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Md. Ataur Rahman Etc. Vs. Nityananda Das and ors. Etc. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMd. Ataur Rahman Etc.
RespondentNityananda Das and ors. Etc.
Excerpt:
- - where the statute banned the exercise of revisional powers by the high court, it would indeed require very exceptional circumstances to warrant interference under article 227 of the constitution, since the power of superintendence was not meant to circumvent statutory law......cr p.c. in which possession was declared in favour of the opposite parties. the petitioner then filed an application in revision before the sessions judge under section 397(1) of cr. p.c. the application was rejected. the petitioner then filed this application before this court. it came up for hearing before one of us (islam j.) sitting singly. when the petitioner was confronted with sub-section (3) of sec-397 of the cr. p.c. which bars a second application in revision by the same person, counsel for the petitioner submitted that he has filed the application also under article 227 of theconstitution, and that the case required interpretation of sub-article (5) of article 227 of the constitution. whereupon the petition was referred to a division bench.3. criminal revision no. 170/78.....
Judgment:

Baharul Islam, J.

1. These two revisions involve the interpretation of Sub-article (5) of Article 227 of the Constitution of India and this common judgment of ours will dispose of both of them.

2. Criminal Revision No. 191/75 arises out of a proceeding under Section 145 of the Cr. P.C., 1973 hereinafter 'the Cr P.C. in which possession was declared in favour of the opposite parties. The petitioner then filed an application in revision before the Sessions Judge under Section 397(1) of Cr. P.C. The application was rejected. The petitioner then filed this application before this Court. It came up for hearing before one of us (Islam J.) sitting singly. When the petitioner was confronted with Sub-section (3) of Sec-397 of the Cr. P.C. which bars a second application in revision by the same person, counsel for the petitioner submitted that he has filed the application also under Article 227 of the

Constitution, and that the case required interpretation of Sub-article (5) of Article 227 of the Constitution. Whereupon the petition was referred to a Division Bench.

3. Criminal Revision No. 170/78 arises out of a proceeding under Section 133 of the Cr. P.C. in which an order was passed against the petitioner. The petitioner moved the Sessions Judge who rejected the application in revision. He then moved this Court in revision. Facing with the hurdle of Sub-section (3) of Section 397, counsel for the petitioner submitted that the application was also made under Article 227 of the Constitution and the matter needed interpretation of Sub-article (5) of Article 227 of the Constitution, where upon the petition was referred to a Division Bench.

4. The only point that falls for our consideration is whether when an application in revision by a party before the Sessions Judge fails, the same party is entitled to make an application under Article 227 of the Constitution challenging the impugned order of the Magistrate. As stated earlier, the references were made on the ground that they needed interpretation of Sub-article (5) of Article 227. We need not ourselves examine and interprete this Sub-article, as in the meantime, their Lordships of the Supreme Court have already authoritatively interpreted the scope of Sub-article (5) of Article 227 in the case of Jagir Singh v. Ranbir

Singh reported in : 1979CriLJ318 . in which their Lordships have observed:

If the revision application to the High Court could not be maintained under the provisions of the Cr. P.C. could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent?.... The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such a source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power. In the second place the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of superintendence was not meant to circumvent statutory law. In the third place it was doubtful ii the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed, By the 42nd Amendment Act Clause (5) was added in Article 227 of the Constitution and it says, 'Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision'. Clause (5) of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub-section (2) of Section 224 of the Government of India Act, 1935 which it was held, conferred powers of administrative superintendence only and not the power of judicial superintendence. In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act it was, therefore, urged by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment. We have serious doubts. Article 227, before the 42nd Amendment, gave no right to any party. An application invoking the High Court's power of superintendence did not create any vested right in the suitor. There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment. It was just a question whether the High Court possessed the power of superintendence on the date of the High Court's order. There is no dispute that it did not.

5. Mr. A. C. Bora, learned Counsel appearing for the petitioner in Criminal Revision 191/75, submits that his case won't be affected by the provision of Article 227(5) of the Constitution as the application was filed before this Court before 42nd Amendment by which sub-Art, (5) was incorporated in the Constitution. The contention of Mr. Bora is also answered by the Supreme Court in the decision referred to above.

6. In our opinion these two cases are covered by the decision of the Supreme Court reported in : 1979CriLJ318 . We hold that party who files a revision under Section 397 Cr. P.C. but fails, cannot move the High Court under Article 227 of the Constitution.

7. In the result these applications are rejected. The Rules are discharged.


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