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Patel Siddegowda Vs. K. Siddegowda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1976CriLJ1967
AppellantPatel Siddegowda
RespondentK. Siddegowda and ors.
Excerpt:
.....taking into consideration the equity. -- section 115: executing court dismissing the execution petition as not maintainable inspite of clear instructions of the high court order of execution court was set aside and matter remitted to the execution court. - (5) where under this code an appeal lies but an application for revision has been made to the high court by any person and the high court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the high court may treat the application for revision as a petition of appeal and deal with the same accordingly......of the property in dispute. the proceeding before him had arisen under section 145 of the code of criminal procedure. the petitioner filed criminal revision petition no. 15 of 1974 before the sessions judge, mandya, challenging the said order passed by the sub-divisional magistrate. the sessions judge has held that his powers of revision under section 399 of the code of criminal procedure could not be exercised as the records of the case had not been called for by himself from the court of the sub-divisional magistrate, pandavapura sub-division, pandavapura. this is the order challenged in this petition.3. it is seen from what has been narrated above that the question involved is a pure question of law.4. section 397 of the code of criminal procedure empowers the high court and.....
Judgment:
ORDER

M.S. Nesargi, J.

1. This petition is filed under Section 482 of the Code of Criminal Procedure against the order dated 24-3-1976 passed by the Sessions Judge, Mandya, in Criminal Revision Petition No. 15 of 1974, holding that no relief could be granted in the said revision petition,

2. The Sub-Divisional Magistrate, Pandavapura, Sub-Division, Pandavapura, passed an order dated 16-9-1974 in Case No. C. Mis. 26 of 1969-70, holding that the respondents were in possession of the property in dispute. The proceeding before him had arisen under Section 145 of the Code of Criminal Procedure. The petitioner filed Criminal Revision Petition No. 15 of 1974 before the Sessions Judge, Mandya, challenging the said order passed by the Sub-Divisional Magistrate. The Sessions Judge has held that his powers of revision under Section 399 of the Code of Criminal Procedure could not be exercised as the records of the case had not been called for by himself from the Court of the Sub-Divisional Magistrate, Pandavapura Sub-Division, Pandavapura. This is the order challenged in this petition.

3. It is seen from what has been narrated above that the question involved is a pure question of law.

4. Section 397 of the Code of Criminal Procedure empowers the High Court and the Sessions Judge to call for and examine the records of any proceeding before any inferior Criminal Court situated within its, or his, local jurisdiction. The power conferred by Section 397, Criminal Procedure Code, is to call for records for the purpose of satisfying in regard to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the inferior Criminal Courts, and while calling for the records, to direct suspension of any execution of sentence passed and to release on bail or on the bond a person or accused concerned pending examination of the record. What powers a Sessions Judge can exercise after examining the records so called for are enumerated in Sections 398 and 399, Criminal Procedure Code, What powers the High Court can exercise after examining the records so called for are enumerated in Section 401, Criminal Procedure Code.

5. In Section 398, Criminal Procedure Code a reference is made to Section 397, Criminal Procedure Code. It is also provided that a Sessions Judge can exercise the powers under Section 398, Criminal Procedure Code on examining the records, which otherwise come to his notice, and not necessarily by calling for them under Section 397, Criminal Procedure Code.

6. Section 399, Criminal Procedure Code reads as follows:

399(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

It is to be specifically noticed that the words 'or otherwise' appearing in Section 398, Criminal Procedure Code are omitted. Therefore, it is plain that only when the records are called for by the Sessions-Judge himself, he can exercise the powers enumerated in Section 399, Criminal Procedure Code. Those powers are the ones vested in the High Court under Section 401, Cr. P.C. Section 401, Cr. P.C., reads as follows:

401. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

(2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

7. It is to be particularly noticed that the powers vested in the High Court can be exercised by the High Court in case of any proceeding the records of which the High Court has called for, or which otherwise come to the knowledge of the High Court. Here again, we find the use of the word 'otherwise'. Therefore, what is clear is that if the Sessions Judge has to exercise powers under Section 399, Criminal Procedure Code, the records must have been called for by himself. If the records of any proceeding come to the knowledge of the Sessions Judge, in a manner otherwise than by calling for the records by the Sessions Judge, he cannot exercise the powers under Section 399, Criminal Procedure Code.

8. In the case on hand it is clear that the petitioner who was aggrieved by the order passed by the Sub-Divisional Magistrate, Pandavapura Sub-Division, Pandavapura, filed the revision petition, and on the filing of the revision petition, the Sessions Judge, Mandya, called for the records from the Court of Sub-Divisional Magistrate, Pandavapura. Therefore, the records in the case on hand had been called for by the Sessions Judge himself from the Court of Sub-Divisional Magistrate, Pandavapura. The learned Sessions Judge, Mandya, appears to have understood the words 'called for by himself occurring in Section 399(1), Criminal Procedure Code, to mean 'suo motu' and not on the filing of a revision petition by an aggrieved party. There is no warrant to attribute such a restricted meaning to the words 'called for by himself. This aspect is absolutely clear when Sub-section (3) of Section 399, Criminal Procedure Code is taken into consideration, because Sub-section (3) contemplates an application for revision being made before a Sessions Judge on behalf of any person and exercise of powers under Section 399, Criminal Procedure Code. What Sub-section (3) of Section 399, Criminal Procedure Code, lays down is that if an application for revision made on behalf of any person before the Sessions Judge is disposed of, against the person making the application, such person is barred from moving the High Court in exercise of its powers of revision.

9. The foregoing reasons show that the view taken by the learned Sessions Judge, Mandya, is not sustainable. Hence the petition is allowed. The order passed by the Sessions Judge, Mandya, dated 24-3-1976 in Criminal Revision Petition No. 15 of 1974, is set aside. The Sessions Judge, Mandya, is directed to dispose of the revision petition according to law expeditiously on receipt of the records from this Court.


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