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In Re: (Saiyed) Anif Sahib and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1925Mad993; 85Ind.Cas.727
AppellantIn Re: (Saiyed) Anif Sahib and ors.
- .....prosecutor.2. dr. swaminadhan took the preliminary objection to our proceeding to hear the present criminal revision case, that this court having already disposed of a revision petition in respect of the same criminal case is functus officio and cannot re-open the matter. in other words he argued that the high court has no power of revision over the criminal proceedings of inferior courts. he referred to section 369, cr.p.c. and to in re runga rao : (1912)23mlj371 and an unreported case in re kunhammad haji a.i.r. 1923 mad. 426 in which it was held that an order passed in the exercise of the high court's powers of criminal revision could not be reviewed or revised. the only exception to this rule recognised by the law as stated in in re runga rao : (1912)23mlj371 , is that a court of.....

Spencer, J.

1. This criminal revision case originated in a reference made by the District Magistrate, Trichinopoly, under Section 438(1), Cr.P.C. recommending an enhancement of the sentences which-were reduced in consequence of the appeal of the accused to the Sub-Divisional Magistrate. Their appeal was decided on August 10th, 1923. A revision petition (Cr.R.C. No. 561 of 1923) against their conviction was presented to this Court by Mr. V.L. Ethiraj and was dismissed by Mr. Justice Krishnan on 15th August, 1923, without giving notice to the Public Prosecutor.

2. Dr. Swaminadhan took the preliminary objection to our proceeding to hear the present criminal revision case, that this Court having already disposed of a revision petition in respect of the same criminal case is functus officio and cannot re-open the matter. In other words he argued that the High Court has no power of revision over the criminal proceedings of inferior Courts. He referred to Section 369, Cr.P.C. and to In re Runga Rao : (1912)23MLJ371 and an unreported case In re Kunhammad Haji A.I.R. 1923 Mad. 426 in which it was held that an order passed in the exercise of the High Court's powers of criminal revision could not be reviewed or revised. The only exception to this rule recognised by the law as stated in In re Runga Rao : (1912)23MLJ371 , is that a Court of Appeal may re-admit and hear a criminal appeal dismissed for default of appearance, as such a dismissal is not a proper disposal of the appeal. In In re Kunhammad Haji A.I.R. 1923 Mad. 426 this exception was held to apply also to criminal revision petitions dismissed for default of appearance, although the earlier ruling excluded them.

3. I am of opinion that the preliminary objection is not sound. If there had been any adjudication by Krishnan, J., on the question of sentence, I should have no hesitation in refusing to let the same question be re opened before us. But there is no indication from his brief order in Cr.R.C. No. 561 of 1923 that the learned Judge applied his mind to the extent of the sentence and there is no affidavit before us declaring that it was argued before him. It is most improbable that upon the accused's application which was disposed of without notice to the Public Prosecutor any question of enhancing the sentences was raised, and if the Judge had considered that any of the sentences should be enhanced, he would have been bound to give the parties notice under Section 439(2) of his intention of dealing with the question of enhancement. No notice was issued. Ordinarily a Judge disposing of a revision petition filed by a convicted person or his Pleader against the propriety of his conviction cannot be said to be adjudicating on the question of enhancing the sentence. A Court exercising its revisional powers upon a revision petition ordinarily deals with the points raised in the petition and has no occasion to travel outside them and consider the whole case upon its merits, as the Court that tries the accused and the Court that hears the appeal, if any, does. It might be otherwise in a revision case taken up by the Court suo motu. But this is not such a case.

4. In the amended Cr.P.C. there is a new sub-section to Section 439 which runs thus:

Notwithstanding anything contained in this section any convicted parson to whom an opportunity has been given under sub-Section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

5. This is a very valuable and necessary provision for securing the liberty of the subject. In a trivial case an accused person, conscious of the justice of his conviction, might possibly prefer to submit to a light sentence rather than incur the expense of moving the High Court to interfere in revision in consequence of an error of jurisdiction of the Trying Court. Bui if there was a likelihood of the sentence being enhanced, say from a small fine to a term of imprisonment, he would naturally wish to canvass the legality of the conviction, even at the risk of an order for re-trial, and it is only just that he should be given by Statute the legal right to do so. It is pointed out that the words 'unless he has already done so' do not occur in the end of this sub-section, but we must assume that they are implied from the ordinary presumption as to the finality of orders in criminal revision proceedings.

6. As Section 435, Cr.P.C., vests the High Court and Sessions Judges and District Magistrates with concurrent powers of calling for and examining the records of inferior Courts, it must occasionally happen that more than one criminal revision case arises out of a single trial by a Subordinate Court. The only limitation to the exercise of the right to apply for revision is that, under Sub-section (4) to Section 435, applications for revision cannot be made both to the Sessions Judge and to the District Magistrate. Also a petitioner would in practice be required to state all his grounds for revision in a single petition. With these exceptions there is nothing in the Code to make the disposal of one criminal revision case a bar to the disposal of another arising out of the same original trial. It is only when there has been an actual adjudication upon a particular paint, such as the jurisdiction of the lower Court to try the accused or the adequacy of the sentence, that the High Court will not review its own decision.

7. The preliminary objection is, therefore, overruled. On. the merits of the reference I do not consider that the Sub-Divisional Magistrate was right in regarding the sentences as excessive ia view of the provocation caused by prosecution witness No. 8. All that P.W. No. 8 did was to pull back prosecution witness No. 1 when he rose to obey 1st accused's order to beat the drum at the Nagara and to retort to 1st accused's abuse. For this the 1st accused stabbed him in the head, and the second accused broke both his legs.

8. The sentence of two months' rigorous imprisonment and Rs. 100 fine imposed by the Sub-Magistrate on the 1st accused for an offence under Section 324, Indian Penal Code, and the sentence of four months' rigorous imprisonment and fine of Rs. 200 passed on the second accused for causing grievous hurt under Section 325, Indian Penal Code, were light sentences for such cruel treatment and certainly did not call for any reduction. The Sub-Magistrate stated in his judgment that even after discharge from hospital the complainant would be deformed for life. He was an in patient for over four and a half months. That was the result of the second accused's act.

9. The sentence passed on the 1st accused by the Sub Magistrate will, therefore, be restored and he will be committed to prison to undergo the portion remitted by the appellate Court. The second accused's sentence is enhanced to 18 months' rigorous imprisonment and a fine of Rs. 200 with six weeks' additional imprisonment in default. The 3rd accused was a servant, who followed the example of his masters and gave two blows on P.W. No. 8's arm with a stick, which only caused contusions. It is unnecessary to interfere with his sentence of one week's rigorous imprisonment already undergone and a fine of Bs. 50 although in his case the short sentence of rigorous imprisonment should have been avoided as unlikely to improve his character.

Wallace, J.

10. This is a reference by the District Magistrate of Trichinopoly asking this Court to exercise its powers of criminal revision and enhance the sentence passed on the accused in C.C. No. 152 of 1923 on the file of the Town Sub-Magistrate. Under the new Cr.P.C. Section 439(6), the accused are entitled when such a reference is being heard, to show cause against the conviction. Now in this case the accused themselves presented to this Court a criminal revision petition against their conviction and that petition (Cr.R.C. No. 561 of 1923) was rejected by this Court on the ground that 'there is no reasonable ground for interference in revision.'

11. Dr. Swaminadhan for the accused contends that this Court having once exercised its powers of revision in the matter of this conviction, is functus officio and cannot entertain any fresh petition asking for any sort of interference with the conviction and sentence now under consideration. His point is that the power of the High Court to revise a decision or order of a Subordinate Criminal Court can be exercised once and once only. It is of the nature of a general and comprehensive scrutiny by the Court to satisfy itself of the correctness, legality or propriety of the finding, sentence or order under re-vision. He supports this argument by pointing out that no party has any right to be heard by the Court sitting in revision, and argues that, when once the Court has taken up a case for revision, and looked into the case and passed an order therein, it has once for all decided one way or the other, either that the order or decision should be revised, or that it should not be revised and, if the former has decided once for all on what lines it calls for revision, implying thereby that it does not call for revision on other lines, and that, therefore, the matter of revision on any other lines is of the. nature of res judicata and would be a violation of Section 369 of the Cr.P.C. He contends, therefore, that the order on Cr.R.C. No. 561 of 1923 prevents us, e.g. from now setting aside the conviction of the accused and, therefore, precludes us from giving effect to the provisions of Section 439(6) and from hearing the question of the enhancement of sentence.

12. The logical result of such an interpretation of the Court's power of revision would lead, however, to such absurdities that it is clear that the premises on which the conclusion is founded are not sound. It would follow, for example, that if an accused person, in order to forestall a probable reference for enhancement of punishment, puts in a criminal revision petition, with grounds so obviously and in ten tionally untenable that it is dismissed in limine the District Magistrate would be precluded from making a reference at all. Again if one convicted person out of two put in a criminal revision petition so unsupportable that it was dismissed in limine that would preclude the other from putting in a criminal revision petition in his turn, however good his grounds for revision might be. Other anomalous results will readily occur to anyone.

13. No Court, then, can reasonably accept the principle that once it has passed any sort of order in criminal revision, it is precluded from entertaining any further revision petition or reference in the same case, or even from proceeding suo motu. I cannot subscribe to the proposition that when a Court has refused to allow as adequate certain reasons put forward by a party for interference in revision, it has thereby endorsed the correctness, legality and propriety of the finding, sentence or order under revision beyond all further possibility of question. The practice has grown up in this Presidency, and is now well-established, of receiving petitions as methods of setting the Court in motion to exercise its powers of criminal revision, and the Court in dealing with these, is as a rule dealing only with the grounds put forward in the petition and the party who puts them forward. I cannot see why any order so passed on such a petition should preclude any other party to the case from putting in a fresh petition for the purpose of moving the Court to consider a fresh aspect of the case not already put before it. The Court would, no doubt, refuse to listen to a fresh revision petition put in by a party who had already put in a revision petition and obtained orders thereon, on the salutary principle that a party must put forward all his grounds of attack at once.

14. Reference may be made by way of analogy to the Court's power in Criminal appeal. No one could contend that a decision on the appeal petition of one convicted party would preclude the Court from hearing the appeal petition of another party convicted in the same case. The true principle of differentiation is not that in appeal each party has the right of audience, while in revision he has not. It is that the Court is dealing at the time only with the particular matter brought to its notice by a party or specifically raised by itself. The reason why, once a Jail appeal by a party has been disposed of, no fresh appeal by that party can be entertained rests, not on the ground that a Court cannot entertain more than one-appeal against the same conviction, but on the ground that a party must be deemed to have put forward at one time all his grounds of attack on the conviction, and, therefore, they have all been disposed of by the decision on his first appeal. One cannot deduce therefrom any proposition-that a party must be deemed to have put forward in his petition all other possible grounds of attack by other parties on the conviction or sentence.

15. The Court cannot, of course, decide again what it has decided once, unless there is a very specific legal authority enabling it to do so. Ordinarily therefore this Bench would not decide over again what has been decided by this Court in Cr.R.C. No. 561 of 1923, and would not permit the accused to raise again the grounds held in that order to be inadequate to justify revision of his conviction. As to Section 439(6) it should be read as giving an accused person, when called upon to-show cause against enhancement of sentence, the right to re-agitate matters already raised by him, and as giving this Bench power, if it thinks fit to bold that these or other grounds are, notwithstanding its previous order, adequate grounds-for interfering with the conviction, I prefer to say nothing' at present.

16. I am of opinion then that the order in. Cr.R.C. No. 561 of 1923 is no bar to our hearing the Public Prosecutor on the matter of the enhancement of sentence. The accused's Counsel does not on the merits here urge any grounds raised by accused in his previous criminal revision petition.

17. On the matter of enhancement of sentence, I agree with the order proposed by my learned brother.

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