P L D 1956 Lahore 505 (PLP)

KAIKAUS, J.‑This is an application for the transfer of a case under section 408 P. P. C., pending against the petitioner in the Court of Mr. Mahabat Khan, Magistrate with section 30 Powers, Lahore. Before I deal with the case on merits, I have to decide a preliminary point raised by the Crowns. Before the present application for transfer was submitted by the petitioner he had already put in an application for transfer on the same grounds, which came up for kasha hearing before Shabir Ahmad, J., who called for a report from Mr. Mahabat Khan. On the day of hearing, no one appeared for the petitioner and Shabir Ahmad J., after considering the report of the Magistrate, dismissed the application. The present application is based on the same grounds and is in fact an exact copy of the previous application: Learned counsel for the petitioner urges that the previous decision is not a bar to the hearing of the present application for transfer because the only statutory bar to hearing is that contained in section 369 Criminal P. C., which does not apply. He says he was prevented by sufficient cause from appearing on the date of hearing and as a result there were some important matters which were not brought to the notice of Shabir Ahmad J. Learned counsel for the Crown contends, on the other hand, that even if section 369 Criminal P. C., does not apply, there is an implied bar to the hearing of the same matter over again on the general principle of finality of orders. Section 369 of the Criminal P. C., which prevents a judgment from being altered except to correct a clerical mistake, obviously does not apply. A reference to the preced ing and succeeding sections occurring in Chapter XXVI, which is headed "Of the judgment" makes it clear that judgment has reference only to the order (with reasons therefore) passed at the end of a trial by a Court exercising original criminal jurisdiction. Section 366 refers expressly to a trial. Section 367 provides that the judgment shall contain reasons for decision and shall specify the offence and the punishment. It provides too that an order under section 118 or 123 shall also be regarded as a judgment, which would suggest that but for this express reference orders under section 118 or 123 would not be judgments. Section 371 entitles the accused to get a copy of the judgment. That section 369 applies only to judgments of Courts exercising original jurisdiction is put beyond doubt by section 424 which makes the section applicable to appellate judgments except those of a High Court. The applicability of a bar apart from section 369 is as obvious as the non‑applicability of section

369. There is a principle of finality of proceedings which does not need being incorporated in any section of the Criminal P. C. If there was no general principle of Yes‑judicata there would be no end to litigation. Also once a Court decides a matter it exhausts its jurisdiction and it cannot in the absence of a provision to that effect decide the matter once again. If the contention that apart from section 369, there is no bar at all to the re‑hearing of a matter, were accepted a large number of orders about whose finality there could not be any doubt would be open to review. The judgment of a High Court even in appeal from conviction or acquittal is not governed by section 369 or

424. Section 430 does say that a judgment on appeal will be final but that only means it will not be open to further appeal. Section 430 is not a provision of the nature contained in section 369 whose wording is different and had the object of section 430 been to bar a review it would be redundant so far as appellate Courts other than the High Court are concerned to any case the judg ments of the High Court in revision, and orders passed in relation to proceedings under sections 133, 145, 1188, 517, 523 and 107 Criminal P. C. are not judgments within section

369. It could hardly be argued that the High Court, 'after hearing a revision and acquitting or maintaining the conviction of an accused, could reopen the matter. Similarly final orders which are passed in relation to proceedings under sections 488, 145, 133 and 517 Criminal' P. C. could not be regarded as liable to review once a decision has been given on the merits. We have to recognise, therefore, a principle of finality of orders apart from section 369 Criminal P. C. Learned counsel for the petitioner contends that there being no statutory bar if we were to apply a general principle we should apply it only in cases where justice calls for its application and we should not apply it to a case like the present where counsel for a party was prevented by sufficient cause from arguing his case. The question then which falls for determination is this in a case which is not covered by section 369 Criminal P. C., can a judgment‑ of order be set aside or reviewed on the ground that a counsel for a party who had notice of the date of hearing was prevented by sufficient cause from appearing (It is admitted that according td rules of this Court he had notice of the date of hearing). For the purpose of the present argument I will assume that counsel was so prevented. Now there does seem to be some force in the argument that if a party who had a right to argue his case was prevented by sufficient cause, he should be allowed an opportunity of arguing the case and any orders passed in his absence should be subject to review. As there is no statutory bar it appears to be a plausible argument that the general principle should be applied only in cases where justice demands its application. On the other hand, it seems difficult to accept the proposition that an order on merits can be set aside on the ground that counsel for a party was unable to appear on account of sufficient cause, because of the consequences which its acceptance would entail. So far as convictions and acquittals are concerned, this principle will obviously not hold good. Assume that an accused person is acquitted an revision by the High Court when counsel for the Crown is not present. An application is submitted by the Crown that counsel for the Crown had been prevented by sufficient cause from arguing the 'case and that as a result some important matters were not brought to the notice of the Court. Assume further that the cause for the absence of counsel is also a very good one. Should the revision petition be re‑heard and can the accused be convicted on a re‑hearing because counsel for the Crown was unable to appear due to sufficient cause? I do not think such a view can be taken. There is no reason to distinguish in this respect between appeals and revisions. If in an appeal before a Sessions Court an accused had been acquitted in the absence of counsel for the Crown who had good and sufficient cause for not appearing, there will be a bar on account of sections 369 and 424 Criminal P. C. to the reopening of the matter. Of course, a case where notice was not served on the Crown would be different, for in such cases the order passed may be said to be without jurisdiction, having been passed without notice and being in contraven tion of section 422 Criminal P. C. I am here considering a case where a notice had been served but the Crown counsel was prevented by any good cause from appearing. It appears to me that if in an appeal before the Sessions judge a matter is not liable to be reopened, there should not be a different principle applicable to an appeal before the High Court nor has it aver been suggested that the judgment of a High Court in appeal could be reviewed and there does not appear to be any good reason for placing revision on a different footing. Nobody has ever suggested that an acquittal on revision could be set aside on the ground that counsel for the Crown was unable to appear for no fault of the Crown. If the proposition put forward would not apply to con yicti9ns and acquittals, can it apply to other final order passed by original and appellate Courts or the High Court under the provisions of the Code of Criminal Procedure? While on the one hand, it may seem reasonable to allow a full opportunity of hearing, it should be kept in mind that there would be no limitation for applications for rehearing and there would be no bar to the review of an order after a very long time. Orders would be robbed of the value, which attaches to finality. It is to be remembered that under the Criminal P. C. decisions are given on merits even though a party be absent. It would be more conducive to justice that the orders be final though in some cases a party may not have had a full opportunity of argument rather than that the order be permanently open to review. The Criminal P. C., when it intends that an order be set aside if ex‑parte makes a provision to that effect. I may refer to section 488 which permits an ex‑parte order to be set aside on application within three months. In cases where the Code does not make any such provision, the orders should, in my opinion, be placed on the same footing as convictions and acquittals and should not be liable to reconsideration. Of course it would be different if a party was prevented from appearing by force or fraud. I would not agree, therefore, that I can rehear this petition on the ground that a general bar is subject to such qualification. I am not saying that the general bar would apply to all orders passed by a Court. I am of the opinion that it would apply to all final orders where there is an adjudication by a Court on the merits of a dispute. It may be a question relating to conviction or acquittal of an offence. It may relate to the property which is the subject matter of the offence. It may relate to proceedings under section 133 or 145, Criminal P. C. Once there has been an adjudication by the Court, the jurisdiction of the Court is exhausted and it cannot decide the matter over again. This principle can however, have no application to interlocutory orders which are not intended to be final at all and which are really subject always to the reservation that the Court may change them or make a different order. Is the order before me of an interlocutory nature? From one point of view it is. It does not decide any question with respect to the merits of the dispute that' is the subject of adjudication by the trial Court. There is another point of view however from which it may be regarded final and that is that the dispute before the High Court is as to the liability of the case to be transferred. So far as the application for transfer is concerned, the order is a final' order though in relation to the original case itself it partakes of the nature of an interlocutory order. However, in the present proceedings it is not necessary for me to decide whether, while considering the nature of the order, we are to look at it in relation to the original proceedings or in relation to the proceedings before the High Court though the argument that once the High Court has carefully gone into the grounds of transfer. and has recorded its finding it cannot reverse that finding by way of review is not without force. The powers of the High Court for transfer under section 526 Criminal P. C., are very wide. It can transfer on any ground and it need not even state the reasons for so doing. It can do so Suo motu or on the application of a party. The effect of the previous order can at the most be that the party be debarred from reagitating the matter over again. That will certainly not prevent the High Court from looking again into the matter suo motu. Suppose that there are more than one accused in a case and a transfer application put in by one accused only is dismissed in limine. Will the other accused be in any way debarred from putting in an application on the same ground? If there be no bar to such an application there in no reason why the Court cannot act suo motu ignoring the decision of the previous application and approach the matter afresh. Here the facts are that certain matters were not brought to the notice of Shabir Ahmad, J. They could not have been, because before Shabir Ahmad J. there was only a report by the learned Magistrate. Mr. Aftab Hussain has pointed out circumstances which have a serious bearing on the application for transfer and which show that the petitioner has a good case for transfer. If on going through the proceedings on the record I come to the conclusion that there is a reasonable apprehension that the petitioner will not have a fair trial in this Court and that such apprehension is created by something that the Magistrate has done, if I come to the conclusion that the petitioner as he alleges, is almost bound to be convicted if the case remains with Mr. Mahabat Khan, am I prevented from transferring the case merely because an application put in by the party had been dismissed in the absence of counsel for the party without all the facts being brought to the notice of the learned Judge? The answer is obviously in the negative. I now come to the merits of this application. The case against the petitioner is that he was a clerk in the District Transport Society, Shahalmi Gate, Lahore, and it was his duty to receive the fare money from cleaners of various vehicles and to deposit it in the treasury of the Society. He did not deposit the whole money that he received from the cleaners and even entered less amounts in the relevant documents. The main grounds of transfer which have been urged before me are two. The first is that Mr. M. A. Kalim, Secretary of the District Transport Society, who was produced as a witness, was allowed by the Court to take away as many as 306 vouchers, 334 ticket books and 22 daily statements from the Court in order that he may properly arrange them. He was allowed to take these documents to his house, in spite of the protests of the petitioner. Later on, these documents were produced piecemeal by other witnesses. With respect to this ground the report, which had been called for from the learned Magistrate, says the allegations are baseless. On a reference to the record I find that M. A. Kalim was examined on 21st of October 1954, and on the 6th of November 1954 there is an undertaking filed by him in Court saying that he will produce these documents on every date of hearing and if he committed default he would be liable to pay five thousand rupees .On a reference to the statement made on 21st of October 1954 by M. A. Kalim, I find that the same documents which he purports to prove are referred to in this bond. There is no explanation of this bond except that the witness had been allowed to take away these documents. There is another corroboration of the statement of the petitioner in this respect. In the statement of M. A. Kalim some of these documents are marked as Exhs. P. 641 to P. 662, but actually as alleged by the petitioner these documents have not been marked as such and one of them has been marked as Exh P. W.

22. The second ground of the application is that at the time of the examination of the petitioner, the learned Magistrate was not present at all, that the Public Prosecutor dictated the questions which were put to the petitioner, that when the petitioner was asked as to whether he had received the money and entered it less in the account books he stated that he entered it less on account of directions from his employers who wanted to avoid income‑tax, but that this part of the statement was not recorded and that when he represented to the learned Magis trate (when he did come) that this part of the statement should also be recorded, the learned Magistrate forced him to sign the statement as recorded. On a reference to the record, I‑find that to a question whether he had received some amounts and embezzled them the answer recorded is `yes'. It is not explained how an accused who was so vigorously fighting his case could have just accepted that he had embezzled some money when he was examined under section 342 Criminal P. C. There is force in the argument of the learned counsel for the petitioner that if the case remains in the Court, of Mr. Mahabat Khan the petitioner is bound to be convicted. This case is transferred to the Additional District Magistrate, Lahore, who may try it himself or transfer it to such other Magistrate as he may think fit A. H. Case transferred.