State vs M/s. Rakesh industries and another

Gopal Singh, J.—This is a petition u/s 561-A, Code of Criminal Procedure for setting aside the order of Bedi J. dated January 14, 1969 passed in Criminal Revision No 117 of 1968.

The facts leading to the present petition are as follows: -

On August 25, 1965 first information report was made by the State against the firm of the Petitioner styled as Messrs Rakesh Industries for offence u/s 5(sic) of the Imports and Exports (Control) Act, 1947. The punishment provided u/s 5 of the Act as it then stood was rigorous imprisonment for one year. Section 5 of the Act was amended in 1966 and the sentence for which a convict under that Section could be punished was enhanced to rigorous imprisonment for two rears. After investigation by the police, the Petitioner firm was challaned to by the Court of the Chief Judicial Magistrate, Chandigarh. The Court took cognizance of the case as a summons case. On February 28. 1968, the Court passed an order that the case be tried as a warrant case by virtue of the amendment of Section 5 effected in 1966. The Petitioner firm preferred a revision petition with the Sessions Judge. Chandigarh from that order, by this order dated June 22, 1968, the Sessions Judge made a recommendation to the High Court u/s 438, Code of Criminal Procedure to the effect that the offence having been committed before the amendment of Section 5 made in 1966, the Petitioner was punishable for one year and consequently the case should be tried as a summons case and not as a warrant case.

After the receipt of the recommendation in the High Court, notices were issued to the parties for November 18, 1968. In the notice issued to the Petitioner firm as it is specifically mentioned in the office copy of the notice on the record the date for which the notice had been issued to the Petitioner was a farzi'' date. The Petitioner was not represented by any Counsel. The case came up for hearing before Bedi J., on January 14. 1969. The Petitioner neither appeared in perron nor was represented by any Counsel on that date. The recommendation was accepted exparte without the Petitioner being heard and the order of the trial Court dated February 28, 1968, by which the Court directed that the case be heard as a warrant case, was set aside.

It is contended by Shri Rajinder Sachar appearing on behalf of the Petitioner that under Rule 8 of Chapter 3-A in Volume v. of High Court Rules and Orders, it was obligatory on the office of the High Court to issue notice for an actual date after the Petitioner had been served for the ''farzi'' or tentative date of November 18, 1968 and be had not engaged any Counsel and was unrepresented on January 14, 1969 when the case came up for disposal.

On the other hand, it is contended by Shri M.L. Nanda appearing on behalf of the Respondent that by virtue of Section 369, Criminal Procedure Code, the judgment signed by the learned Single Judge became final and cannot be reviewed. He has also relied upon Section 440, Code of Criminal Procedure in support of the contention that it was discretionary for the learned Single Judge to hear or not to hear the Petitioner-firm in support of the reference and having chosen not to hear the Petitioner, the present petition deserves dismissal.

The recommendation was made by the Sessions Judge to the prejudice of the Petitioner, who is an accused person. He had a right to be heard u/s 439 (2) Criminal Procedure Code, According proviso appended to the above referred to Rule 8 of the High Court Rules and Orders, it is imperative upon the office of the High Court to serve another notice for a pucca or an actual date to be fixed by the office if a party already served for a tentative date is not represented by a Counsel. Earlier service of a notice for a tentative date is no service at all if the party so served has not engaged any Counsel and the Counsel has not put in appearance to represent that party. Section 440, Code of Criminal Procedure cannot confer discretionary power upon the High Court in refusing to hear an accused person to whose prejudice recommendation has been made by the Sessions Judge u/s 438, Criminal Procedure Code. Proviso appended to Section 440 leaves no doubt that that discretion cannot be exercised counter to the statutory obligation cast upon the High Court in hearing an accused person to whose prejudice an order has been made by a Court subordinate to the High Court whose order is sought to be revised or recommendation has been made u/s 438. Code of Criminal Procedure to the prejudice a of an accused person in respect of cases covered by Sub-section (2) of Section 439, Criminal Procedure Code. The power to exercise discretion in hearing or in not hearing a party has been taken away in cases in which the order of the subordinate court sought to be revised is prejudicial to an accused person, Thus, Section 440, Criminal Procedure Code, cannot stand as a bar against interference with the order of the learned Single Judge.

In the face, of Rule 8, the Petitioner must have been expecting further notice as contemplated by that rule. The reference made by the Sessions Judge to the prejudice of the Petitioner could not be heard on January 14, 1969 without notice having been issued to the Petitioner for that date. Both under Rule 8 of the Rules and u/s 439 (2) of the Criminal Procedure Code, service of notice upon the Petitioner for the date of hearing is an indispensable necessity. Without the Petitioner being so served, he had no opportunity of being heard in the case.

As the Petitioner was entitled to be heard in the revision petition and he had not been served with the date of actual hearing, on which the case was heard and disposed of, the order passed by the learned Single Judge is counter to the aforesaid Rule 8 and hence inoperative against the Petitioner. Section 369, Code of Criminal Procedure can not be a bar for setting aside such an order and for the case being reheard.

In the result, I allow the petition and direct that the case be reheard. The revision petition to come up for hearing next week.