Skip to content


Kesavan Sivan Pillai Vs. Sreedharan Rajamohan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal R.P. No. 227 of 1976
Judge
Reported inAIR1978Ker131; 1978CriLJ743
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 397, 397(1), 397(3), 399, 399(3), 401, 402, 407(1) and 482
AppellantKesavan Sivan Pillai
RespondentSreedharan Rajamohan and ors.
Advocates: Pirappancode Sreedharan Nair and; V.N. Achutha Kurup, Advs.
Excerpt:
criminal - revision - sections 397, 399, 401 and 402 of criminal procedure code, 1973 - criminal revision can be filed in high court directly - it is not necessary to firstly approach sessions court - high court can entertain revision petition under section 399 without first having filed petition before sessions court. - v.p. gopalan nambiyar, c.j. 1. this matter has been placed before a full bench to consider the correctness of two division bench rulings of this court in abraham v. thankamma (1975 ker lt 451) and raman pillai v. dakshayani (1975 ker lt 739). both the decisions were by a division bench consisting of khalid and janaki amma jj. khalid j. who made the order of reference in the first instance noticed the conflict of judicial opinion on the question, expressed his misgiving as to the correctness of the prior rulings, and his embarrassment in the matter, and felt that the matter had to be decided by a full bench. it was accordingly referred by a division bench of two of us to a full bench. 2. the two division bench rulings referred to earlier took the view that the introduction of section 399.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. This matter has been placed before a Full Bench to consider the correctness of two Division Bench Rulings of this Court in Abraham v. Thankamma (1975 Ker LT 451) and Raman Pillai v. Dakshayani (1975 Ker LT 739). Both the decisions were by a Division Bench consisting of Khalid and Janaki Amma JJ. Khalid J. who made the order of reference in the first instance noticed the conflict of judicial opinion on the question, expressed his misgiving as to the correctness of the prior rulings, and his embarrassment in the matter, and felt that the matter had to be decided by a Full Bench. It was accordingly referred by a Division Bench of two of us to a Full Bench.

2. The two Division Bench rulings referred to earlier took the view that the introduction of Section 399 in the new Criminal Procedure Code alters the practice settled for this Court in Narayanan v. Kannamma Bhargavi 1968 Ker. LT 495 : (AIR 1969 Ker 126) (FB). The Division Bench noticed that the Sessions Judge had been given power to pass final and effective orders in all cases, unlike the position in the previous Code where, in certain cases, the Sessions Judges could only report the matter for final orders of the High Court. Taken along with the fact that the Code contemplated institution of proceedings in the court of the lowest jurisdiction, the Division Bench was of the view that the Sessions Judge had to be moved first in revisional jurisdiction also. The Division Bench felt that a harmonious construction of Section 397 Clause (3) with Section 399 Clause (3) led to the conclusion that the legislative intent was, as far as possible, to make the Sessions Judge the final Court and that if every party approaches the High Court direct. Section 399 Clause (3) would become unnecessary, In Abraham v. Thankamma (1975 Ker LT 451) the position was stated thus:

"24. We, therefore, hold relying upon the Full Bench ruling laid down in 1968 Ker LT 495 : (1969 Cri LJ 611) and on the basis of the new section of the Code that no parry can approach this Court direct without moving the Sessions Judge at the first instance in revision."

The position was stated in terms absolute imposing a total ban on the party approaching the High Court in the first instance in revision. In Raman Pillay's case (1975 Ker LT 739) the position was re-affirmed.

3. It is unnecessary to notice In detail the history of the rule of practice settled for this Court in 1968 Ker LT 495: (1969 Cri LJ 611) (FB). With respect to the provisions of Sections 435, 436, 438 and 439 of the earlier Cr. P, C. a Division Bench of this Court had in Devaki v. Kitta (1967 Ker LT 31) : (1967 Cri LJ 1640) laid down that ordinarily and normally a party filing a revision petition must first approach the Sessions Judge and only thereafter come to the High Court. The Division Bench followed the ruling of the Andhra Pradesh High Court in Veera Ramayya v. Udayagiri Venkita Seshavatharam (AIR 1956 Andhra 97) s (1956 Cri LJ 571 (2)). The Full Bench in 1968 Ker LT 495 : (1969 Cri LJ 611) took the view that under the then Criminal Procedure Code the Sessions Judge could not pass an effective order in certain categories of cases, but had to report the matter for the decision of the High Court (vide Section 438 of Cr. P. C.);and that in this view, it would not be just or equitable to compel a party to resort in the first instance to the Sessions Judge before approaching the High Court. Let us approach the consideration of the question with respect to the provisions of the present Criminal Procedure Code.

4. Section 397 of the Code in so far as it is material reads:

"397. (1). The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within Its or his local 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."

* * * *

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

Sections 399, 401 and 402 may also be noted:

"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.

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 secion 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.

402. (1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall divide, having regard to the general convenience of the parties and the importance of the question involved, which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the applications for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.

(2) Whenever any application for revision is transferred to the High Court, that Court shall deal with the same as if it were an application duly made before itself.

(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.

(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other Court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge."

Section 403 enacts that save as otherwise expressly provided by the Code, there Is no right to be heard either personally or by pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader. On these provisions it will be seen that a concurrent jurisdiction in the matter of revision is conferred by Section 397 (1) on the High Court and on the Sessions Judge. It is a salutary and well accepted principle that in such cases, where a concurrent jurisdiction is conferred on two forums the lower forum should be exhausted first before approaching the higher one. This practice is referred to by the Supreme Court in Romesh Thappar v. State of Madras (AIR 1950 SC 124): (51 Cri LJ 1514) as follows:

"5. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under Article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under Article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under Section 435, Cr. P. C,, applications for bail and applications for transfer under Section 24, Civil P. C. as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice had been established that a party should proceed first to the latter Court for relief before re-sorting to the High Court. He referred to 56 All 158 : (AIR 1933 All 678: 34 Cri LJ 1115 FB), where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions, Urquhart v. Brown, (1906) 205 US 179 and Mooney v. Holohon, (1935) 294 US 103 as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the applicant in Federal and State Courts should be exhausted before the remedy in the Supreme Court -- be it habeas corpus or certiorari -- would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by Article 32 of the Indian Constitution. That Article does not merely confer power on this Court, as Article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III, or for any other purpose, as part of its general jurisdiction, in that case it would have been more appropriately placed among Articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enfrocement of those rights and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point."

The principle was not accepted or applied on the ground that an application under Article 32 of the Constitution was for enforcing fundamental rights and was itself a guaranteed remedy. We may also notice the decision in Daryao v State of U. P. (AIR 1961 SC 1457) to which our attention was drawn by the learned Advocate General to the effect that a decision on a petition under Article 226 of the Constitution may, in conceivable cases, operate as res judicata and bar a petition for similar relief under Article 32 of the Constitution. The principle was affirmed in Trilokchand Motichand v. H. B. Munshi, Commr. of Sales-Tax, Bombay (AIR 1970 SC 898) and Arati Hay Choudhury v. Union of India (AIR 1974 SC 532). But with these principles thrown in, on the terms of the statutory provisions, would we be justified in insisting even as a rule of salutary practice that the party should approach the Sessions Judge first before moving the High Court? In the face of the bar provided by Clause (3) of Section 399, to import such a rule of salutary practice would be to render the option under Clause (1) of Section 397 nugatory. We see that the bar under S 399 (3) can operate only against a party who moved the Sessions, Judge; so that, if the party succeeded before the Sessions Judge a right of further revision to the High Court could be availed of by the opposite party. But this, we think, is only an attenuated right, available only in a small percentage of cases. It is one thing to apply a rule of salutary practice requiring the party to report to the lower, forum before moving the higher one, so long as the two forums are available for resort. But when this is coupled, so to say, with a penalty as in Section 399 (3) that the choice of the one will bar access to the other, still to confine the party to the lower forum will be, practically, to destroy the option. A provision more or less on the lines of Section 399 (3) occurs in Section 435 Clause (4) of the earlier Cr. P. C. which was as follows:

"435 (4). If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them".

But the scope and the applicability of that provision and the plane at which it operated, were quite different and understandable. We do not think we would be justified by importing a rule of practice or convention so as to destroy the statutory option given to a party of choosing any one of two forums for filing the revision.

5. But the learned Advocate General to whom we issued notice, made a forceful submission to still confine the party to the Sessions Judge before approaching the High Court. It was contended that without any such limitation, conflict of decisions was likely to result if some of the parties approached the Sessions Judge and others, the High Court. This was particularly so in proceedings under Sections 133 or 145 of the Cr. P. C. To avoid the anomaly it was contended that rule of limitation or salutary practice was necessary. This was emphasised with respect to the provisions of Section 403 of the New Code of 1973 which had statutorily recognised that the party had no right to be heard either in person or by pleader before a court of revision. The considerations stressed by the learned Advocate General are forceful; but we do not think they should be allowed to override the effect of the statutory provision under Section 397 (1) of the Code. The remedy against conflicting decisions and the resulting chaos, if one party were to resort to the Sessions Judge, and another, to move the High Court in the same proceedings, lies in an appropriate resort to the provisions of Section 402 of the Criminal Procedure Code, which we have extracted earlier. Further under Section 407 (1) (c). there is a wide power of transfer on the High Court where it is expedient to direct a transfer for the ends of justice. in such a case the Section provides for the transfer of any particular case from one subordinate criminal court to another or for transfer of any particular case to the High Court to be tried by itself. These provisions appear sufficient to meet the ends of justice. In the light of the amended provisions of the Code we are satisfied that there is no room for applying any rule of practice or for reviving the principle of the decision in Na-rayanan v. Kannamma Bhargavi (1968 Ker LT 495): (1969 Cri LJ 611) (FB). We also feel satisfied that the rule stated in absolute terms in Abraham's case (1975 Ker LT 451) and in Raman Pillay's case (1975 Ker LT 739) cannot be accepted as correct. These decisions, to the extent to which they laid down the rule in that fashion are overruled.

6. We may briefly notice the state of the authorities cited to us on this question, in Puvvula Abbulu v. State, (1975 Cri LJ 139) a Division Bench of the Andhra High Court after noticing the provisions of the Cr. P. C. ruled that there was no longer any justification for following a rule of practice till then followed by the Andhra High Court and insisting on the party filing a revision first before the Sessions Judge before approaching the High Court. It was this Rule of practice of the Andhra High Court laid down in AIR 1956 Andhra 97; (1956 Cri LJ 571) (2) that was followed by the Division Bench of this Court in 1967 Ker LT 31: (1967 Cri LJ 1640) which view was upset by the Pull Bench in 1968 Ker LT 495: (1969 Cri LJ 611).

7. The Gujarat High Court in Satyanarayana v. Kantilal (1976 Cri LJ 1806) again examined the provisions of the new Cr. P. C. and went to the extent of holding that Rule 14 of the Bombay High Court Rules which ordained that In the matter of filing Criminal Revision petitions the Sessions Judge shall be approached first before moving the High Court, was inconsistent with the provisions of the new Code,

8. The decisions in Mohd. Khan v. Shamim Begum, (1977 Cri LJ 116) (All) and in Harakh Singh v. Lalmuni Kuer (1977 Cri LJ 723) (Pat) are not directly relevant. In the first of these, an application to the Sessions Judge was withdrawn and it was held by the Allahabad High Court that the party was not barred from approaching the High Court. In the second, the application to the Sessions Judge was made and dismissed as not pressed by the party. It was held by the Patna High Court that he was precluded from approaching the High Court. The decisions thus support the position that a party's right of revision cannot be cut down or rendered otiose by any rule of practice. The decisions are consistent with the principle that we have deduced from a construction of the statutory provisions,

In the result, we hold that the revision petition is maintainable in this Court. The case will he posted for hearing in the usual course,

Janaki Amma, J. (Minority view) :--

9. Being a party to the decisions in Abraham v. Thankamma (1975 Ker LT 451) and Raman Pilial v. Dakshayani (1975 Ker LT 739), which have been overruled in the judgment of the Hon'ble the Chief Justice, I would like to express my views on some of the aspects which came up for consideration before the Full Bench. I may also state at the out-Bet that I do not share the embarrassment expressed by Khalid, J. In his order of reference. I feel that it was for sound reasons that the Division Bench decided to continue the rule of practice hitherto followed by the High Court in the matter of entertaining applications for revision and which has been referred to in Devaki v. Kitta(1967 Ker LT 31) : (1967 Cri LJ 1640) and Narayanan v. Kannamma Bhargavi (1968 Ker LT 495): (1969 Cri LJ 611) (FB). It is no doubt true that the High Courts of Andhra Pradesh, Bombay and Gujarat in Puvvula Abbulu v. State Station House Officer, Vijayawada (1975 Cri LJ 139) (Andh Pra), Ma-dhavlal v. Chandrasekhar (1976 Cri LJ 1604) (Bom) and Satyanarayan v. Kantilal (]976 Cri LJ 1806) (Guj) decided otherwise. The decision of the Andhra Pradesh High Court has been referred to by Khalid J., in Abraham v, Thankamma (1975 Ker LT 451) and has been dissented from. The decisions of the Bombay High Court and the Gujarat High Court came after the Division Bench decisions of this court, referred to above. The High Courts of Bombay and Gujarat. I may say with respect, did not take into account the reasons mentioned by the Division Bench of this Court in the Judgments in Abraham v. Thankamma (1975 Ker LT 451) and Raman Pillai v. Dakshayani (1975 Ker LT 739). The above decisions were not brought to the notice of the High Courts of Bombay and Gujarat. For obvious reasons. I do not want to elaborate the grounds covered in 1975 Ker LT 451 and 1975 Ker LT 739.

10. I doubt very much whether the ratio of the decision in Romesh Thappar v. State of Madras (AIR 1950 SC 124)' (51 Cri LJ 1514) has any application in the present context. In that case, it was no doubt contended that as a matter of orderly procedure, the Supreme Court should not entertain an application under Article 32 of the Constitution before resort being made by the petitioner to the High Court under Article 226. The Supreme Court rejected the contention with the observation that Article 32 confers a guaranteed remedy for the enforcement of certain right and not merely a power on the court itself. The decision arose under Article 32 of the Constitution which reads:

"Art. 32 -- Remedies for enforcement of rights conferred by this part:--

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may, by law, empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2).

(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution.

The Article confers a right on the citizen to move the Supreme Court and a power on the Supreme Court to issue directions, orders and writs. While the right of the citizen to move the Supreme Court is guaranteed, the exercise of the power is discretionary in the sense that the Court can refuse to exercise it unless proper grounds are made out. That was the reason why the Supreme Court declined to follow the rule of practice viz., that when concurrent jurisdiction is given in certain matters to the High Court and a Court of a lower grade, the party should proceed io the latter court. The provision relating to revision in Section 397 of the Code of Criminal Procedure stands on a different footing. The marginal note to the section reads:

"Calling for records to exercise powers of revision."

The Section begins with the words:

"The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court............."

The section does not make mention of a motion by a party to a proceeding before an inferior Criminal Court. It is open to the High Court to invoke its revisional powers either suo motu or at the instance of any person. The word "person" is wide enough to include strangers. It is evident that under the scheme of the revisional jurisdiction, no party to a proceeding before an inferior Criminal Court has got a right to claim that a revision petition filed by him should be either admitted for hearing or heard on the merits by the High Court or by the Sessions Judge. The position is covered by the decision of the Supreme Court in P.K. Mitra v. State of West Bengal (AIR 1959 SC 144) : (1959 Cri LJ 256). The Supreme Court held in that case that the revisional jurisdiction vested in the High Court by Section 439 of the Cr. P. C. (1898) is a discretionary power which has to be exercised in aid of justice and added:

"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."

11. The ratio of the decision applies in the case of the revisional jurisdiction conferred under the Code of 1973 (new Code). That this is so is further made clear from Section 403 of the new Code which states that no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision. It is true that Section 397 (3) states that if an application under Section 397 has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. But neither Section 397 (1) nor Section 397 (2) makes mention of any application by any person. Section 397 (3) only means that if either the High Court or the Court of Session is called upon to exercise its revisional jurisdiction by means of an application by a person, no further application will be entertained at his instance by the other of them. Section 397 (3) does not confer an implied right on any party to a proceeding toj move either the High Court or the Sessions Judge. To recognize such an implied right will be against the ratio of the decision in P. K. Mitra v. State of West Bengal (AIR 1959 SC 144) : (1959 Cri LJ 256).

12. if a party to a proceeding has no right to say that a petition filed by him for invoking the revisional powers of the High Court should be either admitted or heard by the High Court, it is within the powers of the High Court to lay down a rule of practice and say that concurrent revisional jurisdiction having been given both to the High Court and to the Sessions Judge, the person desiring to invoke such jurisdiction should1 proceed first to the Sessions Judge. The Sessions Judge under Section 399 and Section 401 of the new Code, is conferred plenary powers of revision and is competent to give relief to the party to the same extent as the High Court. Therefore, the ground which led the Full Bench in Narayanan v. Kannamma Bhargavi (1968 Ker LT 495) : (1969 Cri LJ 611) to modify the rule of practice recommended in Devaki v. Kitta (1967 Ker LT 31) : (1967 Cri LJ 1640) does not exist now.

13. Reference has been made in the course of the hearing to the 41st report of the Law Commission where it makes mention of the recommendations of the Judicial Reforms Committee of Uttar Pradesh that the Sessions Judge may be invested with power to pass final orders in revision in all matters other than petitions against orders of acquittal and for enhancement of sentence. The proposal did not find favour with the Law Commission. The Commission observed :

"The High Court is able to maintain one single standard for interference in such matters; but if this power descends to the Courts of Session, it is very doubtful if a uniform standard can be maintained. There is, then, the plain fact that the High Court can and does, by its prestige, make its decisions acceptable to a large number of people, which would not be the case with the Courts of Session."

It is argued that the rule of practice adopted in the two Division Bench cases of this Court will go against the above report of the Law Commission. That may be so. But a scrutiny of the several sections relating to revisional jurisdiction contained in the new Code will show that the Parliament did not give much weight to the above expression of opinion by the Law Commission. In fact some of the other recommendations of the Law Commission relating to powers of revision are seen not acted upon by the Parliament. Contrary to the recommendation, the Sessions Judge has been made the final authority in cases where his revisional powers are invoked and where he concurs with the views of the trial Court. Therefore, the report of the Law Commission need not be taken into consideration in deciding whether the High Court should lay down a rule of practice. On the other hand, the provisions relating to the revisional jurisdiction in the new Code would tend to show that the Parliament was of the view that only in cases where the Sessions Judge differs from the inferior Court and in cases against the decisions of the Court of Session need the party approach the High Court for invoking its powers of revision.

14. An argument is advanced on the basis of Section 402, Code of Criminal Procedure that the framers of the Code intended to confer the option to persons interested to move either the High Court or the Sessions Judge in matters relating to revision. Assuming that that was the intention, the question is only whether the High Court should exercise its own discretion and lay down a rule of practice as to when the power should be exercised. Section 402 is no answer to the question. On the other hand, if the parties are given the option to move whichever Court they want, Section 402 will be found to be inadequate to cope with a situation where different parties to the same proceeding choose to file separate petitions before the High Court and the Sessions Judge, Section 402 contemplates only cases of revision against conviction. A party convicted is ordinarily entitled to file an appeal against conviction and appeals against conviction, by Magistrates are to be preferred before the Sessions Judge. (See Section 374). If the Sessions Judge confirms the conviction, the revision lies to the High Court only and no question of transfer under Section 402 arises in such cases. It is only in cases where no appeal lies from conviction and in cases where the Sessions Judge makes over the appeal to the Chief Judicial Magistrate that revision petitions can be filed against conviction to the Sessions Judge and in such cases alone, Section 402 can be invoked. On the other hand, there may be cases under Section 125 and Section 1415 and allied provisions in the Code of Criminal Procedure where no conviction is involved. In such cases, if revision petitions are filed by different persons before the High Court and the Sessions Judge, transfer can be effected, only under Section 407, Cr. P. C. If the powers of transfer are not invoked in time, there is the risk of conflicting decisions being arrived at by the High Court and the Sessions Judge. Ordinarily, a party who chooses a particular Court and files a revision petition would like to have his petition heard by that Court. Therefore, if the provisions relating to revisional jurisdiction are to be construed as conferring a right on a person to choose the forum, he is entitled to have the case disposed of by the Court chosen by him and it will be inequitable to transfer his case to another Court just because his opposite party or a stranger chose another forum. Such a contingency is inherent in a transfer under Section 407, Cr. P. C. and can be avoided if the High Court lays down a rule of practice in respect of revision petitions.

15. Reference was also made to the decision in Mohammad Khan v. Shamim Begum (1977 Cri LJ 116) (All) and Harakh Singh v. Lalmuni Kuer (1977 Cri LJ 723) (Pat). Though these cases do not deal with the matter in issue, there is no doubt that problems like those dealt with in the above decisions can be avoided if the rule of practice hitherto followed is continued. This practice has been in force in this Court ever since the coming into force of the new Code and in my view, it has worked satisfactorily. Whenever the order of the Sessions Judge in revision failed to satisfy the concerned person and he made out a case for interference under Section 482 of the Criminal P. C. this Court has not [hesitated to interfere. The Supreme Court has recently held that the bar under Section 397 (3) does not stand in the way of the High Court in exercising its inherent powers in matters which fall under the purview of Section 482, Cr. P. C, See Madhu Limaye v. State of Maharashtra (AIR 1978 SC 47) : (1978 Cri LJ 165). On a parity of reasoning, it is open to this Court to invoke its inherent powers in appropriate cases in spite of the bar under Section 397 (3). In other appropriate cases, the High Court can exercise its powers under Article 227 of the Constitution. It goes without saying that by regulating the exercise of its powers of revision, the High Court is not deprived of such powers. It only means that the High Court, as a prudent measure, with a view to provide an orderly procedure and prevent confusion that may be caused by parties in the same case approaching indiscriminately the High Court and the Court of Session for exercise of their powers of revision decides not to entertain revision petitions from Courts inferior to the Sessions Judge so that the concerned persons may approach the Sessions Judge and seek redress. It is always open to the High Court to exercise its powers of revision suo motu.

16. I am, therefore, of the view that it is only fit and proper that the High Court regulates the exercise of its powers of revision at the instance of individuals and continues the rule of practice referred to in Devaki v. Kitta (1967 Ker LT 31) : (1967 Cri LJ 1640) and Narayanan v. Kannamma Bhargavi (1968 Ker LT 495) : (1969 Cri LJ 611) and followed in Abraham v. Thankamma (1975 Ker LT 451) and Raman Pillai v. Dakshayani (1975 Ker LT 739). I regret that I am unable to agree with the order of the Hon'ble the Chief Justice which has been concurred to by Subramonian Poti, J.

ORDER BY COURT

17. In view of the majority opinion, the Criminal Revision Petition is maintainable in this Court and the same will be posted for hearing in the usual course.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //