CHHAGANLAL Vs. BIRJA BAI

JUDGEMENT

(1.) THIS is a revision by the accused against an order of the learned Sessions Judge of Udaipur who set aside an order of discharge passed by the Extra Magistrate, Nathdwara and directed retrial of the accused.

(2.) IT was alleged that the learned Sessions Judge contravened the direction given in the proviso to section 436 inasmuch as he was not given opportunity to show cause why the order of discharge should not be set aside and the case be sent for retrial. According to the statement of facts given by the learned Sessions Judge in disposing of the supplementary application preferred by the accused, it appears that the revision made by the complainant was fixed for hearing on the 23rd of August but by some mistake a notice was issued to the accused that the case would be taken on 23rd September, 1950. The revision was adjourned from time to time and was finally disposed of on 30th of September, 1950. The hearing took place on the 29th of September in the absence of the accused. According to the version of the accused, he tried to attend the court on 23rd of September but it was closed owing to some holiday and the three succeeding days were also declared holidays. He did not receive any further notice. The learned Judge has observed that it was the duty of the accused to find out from the court on re-opening of the holidays what date had been fixed in his case and on that account he refused to hear the revision on the merits. Mr. Vyas, who appears for the complainant, contends that although the accused may not have received notice as directed in the proviso to section 436, the order passed by the learned Sessions Judge cannot be revised as the direction in the aforesaid section is only directory and not mandatory. A. I. R. 1934 181 ). In my opinion, the direction in the proviso to section 436 is mandatory. The language used is, "that no Court shall make any direction under this section for enquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made". The Rangoon case is distinguishable since in that case, the order directing retrial was not challenged in revision but only taken as a ground after the accused had been convicted on re-trial. The observations of the learned Judge who decided the Rangoon case are very pertinent. IT was observed that if a re-trial is ordered without giving notice to the accused who has been discharged by the lower court, the order directing a further enquiry was liable to be set aside. Certain cases were cited which were decided prior to the amendment of 1933 and it was observed that the law laid down in those cases was still good law. The learned Judge proceeded to observe that if the validity of the order was not challenged and a trial was held in pursuance thereof and resulted in a conviction, then in that case, different considerations would arise as to whether or not the conviction could be set aside. The authority, instead of helping the complainant, is against her. On the question whether it was the duty of the accused to make an enquiry as to the date of hearing, I do not agree with the learned Sessions Judge. In view of the fact that 23rd was a holiday and the three succeeding days were also holidays, the accused could not wait indefinitely in order to find out what the date was when the law had imposed a duty on the court to give an opportunity to the accused to show cause why the order of discharge be-not set aside and a retrial ordered. I, therefore; accept this revision, set aside the order of the learned Sessions Judge directing retrial and send the case to the Additional Sessions Judge at Udaipur to decide the revision filed by the complainant on merits after notice to the accused. .