P L D 1972 Lahore 185 (PLP)

Appa Rao Mudaliar v. Janakiammal A I R 1927 Mad. 18; P. Varadarajulu Naidu v. P. Kuppaswami Naidu A I R 1927 Mad. 18 and Gajraj Singh and others v. Emperor A I R 1925 Ail. 537 ref. Mazhar Hassan for Petitioners. Abid Nawaz for the State. The facts giving rise to this petition briefly are that Ghulam Nabi respondent No. 1 filed a complaint under section 380/420, P. P. C. against ten persons including the three petitioners in the Court of Mr. Muhammad Masood Khan, Magistrate Section 30, Lyallpur. The learned Magistrate forwarded the complaint to the local police for inquiry and report and ulti mately dismissed the same under section 203, Cr. P. C. vide his order dated 27‑I1‑1969. Feeling aggrieved the respondent‑complainant filed a revision petition before the learned Sessions Judge, which was listed before the learned Additional Sessions Judge on several dates but proceedings could not make any head way owing to the non‑service of the respondents including the petitioners. Ultimately vide the impugned order dated the 3rd of April 1971, the learned Additional Sessions Judge issued non‑bailable warrants against the petitioners in order to procure their attendance. Feeling aggrieved they have preferred the present revision petition.

3. Learned counsel for the petitioners contends that the only relevant provision under which processes could be issued against the petitioners and the other co‑accused is the one contained in the proviso to section 436, Cr. P. C., which can be invoked only in the case of discharge and not in the event of dismissal of the complainant under section 203, Cr. P. C. I see much force in the contention raised by the learned counsel. Obviously the object of the proviso to section 436, Cr. P. C., which was added by the Act XVIII of 1923 is to safeguard the legitimate, interests of person discharged in a complaint case so that no order to his prejudice could be passed without giving him any opportunity of being heard. Further if the Court issuing notice to him was of the opinion that he was deliberately trying to be evasive or did not care to attend the Court despite notice it would be justified in proceedings in the matter in his absence. The position in the case of dismissal of the complaint under section 203 is quite different inasmuch as the person arranged as an accused in the complaint so dismissed stands on a much higher footing. Since the learned Magistrate taking cognizance of the matter never considered it necessary to issue processes against them for the reason that no sufficient grounds for proceedings against them were made out they could not have been summoned by the learned Additional Sessions Judge much less could coercive processes be issued against them. If an authority is needed reference may be made to Appa Rao Mudaliar v. Janakiammal (A I R 1927 Mad. 19) wherein P. Varadarajulu Naidu v. P. Kuppaswami Naidu (A I R 1927 Mad. 18) and Gujraj Singh and others v. Emperor (A I R 1925 All. 537) were also considered. Accordingly the issuance of processes against the petitioners was neither advisable nor otherwise warranted by any of the provisions contained in the Cr. P. C. The only justifications that could have weighed with the Additional Sessions Judge in having recourse to the procedure adopted by him would be to meet a possible objection on the part of the petitioners in the event of success of the revision that an order to their prejudice was passed behind their back without affording them an opportunity of being heard. Since the learned Additional Sessions Judge is under no legal obligation to issue notice against the petitioners and others, they cannot turn round and attack the order on that ground, if passed against them.

4. In view of the above position the warrants issued by the learned Additional Sessions Judge stand cancelled.

5. Before parting with this case it may be observed that the petitioners had impleaded in this petition as respondents both Ghulam Nabi complainant and the State. Several notices were issued to both of them. The former could not be served. Since, however, the point involved is merely one of a legal character, notice to the State has been considered good enough for the disposal of this case without any further waste of time.