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Brahmchari Satyanarayan Maharaj Vs. Kantilal L. Dave and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1976CriLJ1806; (1976)GLR979
AppellantBrahmchari Satyanarayan Maharaj
RespondentKantilal L. Dave and ors.
Cases ReferredP. Abbulu v. State
Excerpt:
.....could be refused relief on the ground that unless special circumstances are made out, his revision application cannot be entertained because he had failed to move the sessions court. 3. it might be stated that even in the absence of a statutory provision like rule 14, several high courts in this country had evolved a practice not to entertain a revision application filed by an aggrieved party under the old code without approaching the sessions judge (or the district magistrate) in the first instance. when any failure of justice is brought to the notice of the high court, it could certainly interfere and see that justice was done to the party inasmuch as the high court discharges statutory functions of supervising the administration of justice. , observed that it was well-nigh..........could be refused relief on the ground that unless special circumstances are made out, his revision application cannot be entertained because he had failed to move the sessions court. having regard to the importance of the question, the matter has been referred to a division bench. we do not, however, propose to decide the entire case on merits. we shall only deal with and decide the question set out above and pass appropriate orders with regard to the disposal of the case on merits in accordance with the view which we ultimately take. under the circumstances, it is not necessary to set out the facts giving rise to the revision application.2. in order to appreciate the proper dimension of the point at issue, it would be necessary first to make reference to the relevant statutory.....
Judgment:
ORDER

1. The question which arises in this revision application is whether, in the context of the relevant provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code), an aggrieved person, who invokes the revisional jurisdiction of the High Court directly without approaching the Sessions Court in the first instance, could be refused relief on the ground that unless special circumstances are made out, his revision application cannot be entertained because he had failed to move the Sessions Court. Having regard to the importance of the question, the matter has been referred to a Division Bench. We do not, however, propose to decide the entire case on merits. We shall only deal with and decide the question set out above and pass appropriate orders with regard to the disposal of the case on merits in accordance with the view which we ultimately take. Under the circumstances, it is not necessary to set out the facts giving rise to the revision application.

2. In order to appreciate the proper dimension of the point at issue, it would be necessary first to make reference to the relevant statutory provisions. Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960, which bears the title 'Criminal Business', provides in Rule 14 as under:

14. In the absence of special circumstances, the High Court will not entertain an application for revision where an application for revision might have, but has not, been made to a lower revisional Court.

This rule was enacted when the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) was in force. Under the Old Code, the scheme for the exercise of revisional powers, in general terms, was as follows. Under Section 435, the High Court and Sessions Judge had concurrent power to call for and examine the records or proceedings before any inferior criminal Court situate within the local limits of its or his jurisdiction and satisfy 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 proceeding of such inferior Court. The further course to be adopted by the concerned revisional authority was indicated in Sections 436 to 439. If it was found that any complaint had been wrongly dismissed under Section 203 or Sub-section (3) of Section 204 or any person accused of an offence had been wrongly discharged, then, a 'further inquiry into the case could be ordered by the revisional authority (see Section 436), If it was found that an accused person should have been committed for trial to the Sessions Court but had been improperly discharged by an inferior Court, the revisional authority could order a committal to be made (see Section 437), In all other cases, where the illegality or impropriety was of some other kind, the Sessions Judge, if he was the revisional authority, could only report the case for the orders of the High Court (see Section 438). The High Court's powers of revision were very wide. In a case, the record of which was called for by itself, or which had been reported for orders, or which otherwise came to its knowledge, the High Court had all the powers of a Court of appeal and it could also enhance the sentence. The only restriction on its revisional powers was that it could not change an acquittal into a conviction, although, of course, it could order a retrial (see Section 439). The scheme of revisional powers under the foregoing provisions of the old Code reveals that though concurrent revisional jurisdiction was conferred upon the High Court and Sessions Judge, except in regard to the cases referred to in Section 436 and Section 437, a Sessions Judge had no final power of revision which rested in all cases with the High Court. All other cases, which were not covered by those two sections, could only be reported for orders to the High Court with recommendations. It is in the context of this scheme of revisional powers that Rule 14, which has been set out earlier, was enacted in the exercise of the rule-making power of the High Court.

3. It might be stated that even in the absence of a statutory provision like Rule 14, several High Courts in this country had evolved a practice not to entertain a revision application filed by an aggrieved party under the Old Code without approaching the Sessions Judge (or the District Magistrate) in the first instance. So far as the Calcutta High Court is concerned, there are three reported decisions which lay down that the High Court would not, save on some special ground shown, entertain a revision application, unless a previous application shall have been made to the lower Court having a concurrent jurisdiction (See Queen-Empress v. Reolah (1887) ILR 14 Cal 887; Emperor v. Abdus Sobhan (1909) ILR 36 Cal 643 : 10 Cri LJ 190 and Rash Behari v. Phani Bhusan (1921) ILR 48 Cal 534 : 22 Cri LJ 650. The decision in Reolah's case (supra) was arrived at, as indicated in Abdus Sobhan's case (supra), after consultation with the Chief and other Judges of the Calcutta High Court on the point. Similar rule or practice appears to have been obtaining in the High Court of Patna as revealed by Bipin Behari Mukharji v. Emperor AIR 1918 Pat 588 : 19 Cri LJ 589; Prasad Gareri v. Mt. Kesari AIR 1941 Pat 444 : 42 Cri LJ 347 and Chairman, Bihar Municipality v. Mt. Ramnandi Kuer AIR 1941 Pat 548 : 43 Cri LJ 110. The Assam High Court in Gobardhana Das v. Chaturbhuj AIR 1950 Assam 165 made reference to a similar practice prevailing in that Court. The Lahore High Court appears to have adopted the same rule (see Mohammed Ishaq v. Emperor AIR 1927 Lah 689 : 28 Cri LJ 815). The Chief Court of Oudh fell in line with this practice as is evident from the decision in Debi Singh v. Emperor AIR 1941 Oudh 268 : 42 Cri LJ 349. The Allahabad High Court in a Full Bench judgment delivered by an eminent Judge, Sulaiman, C, J., in Shailabala Devi v. Emperor AIR 1933 All 678 : 34 Cri LJ 1115 (FB), referred to the long standing practice which had grown up in the said High Court on similar lines. The Nagpur High Court also followed the same practice (see Baji-rao v. Mt. Dadi Bai AIR 1926 Nag 285 : 27 Cri LJ 212 and Chinai v. Emperor . The Andhra Pradesh High Court also adopted the same practice (see Veeraramayya v. Venkata Seshayatharam AIR 1956 Andhra 97 : 1956 Cri LJ 571 (2) and Sri Rama Murthy v. State : AIR1959AP377 . The Bombay High Court followed similar practice. In Queen-Empress v. Chagan Dayaram (1890) ILR 14 Bom 331 it wag observed that the Bombay High Court was of late following the decision of the Calcutta High Court in Reolah's case (supra) and refusing to entertain revision applications 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. In Savlaram v. Dnyaneshwar Vishnu AIR 1942 Bom 148 : 43 Cri LJ 708 it was reiterated that the High Court would not normally receive a revision petition unless the lower Courts were previously moved. So far as this High Court is concerned, there are two decisions to which reference may be made. In Suraj Mohan Babu Mishra v. State of Gujarat 7 Guj LR 974 : 1967 Cri LJ 767, N.G. Shelat, J., observed that ordinarily the High Court was reluctant to entertain any petition in revision directed against any order passed by the Magistrate. However, there was no bar under any provision of law that an application in revision could not lie directly to the High Court and that it must always come through the Sessions Court. When any failure of justice is brought to the notice of the High Court, it could certainly interfere and see that justice was done to the party inasmuch as the High Court discharges statutory functions of supervising the administration of justice. The attention of the learned Judge does not appear to have been invited to the decisions of the Bombay High Court referred to earlier which are binding on this Court as also to Rule 14. That is why in Dahya Deva v. The State of Gujarat (1973) 14 Guj LR 184, D.A. Desai, J., observed that it was well-nigh certain that had the attention of the learned Judge been drawn to Rule 14, an observation as wide as the one made in Suraj Mohan's case (supra) would not have found place in the said decision. D. A. Desai, J., further observed that the scheme of Sections 435 and 438 of the Old Code read with Rule 14 indicated that except for special circumstances, to be alleged and prima facie established, the party aggrieved by an order of the Magistrate, must first approach the Sessions Judge and that the High Court would not in the absence of special circumstances entertain a revision application directly. The only High Court which appears to have followed a different practice is the Madras High Court but not invariably. Even in that High Court a view appears to have prevailed that the High Court should not interfere in revision till the other remedy available to the petitioner in the lower Court was availed of (see Gopobondu Behara v. Venkatesam Pantulu AIR 1924 Mad 228 : 25 Cri LJ 310 and Kasi Vishwanadham v. Madan Singh AIR 1948 Mad 422 : 49 Cri LJ 540).

4. It would appear from the foregoing review of the decided cases of the various High Courts, including the Bombay High Court and this High Court, that it was a consistent practice invariably followed by almost all the High Courts in this country not to entertain, except in special circumstances, a revision application directly under the provisions of the Old Code until the aggrieved party had first moved the Sessions Judge (or District Magistrate). The reasons for evolving this rule have been variously mentioned in the decided cases. By and large, the practice has been described as having been based on grounds of convenience and supportable on the following premises; (i) the legislature must be reasonably assumed to have intended, while conferring concurrent revisional jurisdiction, that having regard to the hierarchy of Courts envisaged in Section 6 and Section 6-A of the old Code, the interposition of the intermediate Court in the matter of exercise of concurrent revisional jurisdiction should be insisted upon, (ii) the intermediate Court is on the spot and is easily accessible and the record could be locally called for promptly without any loss of time; (iii) the High Court will have the advantage of the considered opinion of the intermediate Court and in most of the cases its work would be facilitated or minimised in disposing of revision applications; (iv) the time of the High Court would not be wasted over frivolous applications with which it might be flooded unless this salutary rule or practice was to prevail because there would be temptation and encouragement to the aggrieved party to come up straight to the High Court, especially when the intermediate Court could only report to the High Court and could not itself pass a final order in favour of such party, and (v) the intermediate Court being within the easy reach of the parties, the expenditure to be incurred would be comparatively less than in the High Court. The underlying object behind the enactment of the abovementioned rule or practice is apparently laudable and, even apart from the existence of a statutory provision like Rule 14 and the overwhelming authority of judicial opinion, such rule or practice should not be lightly departed from having regard to such object. Unless, therefore, there are compelling circumstances, we would ordinarily be loath to recommend a departure at this stage from such healthy practice or rule.

5. The vital change in the law, however, which projects a new angle, weighty in itself, calls for a reconsideration of the question. The provisions of the New Code relating to the revisional powers have enacted a new scheme with the end in view of expeditious disposal of revision applications. The hierarchical system coupled with concurrent jurisdiction conferred on Courts at two different levels led to revision from one Court to another thus encouraging protracted and costly litigation and delay in disposals. That apart, although the Sessions Judges had concurrent jurisdiction, except in matters referred to in Section 436 and Section 437 of the Old Code, they could not pass any final orders in revision and this required a journey from the Sessions Judge Court to the High Court in cases where some other illegality or impropriety was found by the Sessions Judge. To avoid this tortuous course, the Law Commission in its 14th report on the Code recommended that the Sessions Judge should be invested with powers to pass final orders in revision in all matters other than petitions against orders of acquittal and for enhancement of sentence (see Vol. II Page 826). The Law Commission in its 41st report on the Code, however, went back on this recommendation and observed, for the reasons set out in the relevant part of its report, that there was no reason to disturb the existing scheme of revision which was not shown to have worked unsatisfactorily (see Vol. I page 287). It, therefore, did not find it necessary to change the existing scheme of revisional powers except, In so far as it is relevant, to the extent that it recommended that when an application was made under Section 435 either to the Sessions Judge or to the Chief Judicial Magistrate or to the District Magistrate, no further application shall be entertained by the other two authorities. The High Court's power of revision over the decision in revision of the intermediate Court, however, was not recommended to be disturbed,

6. A draft bill to consolidate and emend the law relating to Criminal Procedure was prepared in accordance with the recommendations contained in the 41st report of the Law Commission. The bill was referred to a Joint Committee of the Parliament. The Committee, having given careful consideration to the provisions made in the Bill with respect to re-visional powers, recommended certain further changes on the following lines, (i) Sessions Judges should be given the power to finally dispose of all revision cases taken up by them, (ii) if an application for revision has been made by a party either to the Sessions Judge or to the High Court, no further application should be entertained by the other of them; (iii) order of the Sessions Judge in revision should be final and no further revision to the High Court should be permitted; (iv) in case one of the several accused persons moves the High Court and other accused persons move the Sessions Court in the same matter in revision, the High Court should decide which of the two Courts should deal with the matter, having regard to the general convenience of the parties and the importance of the question involved, and thereupon all proceedings in respect of the same matter pending in the other Court should stand transferred (see p. XXVIII of the report of the Joint Committee). The relevant clauses of the Bill were accordingly redrafted and the redrafted Bill went before the Parliament.

7. When the Bill ultimately became an Act, in the New Code in Chapter XXX provision was made for powers of reference and revision. Sections 397 to 405 contained in the said Chapter relate to revisional powers. Out of those sections. Sections 397, 399, 401 and 402 are material and they read as under:

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.

Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(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.

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-section 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 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 interest of justice so to do, the High Court 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 decide, having regard to the general convenience of the parties and the importance of the questions 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.

It would appear from the relevant provisions of the New Code relating to revision set out above that: (i) the High Court and Sessions Judge have full concurrent revisional jurisdiction inasmuch as the revisional power of the Sessions Judge is coextensive with that of the High Court and his power to make final orders in revision is not confined now merely to the cases of any complaint wrongly dismissed or any accused person wrongfully discharged as was the case under the old Code, (ii) if an application for revision has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person is to be entertained by the other of them; (iii) where an 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', is final and no further proceedings by way of revision 'at the instance of such person' are to be entertained by the High Court or any other Court; (iv) even in cases where a revision application is transferred by the High Court to the Sessions Judge, no further application for revision is to lie to the High Court or to any other Court at the instance of the person or persona whose applications for revision have been disposed of by the Sessions Judge, and (v) neither the Sessions Judge nor the High Court has the jurisdiction now to exercise revisional powers in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The legislative mandate is thus categorical and clear; full concurrent revisional jurisdiction in two different Courts at two different hierarchical levels is conferred but once an application has been made and entertained by one of them, the other shall not entertain any further application by way of revision at the instance of the same person. Besides, when the Sessions Judge is moved, his decision in revision in relation to such person is to be treated as final and no further revision at the instance of such person is to be entertained by the High Court. The net effect, therefore, is that while a person has the chance to move either the High Court or the Sessions Judge in revision and obtain complete relief in either of the two forums, if he makes the choice to go before the Sessions Judge, he cannot thereafter approach the High Court, even if the Sessions Judge rejects the revision application.

8. This new scheme of revision enacted with the end in view of expeditious disposal of revision applications by conferment of full concurrent jurisdiction on two different Courts and making the exercise of revisional jurisdiction by one Court final and conclusive, has a great bearing on the question of propriety and desirability of continuing the old practice as embodied in Rule 14. The very basis of enacting the rule or practice of requiring a party to first approach the Sessions Judge except in exceptional cases was that: (i) it was always open to the aggrieved party to approach the High Court in revision even against a decision given by the Sessions Judge in revision and if such party was directed to make a revision first to the Sessions Judge, his right to approach the High Court ultimately was not in any manner affected; and (ii) when concurrent jurisdiction was conferred on two different Courts at different hierarchical levels, it must be presumed that the inferior Court should exercise jurisdiction in the first instance and that the Superior Court should have advantage of its considered opinion if it ultimately became necessary for it to exercise revisional jurisdiction. These two main considerations underlying the evolvement of the rule or practice in question have now totally disappeared. The decision of the Sessions Judge, if he is approached first, is made final and conclusive (except in cases of suo motu revision about which it prima facie appears that the powers of the High Court are not intended to be affected). A person aggrieved by the Sessions Judge's decision would have no right to approach the High Court in revision. Such being the position under the new Code, any rule or practice which requires such a person to first approach the Sessions Judge would be out of place. When there are no successive approaches, there cannot be, in the very nature of things, any insistence about the first approach. Besides, the re-visional power is to be exercised now in relation to final decisions only and not in relation to any interlocutory orders. Therefore, the cases which would go up in revision would ordinarily be cases of final decisions, of course, in minor cases such as those covered by Sections 106, 144, 145 or in cases covered by Sections 203, 227, 239, 245, 249, 250 etc. If an aggrieved person is compelled to go before the Sessions Judge even in such cases against the aforesaid background, it would interfere with his choice of revisional forum in matters which might be of importance to him in derogation of his inherent right flowing out of the provisions of law whereunder concurrent jurisdiction is conferred on two different Courts.

9. In view of the foregoing discussion, we are of the opinion, therefore that the practice as embodied in Rule 14, which has been almost unanimously followed so far in all the High Courts in India, is inconsistent with the revisional scheme of the New Code. The High Court cannot, in the changed circumstances, in pursuance of such practice or rule, refuse to entertain a petition under Section 397(1) On the ground that the Sessions Judge has not been moved before the High Court was approached. Similar view has been taken in P. Abbulu v. State 1975 Cri LJ 139 (Andh Pra) by a Division Bench of the Andhra Pradesh High Court. We respectfully agree with the said view. Rule 14 of Chapter XXVI must accordingly be treated as having stood abrogated in the light of the scheme for exercise of revisional powers as embodied in the relevant statutory provisions of the New Code.

10. In view of the foregoing conclusion, the case must now go before the single Judge to be dealt with and decided on merits.


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