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Alapati Sriramamurty and ors. Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revision Case Nos. 550 and 551 of 1955 and Criminal Revn. Petition Nos. 528 and 529 of 1955
Judge
Reported inAIR1959AP377; 1959CriLJ822
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 435
AppellantAlapati Sriramamurty and ors.
RespondentState of Andhra Pradesh
Appellant AdvocateB. Manwala Chowdary, ;G. Venkateswara Prasad, D. Srimannarayana Chowdary and ;S. Venkata Reddy, Advs.
Respondent AdvocateD.J. Jagannadha Raju, Adv. for ;R.V. Ramarao, Public Prosecutor
Excerpt:
.....1898 - section 435 provide for concurrent revision jurisdiction of high court, sessions court and district magistrate - high court as a rule will not take up revision application unless sessions court or district magistrate has first entertained the same - in exceptional cases high court may entertain revision application directly from subordinate criminal courts. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the..........: 437. when, on examining the record of anycase under section 435 or otherwise, the sessions judgeor district magistrate considers that such case is triable exclusively by the court of session and thatan accused person has been improperly dischargedby the inferior court, the sessions judge or districtmagistrate may cause him to be arrested, and maythereupon, instead of directing a fresh inquiry, orderhim to be committed for trial upon the matter ofwhich he has been, in the opinion of the sessionsjudge or district magistrate, improperly discharged ;***** 438. (1) the sessions or district magistrate may, if he thinks fit, on examining under section 435 or otherwise the record of any proceedings, report for the orders of the high court the result of such examination, and, when such.....
Judgment:

P. Chandra Reddy, C.J.

1. These revision cases raise a question of practice and they have been referred to a Full Bench as it was thought desirable that a final and authoritative decision should be given by a Full Bench of this Court. The question referred to the Full Bench is :

'What is the practice to be followed in the High Court of Andhra Pradesh in the case of criminal revisions filed by aggrieved parties under-Sections 435 and 439, Criminal Procedure Code, without approaching an inferior Court in the first instance?'

St is not necessary to recapitulate the facts of the case as we are not called upon to give any decision on the merits but only decide the general practice. The problem that presents itself has to be solved -with reference to a group of Sections of the Criminal Procedure Code. Sections 435 - 439 of the Code so far as relevant may be extracted-

'435 (1) The High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by 'the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may when calling for such record, direct that the execution of any sentence or order be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

*****

'436. On examining any record under Section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates Subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, or into the case o any person accused of an offence who has been discharged :

437. When, on examining the record of anycase under Section 435 or otherwise, the Sessions Judgeor District Magistrate considers that such case is triable exclusively by the Court of Session and thatan accused person has been improperly dischargedby the inferior Court, the Sessions Judge or DistrictMagistrate may cause him to be arrested, and maythereupon, instead of directing a fresh inquiry, orderhim to be committed for trial upon the matter ofwhich he has been, in the opinion of the SessionsJudge or District Magistrate, improperly discharged ;*****

438. (1) The Sessions or District Magistrate may, if he thinks fit, on examining under Section 435 or otherwise the record of any proceedings, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence or order be reversed or altered, may order that the execution of such sentence or order be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond.

*****

439. (1) In the case of any proceeding the record of which has been called for by itself or whichhas been reported for orders, or which otherwisecomes to its knowledge, the High Court may, in itsdiscretion, exercise any of the powers conferred ona Court of appeal by Sections 423, 426, 427 and 428 oron a Court by Section 338, and may enhance thesentence; and when the Judges composing the Courtof revision are equally divided in opinion, the caseshall be disposed of in manner provided by Section 429.*****

2. It is manifest that these sections vest controlling and supervisory jurisdictions in the authorities mentioned therein. They also' confer concurrent jurisdiction on Courts enumerated therein. Sections 435 empowers the High Court, the Sessions Court, the District Magistrate, etc., to call for records from any inferior Court to satisfy itself as to the correctness, legality or propriety of any sentence or order. The further course to be adopted by these authorities is indicated in the following sections. Under Section 436, the High Court or the Sessions Judge could revise an order of discharge and direct a District Magistrate or any Officer subordinate to hind to hold a further inquiry into that complaint.

Section 437 authorises the Sessions Judge or the District Magistrate to direct the committal of an -accused to Sessions in a case where he was improperly discharged by an inferior Court. In all other cases, the Sessions Judge or the District Magistrate could only report to the High Court for its orders. When the report of the Sessions Judge or the District Magistrate contains a recommendation, he could suspend the sentence or order the release onbail of the accused. It may here be mentioned that a change was effected in Section 438 in 1956 by adding the words 'or order' thereby extending the scope of the power of the Sessions Judge and District Magistrate to suspend the operation of orders also,

3. These sections reveal that orders could not be passed by the Sessions Judge or the District Magistrate except in regard to those that are set out in Sections 437 and 438 and the final power of revision rests in all cases with the High Court which would exercise all the powers of an appellate Court in its revisional jurisdiction, and the other Courts could only refer the matter to the High Court for its orders with their recommendations except in regard to orders of discharge made by an inferior Court.

4. The question for consideration, therefore, is whether having regard to the scheme of the Code an aggrieved party could move the High Court in its revisional jurisdiction without first approaching the District Magistrate or the Sessions Judge. The scope of the provisions referred to above has been considered by most of the High Courts and there is a large volume of case-law on this point

5. We may first turn to the practice evolved by the Calcutta High Court. The earliest reported case of that Court is Queen Empress v. Reolah, ILK 14 Cal 887. It was laid down there (hat the High Court would not entertain a revision where the Sessions Judge and the District Magistrate had concurrent powers unless an application was made to the lower Court, except on special grounds. This Was followed in Emperor v. Abdns Sobhan, ILR 36 Cal 643. It was stated in the latter ruling that the conclusion in the earlier one was arrived at after consulting the Chief Justice and ether Judges of that Court on that point. Rash Behari v. Phani Bushan, ILR 48 Cal 534: (AIR 1921 Cal 76), accords with the principle of the above two eases.

6. The only case to which our attention ix drawn as striking a different note is Bholanath v. Gour Gopal, : AIR1953Cal777 . There, the learned udges were concerned with a case in which a rule ad been issued. A preliminary objection was taken at the- time of the final hearing that the revision petition was not maintainable. Overruling that objection, they observed that the rulings were not uniform and where the case was already admitted, it should be disposed of on merits even if a Sessions Judge was not moved first. This does not indicate that that Court has subsequently deviated from the rule enunciated earlier.

7. The practice obtaining in the High Court of Patna is similar to. that in Calcutta as revealed by Bipin Behari Mukberji v. Emperor, AIR 1918 Pat 588, Chairman, Bihar Municipality v. Mt. Ramnandi Kuer, AIR 1941 Pat 548 and Prasad Gareri v. Mt. Kesari, AIR 1941 Pat 444; reported in the same volume.

8. It appears from Bajirao v. Mt. Dadi Bai, AIR 1926 Nag 285, that the Nagpur High Court has also been following the same practice. After referring to the Calcutta and Patna cases, the learned Judges have stated :

'As regards the mere entertaining of the application for revision, it is undoubtedly true that the Sessions Court has concurrent Jurisdiction with the High Court, and the fact that the Sessions judge may not be able to pass final orders in the matter and, should he see cause to do so have to refer the case for such final orders to the High Court, is not per se any sufficient reason for departing from a rule of practice which is not only administratively convenient but is also, from a purely judicial point of view, a salutary one.'

9. To a like effect is the judgment of the same Court in Chinai v. Emperor., AIR 1929 Nag 13 (2). The Lahore High Court also has adopted the rule that normally the High Court should decline to entertain an application under Section 439, Cr. P. C. until the petitioner had moved the inferior Courts unsuccessfully. See Mohammed Isbaq v. Emperor, AIR 1927 Lah 689.

10. When a similar question arose before the Assam High Court in Gobardhana Das v. Chatur-bhuj, AIR 1950 Assam 165 Ram Labhaya, J., agreeing with the view of Findlay, Officiating Judicial Commissioner in AIR 1926 Nag 285, expressed the opinion that before the High Court was approached the party should exhaust his other remedies.

11. The Chief Court of Oudh fell in line with this practice, as is evident from Debi Singh v. Emperor, AIR 1941 Oudh 268. Dealing with this point, Thomas C. J., thought that the Chief Court should not, except on special grounds, entertain an application in revision, having regard to the uniform practice that had prevailed in that Court, unless the petitioner had gone in revision to the Sessions Court.

12. The Allahnbad High Court has always been of the view that ordinarily revision petition should not directly be entertained by the High Court where the aggrieved party could have moved in the first instance the Sessions Judge or the District Magistrate. The practice was restated by a Full Bench of that Court in Shnilabala Devi v. Emperor, AIR 1933 All 678. The advantages to be derived from following this practice are stated tersely by Sulaiman, C. J., in the following words :

'This practice is based largely on convenience and seems to me to be sound. The, District Magistrate or the Sessions Judge is 011 the spot and easily accessible and the record can be locally called for promptly without any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate Court has already considered the matter and made its report. Further the High Court would have the opinion of another Court before it which would be of help.

In practice, no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or die Sessions Judge in the first instance. When a practice of this kind becomes well-known to the members of the Bar in the mofussil and in the High Court, the accused would be advised to approach the subordinate Court forthwith] and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of [he conviction or the severity of the sentence is patent.

On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused per-sons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the latter can only report to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such application.'

13. A reference to some of the decided cases discloses that Bombay High Court also is in favour of that practice. In Queen-Empress v. Chagan Daya-ram, ILR 14 Bom 331, Justice Jardine said that theBombay High Court was of late relying on the decision of the Calcutta High Court in ILR 14 Cat 887, refusing to entertain applications in revision in cases where the Sessions Judge or the District Magistrate had concurrent revisional jurisdiction except on special grounds, unless a previous application to the lower Court was made. Much later, another Bench of the same Court in Savlaram v. Dnyaneshwar Vishnu, AIR 1942 Bom 148, observed that the High Court would not normally receive a revision petition unless the lower Courts were previously moved.

14. Though in Madras, ordinarily, the practice seems to have been different, there are instances where some of the Judges of that Court thought that the High Court should not interfere in revision till the other remedies open to the petitioner in the lower Courts were availed of as in Gopobondhu Be-hara v. Venkatesam Patulu, 1923 Mad WN 837: (AIR 1924 Mad 228) and Kasi Viswanadham v. Ma-dan Singh, ILR 1949 Mad 64: (AIR 1948 Mad 422), It is true the first of them related to a case where the Sessions Judge could have made a final order 'directing further enquiry. But the learned Judge in support of his observations cited cases where the Sessions Judge could only make a report to the High Court for final orders under Section 438 of the Code. The second of the cases related to an order of the discharge. All the same, the remarks of the learned Judge give an indication as to his opinion in regard to such matters. He observed :

'Ordinarily, this Court will not entertain a revision, against a discharge by a Magistrate where the aggrieved party has not moved the Sessions Court or the District Magistrate before coming up to this Court.'

Despite this, the Madras High Court does not seem! to have been insisting upon the aggrieved parties to move the Sessions Court or the District Magistrate as the case may be in the first instance.

15. This very question was considered by a Divisional Bench of this Court in Veeraramayya v. Venkata Seshavatharam, 1955 Andh WR 888: ((S) AIR 1956 Andhra 97). After an elaborate discussion and after noticing the practice in various High Courts ,it reached the conclusion that ordinarily the High Court should not entertain revisions direct from orders of Subordinate Magistrates unless the party concerned had first approached the Sessions Court or the District Magistrate as the case may be. The learned Judges expressed the opinion that the practice in vogue in all the High Courts except Madras 'would carry out the intention of the Legislature and would better serve the interests of the public from the administrative and judicial points of view.' We think that no further elaboration is needed and that this ruling embodies the correct principle and Should be adhered to.

16. With respect, we are in entire agreement with- the statement made by the eminent Judge, Sir Sulaiman, C. J., in AIR 1933 All 678. That passage sets out the various considerations that support the practice obtaining there. It is not necessary for us to repeat those reasons here. It is true that that practice has one disadvantage, namely, that the Sessions Judge or the District Magistrate except in cases coming within the purview of Sections 436 and 437 could only report to the High Court for orders and could not pass final orders. That is, however, outweighed by the several advantages that would accrue from requiring the litigants to first approach the lower Courts.

Even in this regard, this practice results in obtaining speedy relief and avoids the High Court biding flooded with revision petitions and it is also loss expensive to the litigant. We are also not unmindful of the fact that if the revision petition is dismissed by a Subordinate Court another revision may be filed in the High Court. This applies to several other matters and that should not stand in the way of our giving effect to a salutary rule. Further, when once the revisional jurisdiction is exercised either by the Sessions Judge or the District Magistrate, much of the time of this Court would be saved as all the points involved would have been discussed and disposed of and the litigants also will see the advisability of not resorting to this Court by way of further revision.

If really there are difficult questions involved, they would be referred by the Sessions Judge or the District Magistrate for orders to this Court under Section 438 of the Criminal Procedure Code and they would be dealt with by this Court. We feel that this practice which is firmly established in almost all the High Courts tends to administrative convenience. It is also a sound principle from the judicial point off view. The Legislature has advisedly conferred coordinate jurisdiction on the several authorities in regard to these matters and there is no reason why effect should not be given to legislative intent. There does not seem to be any justification to permit parties to by-pass the lower Courts and resort to the High Court straightway without sufficient grounds.

17. However, this is not an inflexible rule of invariable application. It is always open to a party to move directly this Court when there are exceptional circumstances in any case. The High Court is invested in express terms with jurisdiction to receive revision petitions even in the first instance. But this should be confined to the cases of special nature. The normal and usual practice should be to require the parties to approach first the subordinate Courts for redress, before Section 439 of the Code is invoked.

18. In the case on hand, we do not propose to direct the petitioners to approach the lower Court since the matter has been pending here nearly three years and some important questions of law ate involved. These cases will go back to the Bench for disposal on merits, (The final orders passed by the Division Bench are not material for this report).


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