K.B. Panda, J.
1. These two bunches of Criminal Revisions and Criminal Misc. Cases are interconnected and so were heard analogously and would be disposed of by this judgment. Facts necessary for the purpose of disposal of the cases are shortly thus: One Mulia Mohanty filed a complaint against Kandha Behera and seven others alleging that they had formed an unlawful assembly and confined him and provoked him to cause a breach of the peace. The Sub-divisional Judicial Magistrate Talcher found the accused persons guilty Under Sections 143 and 504, I.P.C. in I.C.C. 42 of 1971 and passed a sentence of fifteen days rigorous imprisonment on each count on 14-4-1972, the sentences to run concurrently. However, the learned S.D.J.M. released all of them Under Section 4(1) of the Probation of Offenders Act, 1958 on their executing a bond with one surety for Rs. 1000/- each.
2. This order of release of the accused persons under the Probation of Offenders Act being verily illegal somehow came to the notice of this Court which started a suo motu proceeding numbered as Criminal Revision No. 621 of 1972. Therein all the accused persons were noticed but accused Nos. 3 and 5 did not appear. It was disposed of by the then Hon'ble Chief Justice Shri G. K. Misra with the following observation.
On issue of notice though the accused persons excepting accused Nos. 3 and 5 appeared, the legality of the conviction has not been challenged before me.
In the third para of that judgment prosecution case is djgcussed and in the fourth para it is stated thus:-
Three witnesses were examined by the prosecution, eight witnesses were examined on behalf of the defence all speaking of alibi of each of the accused persons. The defence version was not accepted by the learned Magistrate and he accepted the prosecution story on charges Under Sections 143 and 504 IPC. He acquitted them of the charge Under Section 342 IPC. After having gone through the evidence on record I am satisfied that the learned Magistrate recorded the correct finding.
Thereafter it is observed thus:
The accused persons came in a body and some of them were armed. They were violent in their behaviour. The learned Magistrate did not call for any report from the Probation Officer which is mandatory Under Section 4(2) of the Act. XX XX XX
I accordingly set aside the order of the learned Magistrate releasing them on probation. The sentence of fifteen days' imprisonment in the circumstances of the case does not appear to be heavy. In the result, the order of conviction and sentence passed on the accused persons is maintained. The criminal revision is allowed as indicated above. Be it stated here that while disposing of this suo motu revision this Court had called for the records of the appeal preferred by the convicted persons which was pending before the Additional Sessions Judge, Dhenkanal, namely, Criminal Appeal No. 28-D of 1972. Evidently after the disposal of this revision (Cr. Rev. 621/72) the records of Criminal Appeal No. 28-D of 1972 were sent back to the Additional Sessions Judge, Dhenkanal, Thereon the Additional Sessions Judge dismissed the appeal on 6-9-1974 with the observation that,
The appeal has become infructuous in view of the order passed by the Hon'ble High Court in Criminal Revision No. 621 of 1972 maintaining the conviction and sentence passed against the appellants,
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Thereafter as it appears, appellant Kandha Behera filed a review petition in December, 1975 and another appellant named Ghana Padhan preferred a review petition on another date and the rest six filed another review petition on another date. The review petition filed by Ghana was disposed of on 4-2-1976 by Shri N. P. Mohapatra, Additional Sessions Judge and the other two review petitions were disposed of by his successor Shri B. Mohapatra on 8-9-1976. Both were substantially to the effect that since the matter has already been disposed of by the Hon'ble High Court on merits, it called for no fresh adjudication. Now the present three criminal revisions have been filed against the rejection order passed in these three review petitions and the criminal miscellaneous cases have been filed to recall the judgment dated 10-8-1973 in Criminal Revision No. 621/72 disposed of by this Court by the then Chief Justice. 3. It was contended by Mr. Kar learned counsel for the petitioners that right of appeal is a statutory one which cannot be taken away on any score. The suo motu criminal revision, namely, Criminal Revision No. 621 of 1972 did not dispose of the criminal appeal preferred by the convicted appellants before the Additional Sessions Judge, Dhenkanal nor the High Court could have disposed them of. His further contention was that the High Court specifically did not touch the criminal appeal for which after disposal of criminal revision it was sent back for disposal by the Additional Sessions Judge, Dhenkanal. In support of his stand, he cited the case of Pranab Kumar Mitra v. State of West Bengal : 1959CriLJ256 . The observation made by their Lordships in it are thus:
In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand as already indicated, a right of appeal is 'a statutory right which has got to be recognized by the Courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. The Legislature, has therefore specifically provided, by Section 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but there is no corresponding provision in Chapter XXXII, dealing with the question of abatement and the right of substitution in a criminal revision.
Therein their Lordships of the Supreme Court were deciding the question of substitution. In short, the facts were that one Sailendra Sundar Mitra was convicted Under Section 420, I.P.C. and while his revision was pending in the High Court he died. One of his legal representatives who was major applied for substitution. In it the High Court refused to go into1978 Ganga Singh v. State of Rajasthan the merits of conviction and confined itself to examine the question of correctness of sentence. But being dissatisfied with the aforesaid order of the High Court, the appellant moved the Court for obtaining necessary certificate of fitness and accordingly the certificate under Article 134(1)(c) of the Constitution was granted and the matter came up before the Supreme Court. Here, in the instant case, the facts are entirely different. Substantially the High Court has gone into the merits of the case and in doing so it is not precluded. Section 439, Cr.PC (old) postulates this.
439. High Court's Power of Revision (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, 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 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence and when the Judges composing the Court of revision are equally divided in opinion the case shall be disposed of in manner provided by Section 429.
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.
4. At the time when the revision was heard by this Court the record of the Criminal Appeal was before it. Any order which the High Court could pass while hearing an appeal, it could also pass while disposing of a revision arising out of that case as per the above provision with the limitation that if it enhanced the punishment then only the parties will be heard in the matter. In the instant case, the parties have been given notice and they have appeared except accused Nos. 3 and 5 and they did not challenge the legality of the conviction as already quoted. Thus the accused persons were given a full hearing and in their presence the above order was passed. The portions quoted would unmistakably show that -this Court had gone into the merits of the case and has opined about the merits of the case also. Instead of the accused persons making a grievance that their appeal had not been heard the position is that their appeal was heard by a higher forum in High Court instead of Sessions Court and in that background they cannot have any grievance. That apart, the review petitions filed are much beyond the time and are not countenanced by law. In any view of the matter, the criminal revisions and criminal Misc. cases have no merit. Hence all these petitions are dismissed.