P L D 1962 (W (PLP)

2. Briefly, the facts giving rise to this matter are that the respondent Mr. Abrar Hussain Shah, is the proprietor of the Nishat Talkies at Nawabshah, and as the result of a raid made upon this cinema by officers of the Excise and Taxation Depart ment on 5‑5‑1957 certain irregularities resulting in evasion of entertainment duty were discovered, resulting in a complaint filed on 16‑5‑1957 against the respondent in the Court of the Joint Sub‑Judge and First Class Magistrate, Nawabshah for offences under sections 5 and 7 (2) of the Entertainment Duty Act, 1923. This prosecution had a somewhat chequered career consequent upon the legal objections as to its maintainability taken by the respondent and pursued by him even upto this High Court with the result that the actual recording of evidence only commenced on 27‑6‑1960 on which day the examination‑in‑chief of the complainant was recorded. Thereafter, the case continued again on 9‑9‑1960 and 14‑10‑1960 when some legal objection was raised by the defence advocate for which purpose the presence of the complainant was excused until the decision of this legal point. It was at the hearing on 30‑11‑1960 that the learned Magistrate directed fresh summons to issue to the complainant for the next day of hearing on 12‑12‑1960.

3. It appears that these summons were despatched on 7‑12‑1960 by Registered Post to Umerkot in Tharparkar District where the complainant had, by that time, been transferred. These summons were not sent by Registered Post with Acknowledgment Due and, secondly, they were despatched only on 7‑12‑1960 for a date of hearing five days later and were to be served on a touring officer who is mostly away from his head quarters. Thus, these summons did not reach the complainant in time for the hearing on 12‑12‑1960 and he was, of course, absent on that date. The learned Magistrate, despite all these facts, on finding the complainant absent when the case was called, up for hearing on 12‑12‑1960 in his Court, acquitted the respondent under section 247 Cr. P. C. The learned District Magistrate, Nawabshah in his reference dated 17‑4‑1961 has recited the above facts and has also stated that he himself examined the original envelope that was sent by the Magistrate's Court containing the summons to the complainant, and found hat it contained an endorsement of the postman showing that the letter remained in deposit with the Post office upto 17‑12‑1960, as the addressee was not traceable. Hence on these facts, the District Magistrate recommends that the acquittal be set aside and a retrial ordered.

4. Mr. Muhammad Hayat Junejo appearing on behalf of the respondent raised two contentions. He argued, in the first place that section 439 (5) Cr. P. C. is a bar to the acceptance of the present reference. He contended that the District Magistrate, Nawabshah, in his letter of reference to this High Court had admitted that the matter came to his notice when the Excise and Taxation Officer, Nawabshah, requested for the services of an Assistant Public Prosecutor to draft an appeal under section 417 Cr. .P. C. Such an acquittal appeal was then open to the District Magistrate and since he 4ad failed to bring such an appeal, no proceedings by way of revision can now be entertained at his instance because of the imperative language of section 439 (5) Cr. P. C. In support of this contention Mr. Muhammad Hayat Junejo referred me to two reported cases of the former Court of the Judicial Commissioner of Sind reported in Jumo Wali Mahomed v. Emperor (A I R 1914 Sind 139) and Emperor v. Janu Fakir (A I R 1922 Sind 22). I have examined both these cases and I find that they fully establish the point that the High. Court will not interfere udder section 439 Cr. P. C: in its Revisional Jurisdiction in cases where an appeal was open to the party concerned. In the former of these two cases the learned Judges even noticed the argument that the High, Court can interfere of its own motion in cases where a person affected is debarred from moving it under section 439 (5), Cr. P. C: but they went on to hold that‑-- "It would be a pure quibble to say that, in spite of the provisions of 439 (5) of the Cods the Court could do what applicant wants, of its own motion. This would be a mere evasion of, the statute which the Court cannot permit." Mr. Junejo further invited my attention to a case reported in State v. Alakh Narain Singh and others (A I R 1954 Pat. 161), which reviewed the entire case law on this question and held that the bar of section 439 (5), Cr. P. C. operated even if the State instead of coming to the High Court direct has come through the Additional Sessions Judge, and on a reference made by him. In this judgment, their Lordships referred to two judgments of the Supreme Court of India in support of this view reported in D. Stephens v. Nosibolla (AIR 1951 SC 196) and Logendranath Jha v. Shri Polai Lal Biswas (AIR 1951 SC 316). They further pointed out that the verb used in section 439 (4) and (5) is "shall" and proceeded to say that‑

"There is ample justification for the view that if this Court cannot exercise its powers under section 439 for converting a finding of acquittal into one of conviction, it cannot also by way of revision interfere with an order of acquittal, if no appeal is brought by the State.

5. Mr. Hayat's second argument was based on com passionate grounds. His client has already faced this prosecution for more than four years and having regard to the fact that the maximum punishment that can be imposed upon him is only a fine of Rs, 500 in respect of each offence and the numerous rulings of various High Courts that where there has been delay in prosecutions the High Court will not order a retrial, this present reference should not be accepted.

6. Mr. Shamsuddin appearing on behalf of the State con tended that section 439 (5), Cr. P. C. is not an absolute bar and cannot affect cases such as this in which there has obviously been a miscarriage of justice. He referred in this connection to two cases reported in Waryam Singh Arur Singh v. Emperor (1942 Cr. L J 660) and Chairman of the District Board, Hooghly v. Bagala Kumar Chatterjee (A I R 1949 Cal. 658). With regard to the delay in the conduct of this prosecution in the Court below Mr. Shamsuddin pointed out that the conduct of this case has been protracted because of the various legal objections taken by the respondent to the maintain ability of this prosecution and his pursuing these objections through the Sessions Court even upto this High Court. Thus, the many cases referred to by the respondent's Advocate on the principle of delay are distinguishable from the facts of this particular case.

7. I have considered the facts of this case, the arguments urged before me and the cases referred to by the advocates. To me it is plain that the trial Magistrate was somewhat hasty in acquitting the respondent under section 247 Cr. P. C. without having given the complainant an opportunity of being served with the summons issued to him. Nevertheless, the fact remains that this error committed by the trial Magistrate was easily remediable through the medium of an acquittal appeal. In fact even the complainant had approached the District Magistrate with a request for the services of an Assistant Public Prosecutor to draft an appeal under section 417 Cr. P. C., yet the District Magistrate did not move in the matter of an acquittal appeal but chose to address this reference to this High Court for the purpose of bringing into operation the Revisional Jurisdiction of this High Court. Now, it has been held again and again that this Revisional Jurisdiction is one that has to be exercised sparingly and only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or for the prevention of a gross miscarriage of justice. Where the law provides a remedy by way of an appeal and the party who could avail himself of this remedy does not choose to do so, this High Court will not call into service its Revisional Jurisdiction in order to assist such a party. Besides, the language of section 439 (5), Cr. P. C. is imperative and the verb used is "shall" and not "may".

8. I am also of the view that the respondent who has had this prosecution hanging over his head for more than four years from 16‑5‑1957 upto date has undergone sufficient mental worry and anxiety, not to speak of expenses so as to induce me not/ to order a retrial in this ease. The offences alleged against him are more or less of a technical nature and are punishable only with a maximum fine of Rs.

500. Having regard to all these facts and circumstances I am not inclined to accept this reference and direct that it be returned to the District Magistrate, Nawabshah. S. B./A. H. Reference rejected.