Divatia, J.—This application has been referred to the full bench particularly for the determination of the following question, viz.,

When on a reference made by the Sessions Judge u/s 438 of the Criminal Procedure Code, a Division Bendi of this Court passes an order without issuing notice, viz. 'No order on this reference,' whether the applicant at whose instance the Sessions Judge made the reference is entitled to make an application in revision to this Court in the same matter, in view of the provisions of Section 369 of the Criminal Procedure Code

2. The facts are shortly these:-The Additional District Magistrate at Ahmedabad issued an order on January 26, 1944, under Rule 40 of the Defence of India Rules prohibiting a daily paper called Sandesh from publishing, selling or distributing its special issue to be published on January 26 ,in connection with the celebration of the " Independence Day". In-a revisional application against the said order filed by the editor and publisher of the paper, the learned Sessions Judge was of the opinion that the Additional District Magistrate had no jurisdiction to pass' the order, and that in any case Rule 40 did not apply to a case) where, as was found in this case, the document was only likely to contain a prejudicial report, etc., when published. For these reasons he made a reference to this Court u/s 439, Criminal Procedure Code, with a recommendation that the said order should be quashed. The said reference No. 101 of 1944 came up before a division bench of this Court and without issuing any notice to the parties it passed an order " No order on this reference." Thereafter the present petitioner the Editor and Publisher of Sandesh filed this revisional application to this Court on November 30, 1944, praying that the order of the Additional District Magistrate should be quashed.

3. An objection of a preliminary nature was taken by the Assistant Government Pleader that .this application was incompetent u/s 369 of the Criminal Procedure Code after the order passed by this Court in the reference. Under that section no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error. "The contention is that the question about the legality of the order of the Additional District Magistrate, which arises in this revisional application, is the same question which was the subject-matter of the reference which also came before this Court in its revisional jurisdiction, and the order of this Court " No order on this reference " in the latter proceeding is a judgment within the meaning of that term in Section 369, which, after it was signed, cannot be altered or reviewed in this application. It is clear that the powers which this Court exercises in a reference u/s 438 are revisional powers u/s 439 as the matter " has been reported for orders" of this Court. It is also) rightly conceded on behalf of the petitioner that u/s 440 no party has a right to be heard before this Court in revision and that the provision of Sub-section (2) of Section 439i that no order shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader applies to a case of enhancement of sentence of the accused and not to a case like the present where the petitioner is not an accused person and the order of the lower Court is only confirmed, They result is that this Court is acting in revision in both the proceedings and that the fact that the order in the reference was made without hearing the petitioner does not affect its validity or its binding nature on the petitioner.

4. The next question is whether the order is a judgment u/s 369. The term judgment is not denned either in the Criminal Procedure Code or in the Indian Penal Code. It is described as "the expression of the opinion of the Court arrived at after due consideration of the evidence and of the arguments, if any": Damu Senapati v. Sridhar Rajwar I.L.R (1893) Cal. 121. This applies to the judgment of a trial Court and Section 367 prescribes what the form and contents of the judgment of a trial Court ought to be. Section 424 dealing with the judgment of the appellate Courts says that the rules relating to the judgments of a trial Court shall apply, so far as may be practicable, to judgments of appellate Courts other than a High Court. It must follow, therefore, that there are no definite rules as to what the judgment of a High Court acting in its appellate as well as revisional jurisdiction should contain. This is quite natural because the judgment of the High Court in its criminal jurisdiction is ordinarily final and does not, therefore, require the statement of any reasons, especially in a revisional application where the parties are not bound to be heard. There is, therefore, practically no distinction between an order and a judgment of a High Court disposing of a proceeding before it. That being so, the order in the reference ' No order on this reference' is a judgment u/s 369 and as such cannot be altered or reviewed. That judgment means that this Court does not see any reason to set aside the order of the Additional District Magistrate as recommended by the Sessions Judge. In the present application the petitioner really asks us to alter or review that judgment by urging that although the Court did not set aside the order of the Additional District Magistrate on the grounds given by the Sessions Judge in his order of reference, it should do so because the petitioner had no opportunity to address this Court on his reasons in support of the grounds given by the Sessions Judge or by urging fresh grounds for setting aside the order. That, in our opinion, comes within the prohibition of Section 369 as the previous order of the High Court is a judgment which could be passed in its revisional jurisdiction without hearing a party.

5. Mr. Shah relies on some decisions of this and other High Courts in support of his argument that this application is competent. The first is an unreported decision of our High Court in Chamanlal Kevdlchtmd v. Bai Ruxmani (1944) C R. 496, decided by Wadia and Weston JJ., on January 20, 1944, (Unrep.). The facts in that case were no doubt similar to those in the present case. There also the order was that no order was to be made in the reference and a subsequent revisional application by the party was held to be competent. It was observed:-

We do not think that it can be accepted as a rigid rule, merely because the High Court on a previous occasion has had before it a case upon which it had power to take action u/s 439 of the Criminal Procedure Code and did not consider on the facts as then appeared to it that it was necessary to take action, that, when the case again comes before the High Court on a future occasion, it is debarred from exercising the power of interference in revision, which earlier it did not consider necessary to exercise. The order of the Bench of this Court, as already mentioned, is really not an order u/s 439 of the Criminal Procedure Code. It is not more than a note that, as at present advised, no order under that section is proposed.

6. The provisions of Section 369 were not brought to the notice of the Court, and it was taken for granted that the order passed in the reference was not more than a note that no order u/s 439 was proposed. In our opinion it is difficult to hold this formal order disposing of the reference as a mere note. In law the order amounted to a judgment, and, therefore, was not open to review u/s 369. We do not think, therefore, that that decision is in accordance with law. The next decision relied upon is Emperor v. Kohna Ram I.L.R (1922) All. 11. But it is clearly distinguishable from the present case. There the revisional application was maintainable because the previous reference was only for enhancement of sentence and the subsequent application was on the merits and not on the point raised in the reference. There was, therefore, no question there whether the order on the reference was a judgment on the merits and as such governed 'by the provisions of s.369. In Sheo Saran Vaish v. Jitendra Natk Das A.I.R (1928) Oud 292, the reference was not rejected on the merits but on the ground that the Sessions Judge had no power to make it at an interlocutory stage. There was, therefore, no judgment on the merits of the points involved in the subsequent revision application. In the present case the order of this Court was on the merits and not on the ground that the reference was not competent. In Bibhuty, Mohun, Roy v. Dasimoni Dassi (1902) 10 C. L. J. 80, the order on the reference was made in default of appearance of both parties without considering the merits of the case. It was open to the Court to set aside the order passed in default of appearance on proper grounds when notice was issued to the parties and it is in accordance with the principles of natural justice that if the parties are asked to appear, the case should not be decided till they are heard, and that if the matter is disposed of in their absence, they should have an opportunity to show that they were prevented from appearing on account of a reasonable cause. On that principle, a subsequent revisional application would lie on the same ground on which an application to restore a case dismissed for default would lie. That, however, is not the case here. The last decision relied on by the petitioner is Kishen Singh v. Girdhari Lal A.I.R [1924] Lah. 310 and that also was a case of default of appearance and the decision was not on the merits.

7. No authority has been brought to our notice in which an order of the High Court similar to the one we have here was not held to be a judgment u/s 369. In the absence of anything to show that the order was passed on a preliminary ground without going into the merits of the point raised in the reference, it must, in our opinion, be presumed that the order is a final order on the merits and as such amounts to a judgment, Accordingly we hold that the present revision petition really seeks us to alter or review a judgment already passed in a former proceeding and is, therefore, barred by the provisions of Section 369.

8. Although we are constrained to come to this conclusion on the provisions of law, we are not unaware that the applicant has a grievance that his position has been worsened and not improved by the Sessions Judge being in his favour, because if the recommendation of the Sessions Judge is turned down without hearing the petitioner, as has happened in this case, he is worse off, while if the Sessions Judge would have been against him he could have still applied to this Court in revision and got an opportunity to put his case before us. This is no doubt an anomaly, and it is caused by the provisions of Rule 26 of the Appellate Side Rules which compels a party to apply to a lower revisional Court before applying in revision to the High Court. u/s 439 it is open to a party to apply in revision to the High Court against the order of any inferior Court which is not appealable. u/s 435 it is open to him to apply in revision to any Court superior to the trial Court and inferior to the High Court in a matter in which he can also directly apply in revision to the High Court. Such revision Court, however, if it is of the opinion that the decision of the trial Court is illegal or improper, cannot itself set it aside but has to make a reference for doing so to the High Court u/s 438. There is thus a concurrent remedy to the aggrieved party. Thus, if Rule 26 had not been there, the petitioner could have applied to this Court directly u/s 439 against the order of the Additional District Magistrate and would have had an opportunity to place his arguments before the High Court, but under Rule 26 he has got to apply in revision first to the Sessions Court. If the Sessions Judge had dismissed his application he could then have applied to, and argued his case before, this Court, but because the Sessions Judge was in his favour and had therefore got to make a reference to this Court recommending it to set aside the order and because this Court was not satisfied with the reasons for the recommendation, and disposed of it without issuing a rule, the petitioner is now debarred from arguing his arguments before this Court. It may be that the reasons given by the Sessions Judge for the recommendation may be weak or may be insufficient, whereas the petitioner, if he appears, maybe able to urge cogent and sufficient reasons for setting aside the original order. He thus suffers on account of the provisions of the rule which deprives him of an opportunity to come to this Court in revision in the first instance. We think this position does cause hardship to the party and it should be effectively remedied. We do not see any reason to delete Rule 26 altogether from the Appellate Side Rules. It is a salutary provision and has otherwise worked well, but we think a new rule should be added to the effect that a reference made by a Sessions Judge recommending the setting aside of an order of the trial Court should always be placed for hearing after issuing notice to all the parties concerned. Such a rule would remove the hardship like the one in the present case by enabling the party to urge his arguments in support of the reference. It is true that this procedure will involve delay and expense, in cases where references are made on obviously untenable grounds, but the balance of convenience is in favour of hearing all such references after notice to the parties. If the proposed rule is adopted, it may be hoped that a good deal of time and expense would be saved if the lower revisional Courts take care in making references to this Court only in cases where the decisions involve a point of law of general importance which may govern other cases or where in their opinion there has been substantial injustice and not merely where a different view of the case can be taken on appreciation of evidence. The application is dismissed.