1981 PLP 171 (SCMR)

SHAFI-UR-REHMAN, J..-The petitioner, a serving Judicial Officer, seeks leave to appeal against the judgment of the Sind High Court dated 10-9-1979 whereby an application filed by him under section 561-A, Cr. P. C. for expunction of remarks recorded in a judgment was dismissed in limine

2. The petitioner H1as, at the relevant time, holding the post of IInd Additional District and Sessions Judge, Hyderabad. In that capacity he had been empowered by the Sessions Judge, Hyderabad, "to do the scrutiny work regularly and carefully, send for R & P in suitable matters and make reference or entertain revisions" if found necessary. While scrutinizing the returns of one of the Magistrates the petitioner carne across the dismissal of eleven complaints filed by the Labour Inspector against the occupier and Manager of one of the companies, for violation of provisions of Manager Factories Act. The petitioner considered those to be fit cases 'ton examination in suo motu revision. He directed notice to the concerned. While this matter was pending for service of notices a requisition was received from the Court of the ist Additional Sessions Judge calling for the R & Ps. relating to these cases. The petitioner directed his office to put up the required documents to him but it appears that the official concerned ,transmitted tae record directly to the ist Additional Sessions Judge. It appeared that the Labour Inspector had filed regular revision petitions against these very orders. The ist Addi tional Sessions Judge dismissed the revision petitions on 7-2-1977 and returned the record to the Court of the petitioner on 19-2-1977.

3. On receipt of the record on 19-2-1977 the petitioner reported to the Sessions Judge in detail the misconduct on the part of his office in sending the record direct to ist Additional Sessions Judge: without putting it up to him and considered "this unauthorized and illegal remove of official judicial proceedings is a very serious offence and such cannot be taken lightly".

4. The respondents in the suo motu criminal revision were served and made appearance in the Court of the petitioner on 16-3-1977 through their counsel but the petitioner was on leave on that date, and the case was adjourned to 13-4-1977 on which date neither the; counsel nor the respondent appeared. The petitioner therefore initiated action under section 174, P. P. L. against the defaulters and non-bailable warrants of arrest were ordered to be issued for securing their attendance.

5. The respondents in the suo motu criminal revision moved the High Court under section 561-A, Cr. P. C. against these orders of the petitioner. In substance their grievance was that the order which was sought to be revised by the petitioner suo motu had in fact been dealt with finally by the ist Additional Sessions Judge on regular revision petitions filed by the Labour Inspector. An officer of co-ordinate jurisdiction having already dealt with the matter it was no longer open to the petitioner to deal with it or to take punitive action against those persons.

6. The learned Judge in the High Court while accepting the petition on 2-5-1978 made certain observations against the handling of the proceedings by the petitioner. He found that there was "nothing to suggest that there was away order of the Sessions Judge delegating his powers of hearing revision matters in general to the Und Additional Sessions Judge" and he "acted without jurisdiction when he called for the records of the lower Court". Another remark made was that "the matter had already been heard and disposed of by an order of the ist Additional Sessions Judge passed earlier. The IInd Additional Sessions Judge could not, therefore, sit in judgment" Finally it was observed that "it is in fact difficult to understand as to what prompted that 1lnd 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".

7. A. copy of this judgment of the High Court was transmitted to the petitioner along with the direction of the Chief Justice to be more careful in future.

8. The petitioner on receipt of the copy of the Judgment and the remarks of the Chief Justice filed a petition under section 561-A of the Cr. P. C. for expunction of the remarks explaining at length the nature of the power delegated to him and the circumstances justifying its exercise in that manner. It ultimately was given the form of a petition under section 561-A, Cr. P. C. seeking review of the order dated 2-5-1978.

9. The carried Judge; in the High Court examined the submissions made by the petitioner and found legal cover for the action taken by the petitioner in the delegation order of the Sessions Judge. Nevertheless, it appears the learned Judge was not satisfied with regard to the petitioner having continued parallel suo motu criminal revision proceedings after formal revision petitions had been filed by the affected party and had been disposed of. The petition was dismissed.

10. The learner! Counsel for the petitioner submitted that in the back. Ground of the events as they took place the action taken by the petitioner "as with lawful authority and bona file. He could not. According to the learned counsel be burdened with knowledge that revision petitions filed by the Labour Inspector related to the same order or proceedings and final disposal of the matter had taken place in a manner to affect his jurisdiction and the proceedings 'before him.

11. The two letters received from the ist Additional Sessions Judge by the petitioner-One requisitioning the record, and the other, sending back the. Record when it was no longer required, mentioned the name of the parties, the fact that it was a criminal revision and also the law under which the com. plaints had been filed. This much of information contained in the two letter which were put up to the petitioner should have ordinarily been sufficient to put him on enquiry with regard to the nature of the proceedings and its effect on the matter before him. He had to ensure that an identical matter was; not pending in another Court and he could have easily informed himself of the nature of the proceedings and its effect on the proceedings before him. The petitioner has in passing fairly detailed orders in the proceedings shown full awareness of the matter before him and it was the requirement of that awareness itself that he should have looked at it from another angle as well. The alleged misconduct of the subordinates in his office with regard to transmission of the record has nothing to do with his own responsibility. In the circumstances, the High Court was not fully satisfied with his explana tion and declined to expunge the remarks. It cannot be said that the High Court has committed any error of law in so inferring from these facts. There is no merit in the petition, which is dismissed. Petition dismissed.