under subsection (2) an Additional Sessions Judges shall have and may exercise all the powers of a Sessions Judge, in this Chapter, in respect of any case which may be transferred to him, under an, general or special order of the Sessions Judge. There is nothing to suggest that there was any order of the Sessions Judge delegating his powers of hearing revisional matters in general to the IInd Additional Sessions Judge. The IInd Additional Sessions Judge, therefore, acted without jurisdiction when he called for the records of the lower Court because it came to his, knowledge that certain matters had been dismissed by the S. D. M.
6. In any case the matter had already been heard and disposed of by an order of the Ist Additional Sessions Judge passed earlier. The Had Additional Sessions Judge could not, therefore, sit in judgment on the order of the Ist Additional Sessions Judge and in effect set aside that order. It is in fact difficult to understand as to what prompted the IInd Additional Sessions Judge to take such extraordinary interest in this disposed of matter, and order prosecution under section 174. P. P. C.
Without even hearing the' accused and to issue non-bailable warrants against them, that is, the Occupier and Manager of a Limited Company doing the work of construction. In fact it appears from the order-sheet of the IInd Additional Sessions Judge dated 19-2-1977, that he had knowledge that the said matter had been heard and disposed of by the Ist Additional Sessions Judge, Hyderabad and the record was directed to be returned to the concerned Court. The said order of the I1nd Additional Sessions Judge purporting to have been made in the course of .Suo motu revision was thus an illegal order passed without jurisdiction. That order being a nullity in law, all the subsequent orders passed by the IInd Additional Sessions Judge in the matter for prosecution of the petitioner for non-appearance on notice etc. Would be of no legal effect.
7. The petition under section 561-A, Cr. P. C. Is accordingly allowed and the entire proceedings in respect of the suo mote revision by the IInd Additional Sessions Judge, Hyderabad are hereby quashed.