P L D 1966 Supreme Court 126 (PLP)

HAMOODUR RAHMAN, J. This appeal, by special leave, is Hamoodur directed against an order of a learned Single Judge of the High Court of West Pakistan, which he passed on the 27th of May 1964, while inspecting the Court of the Additional District Magistrate, Montgomery. The appellant was accused in an old case under section 408 of the Pakistan Penal Code which was started on the 30th of December 1959. As he was absconding till the 30th of August 1963, a supplementary challan was put in on the same day in the Court of the Additional District Magistrate who had in the meantime allowed him bail. Since then the appellant had managed to have the proceedings dragged on for one reason or another and the Additional District Magistrate had started separate proceedings for confiscation of his bail bond and surety bonds. But on the 8th of May 1964, the appellant obtained another order from the Sessions Judge allowing him to remain on the same bail as before. He was summoned by the A. D. M.'s Court to appear on the 21st of May 1964, but he failed to do so. In these circumstances the learned Judge passed the impugned order observing as follows: "It is obvious that Mushtaq Ahmad is abusing the liberty allowed to him by the learned Sessions Judge owing to his release on bail. In these circumstances, I consider that his bail should be cancelled, and I direct the Additional District Magistrate to issue non‑bailable warrants against him. His arrest shall be reported to me as also the further progress of this case." In compliance with this order the A. D. M. on the 28th of May 1964, recorded the following order: "As ordered by the learned Judge of the High Court, Mr. Justice Sajjad Ahmad, non‑bailable warrant of arrest to issue against the accused for 4‑6‑

64. P. S. I. please arrange special service, Against this order of the learned Single Judge of the High Court the appellant on the 18th of June 1964, applied to this Court for special leave and leave was granted to him to consider whether in the circumstances of this case the learned Single Judge of the High Court was properly seized off' the case in any judicial sense. He was also directed to be enlarged on ad interim bail to the satisfaction of the Registrar of this Court. Learned counsel appearing in support of this appeal has contended that the learned Single Judge of the High Court had no jurisdiction whilst inspecting a Court in his administrative capacity to pass a judicial order, and even if it is contended that this order was made in exercise of the powers under section 439 of the Code of Criminal Procedure, the order was bad, as it did not comply with the provisions of subsection (2). Learned counsel appearing for 'the State, however raises a preliminary objection and contends that since the impugned order was made in the administrative capacity of the learned Judge, no appeal lay therefrom to this Court. We see no substance in this preliminary objection, for, it is obvious that an order directing the Magistrate to cancel bail and to issue non‑bailable warrants against the appellant and to report his arrest to the learned Judge could not have been made as an administrative order, and must be treated as a judicial order. Under section 439 of the Criminal Procedure Code the High Court has a power to interfere upon information in whatever way received, as the section clearly says that it may do so in any case in which it has itself called for the record or which has been reported for orders or "which otherwise comes to its knowledge". These are words of wide import. In the present case the record of the case was placed before the learned Judge A in the course of his inspection and the facts of the case thus came to his knowledge. Under this section the High Court has also the right to exercise its power on its own initiative and there can be no warrant for the proposition that the High Court is debarred from examining the record suo moto. But in this event the learned Judge, should, in‑our opinion, have followed‑ the procedure laid down by the said section, since he was disposed to make an order to the prejudice of the appellant. Subsection (2)' of section 439 clearly provides that "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". In this case the appellant was clearly denied this opportunity. Neither the learned Judge of the High Court nor the Additional District Magistrate, who passed on the very next day the order for the issuance of non‑bailable warrants in compliance with the orders of the learned Judge, gave him any show‑cause notice. The cancellation of the bail of the appellant was, therefore, clearly contrary to law and in violation of the principle of natural justice. In these circumstances, this appeal must, in our view, succeed. It is, accordingly, allowed and the order of the learned Judge passed on the 27th of May 1964, and that of the Additional District Magistrate passed on the 28th of May 1964, are hereby set aside The record of the case called for by this Court must be immediately returned to the Court of the Additional District Magistrate and he should proceed ‑to dispose of the case , in accordance with law. The appellant will, in the meantime, con tinue on the bail already granted to him by this Court, but if there should be any further ground for the cancellation of his bail, the Magistrate will proceed to take action in accordance with law after giving the appellant an opportunity of showing cause. K. B. A. Appeal accepted.