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Kokilabai W/O Ramchandra Mahajan Vs. Gangadhar S/O Shivaram Mahajan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 13 of 1985
Judge
Reported in1986(2)BomCR289
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 397 and 402
AppellantKokilabai W/O Ramchandra Mahajan
RespondentGangadhar S/O Shivaram Mahajan and anr.
Appellant AdvocateP.M. Bakshi, Adv.;S.G. Deshmukh, A.P.P.
Respondent AdvocateA.H. Kapadia, Adv. for respondent No. 1
Excerpt:
criminal - revisional powers - sections 397 and 402 of criminal procedure code, 1973 - revisional powers of sessions court is co-extensive with that of high court - sessions court has as much power to entertain revision application against acquittal as high court - in exercise of powers under section 402 high court can transfer revision application pending before it to sessions court and vice versa. - - it is, therefore, quite like that the session court might hold in its appellate jurisdiction that the truck belongs to the complainant whereas this court, in its revisional jurisdiction, which is from the nature of things limited as compared with appellate jurisdiction, might come to the conclusion that the truck belongs to the accused......code. (b) in the instance case it would be conducive to convenience of all sides that the present revision application should be heard by the session court alongwith the above mention two appeals pending in the session court. i, therefore called upon all the advocates to point out as to why the sessions court had no power to entertain the revision application against the order of acquittal passed by the judicial magistrate.4. all the advocates appearing before me now state that there is no provision under the criminal procedure code restricting the sessions court's revisional jurisdiction to orders of conviction only and all of them fairly concede that though the session court has no power to entertain the appeal against acquittal as such passed by any judicial magistrate,.....
Judgment:

Sharad Manohar, J.

1. Under the circumstances which I will presently mention it has been necessary for me to transfer this revision application to the Session Court, Aurangabad. Hence I will state the facts which are relevant only for pointing out the circumstances which necessitates such an order.

2. The petitioner before me is the original complainant at whose instance the police filed charge-sheet against present respondent No. 1 (who will be referred to hereinafter as 'the accused') for offence under section 406 of the I.P.C. for alleged commission of misappropriation in respect of a truck belonging allegedly to the complainant. In the proceedings that ensued the trial Court has passed an order of acquittal in favour of the accused and so far as the truck is concerned it is directed that the same should be returned to the accused.

3. So far as a part of the order which related to the return of the truck to the accused is concerned the present petitioner has filed an appeal to the Sessions Court. Even the State has filed an appeal against the same part of the order. Both the appeals are pending before the Session Court. So far as the order of acquittal of the accused is concerned, the State Government has not filed any appeal against the said order to this Court; but the present petitioner had initially filed an appeal against the same to this Court. Evidently the said appeal did not lie at the instance of the de facto complainant because the criminal proceedings had not been institutes upon a 'complaint' within the meaning of the Code. This Court, therefore, allowed the present petitioner to convert the appeal into a revision application and that is how the same came up for final hearing before me.

But what is to be noted is that the fact that the above mentioned two appeals against a part of the same order of the trial Court are pending in the Session Court, was brought to the notice of this court only at the time when the appeal came up for final hearing before me. The arguments from all the advocated appearing before me including the Public Prosecutors is that the Session Court has no power to entertain not only the appeal against acquittal but also the revision application against the order of acquittal. I noticed that---

(a) this plea has no foundation in any of the provisions of the Criminal Procedure Code.

(b) In the instance case it would be conducive to convenience of all sides that the present revision application should be heard by the Session Court alongwith the above mention two appeals pending in the Session Court.

I, therefore called upon all the advocates to point out as to why the Sessions Court had no power to entertain the revision application against the order of acquittal passed by the Judicial Magistrate.

4. All the Advocates appearing before me now state that there is no provision under the Criminal Procedure Code restricting the Sessions Court's revisional jurisdiction to orders of conviction only and all of them fairly concede that though the Session Court has no power to entertain the appeal against acquittal as such passed by any Judicial Magistrate, section 397 of the Criminal Procedure Code is in no way restricted to entertaining revision applications against orders of convictions only.

5. In this connection it is worthwhile referring to the provisions of section 397 of the Criminal Procedure Code. Under the said section it will be seen that the revisional power of Sessions Court is co-extensive with that of the High Court. It is not dispute and in fact it cannot be disputed that this Court gets the power to revise the order of acquittal passed by the trial Court only under section 395. If the power given to the High Court under said section 395, therefore, extends to revising the order of acquittal passed by the trial Court and if the revisional power of the Sessions Court under section 397 is co-extensive with that of the High Court, it follows that the Sessions Court has as mush power to entertain a revision application against the order of acquittal passed by the judicial Magistrate in the District as is had by the High Court. My attention was not invited to any other provisions of the Code by virtue of which the Sessions Court's power is side to have been curtailed or restricted. It may be the High Court has wider power that the Session Court in connection with the orders passed by the trial Court; but that is not because its revisional jurisdiction is wider. The larger power wielded by the High Court stems from other provisions of the Code such as section 482 of the Code or from Articles 226 and 227 of the Constitution as also from the inherent power of High Court function as High Court. The plea that the Session Court does not have power to entertain revision application against the order of acquittal does not to my mind, owe its legal justification to any statutory provision.

6. This does not mean that this Court does not have the revisional power. But in the instant case it would be in the fitness of things that the question adjudicated before me is decided by the Session Court itself. This is so because the Sessions Court is already dealing with the connected questions in the two appeals pending before itself as mentioned above. The question before the Sessions Court is as to whether the truck should be returned to the accused or to the complainant. It is bound to be that the question will be very much influence by the question as to whether the property in the truck vested in the complainant or the deceased and the question about the offence, if any, committed by the accused will be substantially conditioned by the decision on the said question. It is, therefore, quite like that the Session Court might hold in its appellate jurisdiction that the truck belongs to the complainant whereas this Court, in its revisional jurisdiction, which is from the nature of things limited as compared with appellate jurisdiction, might come to the conclusion that the truck belongs to the accused. This is bound to result in embarrassing position. Moreover, entertaining this revisional application in the Court when the two appeals are already pending in the Sessions Court will be, to a large extent, application of work.

7. In this connection reference can be fruitfully made to section 402 of the Code. That section contemplates situation where one of the accused in any proceedings, convicted by the trial Court, may file a revision application to the Sessions Court whereas another accused convicted in the same trial might file a revision application to the High Court. In these circumstances the High Court is empowered either to transfer the revision application pending before itself to the Sessions Court or to have transferred the revision application pending before the Sessions Court to itself. The rationale of this section can be readily seen. It is an attempt to obviate duplication of work .

8. To my mind, in the present case, similar order should be passed upon the analogy of section 402 of the Code. It is true that section 402 does not directly applies to the facts of the present case, because in this case the appeal to the Sessions Court and the revisional application to this Court is filed by the same person. All the same the principle involved in section 402 applies with equal vigour to the facts of the present case and in the peculiar facts of this case it would be eminently necessary that the present revision application should be heard by the Session Court.

9. I, therefore, direct that this revision application should be transferred to the Sessions/Court at Aurangabad and the same should be heard by the learned Sessions Judge alongwith Appeal No. 17 of 1985 filed by the State Government against the order of Judicial Magistrate and also along with Criminal Appeal No. 98 of 1984 filed by the present petitioner against the said order.

10. By this order the revision application stands disposed of.


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