P L D 1976 Supreme Court 555 (PLP)

MUHAMMAD YAQUB ALI, J.

On a complaint filed by one Faiz Alam against the appellant under sections 406 and 420, P. P. C., the Magistrate has after recording preliminary evidence framed charges against him on both the counts The appellant felt aggrieved and filed a revision petition against the order of the Magistrate in the Court of the Sessions Judge under .section 435, Cr. P. C. for quashing the charges on the ground that the .dispute between the parties was of civil nature. The Sessions Judge was favourably impressed by the plea and made a reference to the High Court with the recommendation that the charges be quashed. The matter came up before a learned Single Judge of the Lahore High Court who dismissed both the revision petition and the reference without issuing notice to the appellant. Leave to appeal was granted to consider the plea whether in the absence of notice to the appellant, the order passed by the High Court was vitiated. The appellant relied on the provisions of subsection (2) of section 439, ..Cr. P. C. which provides :

"439.-(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence." It was contended in support of the appeal that both the orders passed by the High Court were to the prejudice of the appellant and as such it was mandatory to issue notice to him. If subsection (2) of section 439, Cr. P. C. stood, by itself, it could be argued that rejection of the revision petition filed by the appellant without hearing him, had operated to his prejudice but the next succeeding section specifically provides that no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision. The proviso to the section lays down that the Court may, if it thinks fit, when exercising, such powers, hear any party either personally or by pleader and that nothing in this section shall be deemed to affect section 439, subsection (2) ; meaning thereby that no order to the prejudice of the accused shall be made unless he has had an opportunity of being heard. The crux of the proposition is whether refusal by the High Court to interfere with the order against which revision petition was filed, is an order to the prejudice of the accused within the purview of section 439 subsection (2), Cr. P. C. The answer obviously is in the negative. Otherwise the provisions of section 440 will be rendered nugatory for in that case it will be incumbent upon the High Court to hear the accused before dis missing the revision petition filed by him either personally or through a pleader. To harmonize the provisions of section 439(2) and section 440, it must be inferred that in dismissing the revision petition, the order passed by the High Court does not operate to the prejudice of the accused. In other words, the order with which the accused feels aggrieved is passed by the Courts below and the High Court has simply declined to interfere with it. Cases in which notice to the accused is necessary, for example, will be where the Court which exercises revisional power either sets aside the acquittal and i orders retrial or enhances the sentence awarded by the Courts below or itself passes any other order which is to the prejudice of the accused. Ire this view, subsection (2) of section 439 will apply to cases of this nature and not to cases in which the Court exercising revisional jurisdiction does not interfere with the order passed by the Courts below. No fault can, therefore, be found with the impugned order passed by the High Court without giving an opportunity to the appellant of being heard either personally or through a pleader. The only ground on which leave to appeal was given thus fails. Some arguments were addressed by the learned counsel for the appellant on the merits of the accusation on which the complaint proceeds but we think it inadvisable to make any comment on them as the question of guilt or innocence of the appellant is pending in the Court of trial Magistrate. The appeal is dismissed. S. A. H. Appeal dismissed