1. The question referred for the decision of the Full Bench is whether a party invoking the revisional jurisdiction vested under Section 435 Code of Criminal Procedure can straightway move the High Court or that he should first move the Sessions Judge or the District Magistrate and then only the High Court. The aggrieved party comes to this Court normally under Section 439 read with Section 435 of the Code. Section 435 reads:--
'The High Court or any Sessions Judge or District Magistrate, or any Sub-Divi-sional 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.'
If after perusal of the record called for under the above section, the Sessions Judge or the District Magistrate is of opinion that the order of the inferior Court needs correction or setting aside, he must under Section 438, report for the orders of the High Court, the result of such examination and when such report contains a recommendation that a sentence (or an order) be reversed or altered, he may order the execution of the sentence or order be suspended and, it the accused is in confinement, he be released on bail. In the case of the High Court on the other hand, when 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, it is open to it in exercise of any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428, to impose the sentence. Thus the High Court alone can pass effective orders in correction of the order of the Subordinate Magistrate, and so the question is whether the party aggrieved can straightway come to this Court by-passing the Sessions Judge or the District Magistrate as the case may be.
We do not see any legal bar to a party coming direct to this Court without first moving the Sessions Judge or the District Magistrate and the practice, here, all along has been to entertain such petitions in the High Court direct. But in some States 'a practice of long standing has grown up under which the High Court does not ordinarily entertain an application in revision unless the District Magistrate or the Sessions Judge has been moved first.' A Division Bench of this Court in Devaki v. Kitta, 1967 Ker LT 31 = (AIR 1967 Ker 280) upholding the above practice and laying down and settling the procedure for this Court, has held that a party invoking the revisional jurisdiction under Section 435 has no right to approach the High Court direct, without moving in the first instance, the Sessions Judge, who according to the learned Judges has concurrent revisional jurisdiction, with the High Court. The aforesaid Division Bench decision now stands in the way of a petition in revision under Section 435 being received in this Court direct. The learned Judges of the Division Bench have followed in support of their view a Division Bench ruling of the Andhra Pradesh High Court in Veera Ramayya v. Udayagiri Venkata Seshavatharam, AIR 1956 Andhra 97. Chief Justice Subba Rao, on a review of the relevant authorities, observed in that case that the practice followed by all the High Courts except Madras, was, not to entertain revision directly in the High Court from orders of the Subordinate Magistrate, unless the aggrieved party in the first instance had moved the Sessions' Judge or the District Magistrate as the case may be. Gopalan Nambiyar, J., speaking for the Bench in 1967 Ker LT 31 = (AIR 1967 Ker 280) would observe:--
'But what is contended by the Counsel for the petitioner is that the Sessions Judge cannot pass an effective order in revision, but must refer the case to the High Court under Section 438 of the Code to be dealt with under Section 439. Even so, the question arises whether as a matter of salutary practice, and in the interests of the better and efficient administration of justice, the party should first move the inferior Court having concurrent revisional jurisdiction, before approaching the High Court.'
We doubt very much whether the practice is really salutary and conducive to the better and efficient administration of criminal justice. Chief Justice Subba Rao seems to have weighed in the decision cited, the points for and against the alleged practice and has observed that the weight of authority and reasoning is in favour of continuing the practice. The points in favour are:--
(a) The time of the High Court will not be wasted with frivolous applications;
(b) The High Court will have the advantage of the considered opinion of the Sessions Judge or the District Magistrate as the case may be and in most of the cases its work would be facilitated or minimised in disposing of revisions;
(c) The Subordinate Courts are within the easy reach of the parties and the expenditure to be incurred will be comparatively less than in the High Court;
(d) It avoids conflict of jurisdiction; and
(e) The legislature in conferring concurrent jurisdiction may reasonably be assessed to have intended that the inferior Court should exercise jurisdiction in the first instance.
The points against are:--
(1) The Subordinate Courts have no inherent power to make interim orders of stay and, therefore, an aggrieved party may not get the entire relief he seeks if he approaches the Sessions Court or the District Magistrate's Court in the first instance;
(2) The Sessions Court or the District Magistrate's Court will not be in a position to make a final order and a party has to make arrangements for representing him in two Courts i.e., in the Sessions Court or the District Magistrate's Court as the case may be and also in the High Court; and
(3) The order of the High Court would be final whereas if the revision petition was dismissed by the Subordinate Court, another revision may have to be filed in the High Court.
The learned Chief Justice would conclude finally that the prevailing practice namely, to prevent a revision under Section 435 being preferred direct to the High Court, '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'. On a careful survey of the authorities bearing on the point and on considering carefully the points for and against, we are of the view that a party invoking the jurisdiction of this Court under Section 439 read with Section 435 should be permitted to come to this Court direct, without first moving the Sessions Judge or the District Magistrate. The jurisdiction vested in this Court under Section 439 is very wide, and this Court in exercising the jurisdiction so vested, is not expected to enquire whether the party seeking the remedy had moved the Sessions Judge first. Chief Justice Subba Rao himself has made this position clear in the following words:--
'We should not be understood to have laid down that the High Court has no jurisdiction to entertain a revision in the first instance. The Criminal Procedure Code in terms expressly confers the jurisdiction. Nor do we say that it is an inflexible rule of law that under no circumstances should the High Court entertain a revision if the aggrieved party did not file a revision in the first instance in the inferior Court. Nor do we intend tolay down any rule, which, directly or indirectly affects the undoubted inherentpowers of the High Court to pass orders, to prevent grave and substantial injury to the parties.
But in our view the salutary practice to be followed in this High Court should be that ordinarily the High Court will not entertain a revision unless the aggrieved party approached an inferior Court in the first instance and will not deviate from that practice, except on special exceptional or extraordinary grounds. When there are no such grounds, the mere fact that a revision has been admitted by this Court cannot make any difference in the enforcement of the rule of practice, for the party who with open eyes ignored the practice and filed a revision direct in the High Court, cannot take advantage of his deviation from the rule of practice.'
2. Having conceded the right of a party to approach this court direct under Section 435, we do not think it proper to letter the right by insisting on exceptional or extraordinary grounds being made out for entertaining the petition. What could be 'exceptional or extraordinary grounds' is not clear from the judgment of the learned Chief Justice. Could a party be permitted to plead that the High Court is nearer to him than the Sessions Court or that according to him better legal aid is available in the High Court centre, to justify his coming direct to the High Court? We do not think that in entertaining the petition any such grounds could be considered proper or sufficient. The plea that the Sessions Judge or the District Magistrate has no inherent power to make orders of stay and therefore the party would be justified in approaching this Court direct, is also not correct. The section itself confers on the Sessions Judge and the District Magistrate the power to suspend execution of the sentence or order and also to release the accused on bail. But the Sub-Divisional Magistrate does not possess such a power even though he also is possessed of revisional jurisdiction under Section 435. In his case the records will have to be forwarded to the District Magistrate for passing such interim orders. This power of passing interim orders of suspension could be exercised even when a recommendation under Section 438 is made. It is, therefore, difficult for a party to find exceptional or extraordinary grounds to justify his action in approaching this Court direct. The result would be that without first approaching the lower Court, it would be impossible for an aggrieved party to approach this Court because of the insurmountability of the condition imposed.
The Gujarat and Patna High Courts have expressed themselves in favour ofa party approaching the High Court without first approaching the Sessions Judge or the District Magistrate. A Single Bench of the Gujarat High Court in Suraj Mohan v. State, AIR 1967 Guj 126 has observed:--
'It was then said that the applicant has not gone to the Sessions Court against an order passed by the learned Magistrate and has come directly to this Court. Ordinarily it is true that the High Court is reluctant to entertain the petition in revision directed against any order passed by the Magistrate. But even if he had gone to the Sessions Court, it was not possible for it to pass any adequate orders and it would have been required to refer the matter to the High Court for having suitable orders in the matter. That would have taken a good lot of time and the purpose behind the claim in the petitioner would obviously be frustrated. There is no bar under any provision of law, saying that an application in revision cannot lie directly to the High Court and that it must always come through the Sessions Court.'
To the same effect is the Division Bench ruling of the Patna High Court in Sahdev Mandal v. Honga Murmu, AIR 1967 Pat 223.
3. We cannot shut our eyes to the glaring fact that the Sessions Judge or the District Magistrate is incompetent to render adequate relief to an aggrieved party invoking the revisional jurisdiction vested in them under Section 435. If the Court is satisfied that the revision is frivolous, the petition will be dismissed, but on the other hand if it is satisfied that the order of the Subordinate Magistrate has to be vacated, a report to that effect will have to be forwarded to this Court under Section 438. In either case, the party will have to appear in this Court and present his case again. It is true that 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 the conviction or the severity of the sentence is patent. But, as a general rule the accused is also served with notice on the reference, and he appears either personally or through pleader. In all cases where the Sessions Judge or the District Magistrate refuses to make a reference, the petitioner has a right to approach this Court. The effect is that an aggrieved party is put to the trouble of presenting his case in two Courts one after the other.
The view, that if this practice is followed, the work of the High Court would be minimised, does not appear to us to be convincing. The High Court, in any event, will have to be approached by theaggrieved party at the final stage and it is unreasonable to think that the High Court would cease to be flooded with petitions of this kind if the restriction is tightened. Effective orders can be passed by the Sessions Judge and the District Magistrate, only in dismissal of complaints under Sections 203 and 204(3) in orders of discharge. In all other instances the District Magistrate or the Sessions Judge sitting in revision, can only make & reference as contemplated in Section 438 if satisfied that the order under revision is wrong and calls for interference. We would also like to point out that it is not correct to say that the jurisdiction vested in the Sessions Judge and the District Magistrate on the one hand, and the High Court on the other, is 'concurrent' in the strict sense of the term. The expression 'concurrent' connotes 'joint and equal in authority'. In other words, the two agencies or units should possess co-equal powers; but in the present instance the power is not co-equal as we have already seen.
4. There is also another handicap and that takes us to the Question of limitation. Article 131 of the new Limitation Act prescribes a period of 90 days for entertaining an application of this nature and the period would run from the 'date of the decree or order or sentence sought to be revised.' The period has to be reckoned from the date of the order of the Magistrate and not of the Sessions Judge declining to make the reference, On this matter, the Patna High Court would observe in AIR 1967 Pat 223 cited already:
'We, therefore, hold that in a case, where a party makes an application in revision to this Court for setting aside an order of a Magistrate passed in a proceeding under Section 145, Code of Criminal Procedure, the period of ninety days prescribed by Article 131 of the new Limitation Act is to be counted from the date of the order of the Magistrate, and that, in such a case, the petitioner is not bound to approach the Court of Session before coming to this Court.'
Normally some time would elapse before the Sessions Judge is able to pass an order either declining to refer or making a reference and by that time the period of ninety days would in most cases run out. In such a situation, without an application fr condonation of delay, the revision petition would not be entertained. The pendency of the petition in the Sessions Court no doubt could be urged as ground for the delay and it is possible that the Court may view the ground liberally and excuse the delay. That apart, the fact remains that the party is put to additional expenses, on that count.
When the law confers a right on a party he must be able to enjoy the right without shackles or snag obstructing him. To avail himself of a remedy held out by the Code, the party is asked to approach first a tribunal with no power to render the relief. This in effect is putting the party in double-jeopardy. We are of the view that it would be improper to compel a party having a strong case in his favour under Section 438 of the Code, to approach first the Sessions Judge or the District Magistrate. He should not be compelled to do so except in cases where the Sessions Judge or the District Magistrate is capable of passing effective orders, as in a case of discharge or dismissal of complaint. In all other revisional matters the aggrieved party may approach this Court direct if so inclined.
5. We would answer the reference inthe above terms.