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The State Vs. Haridas Mundra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 650 of 1967
Judge
Reported inAIR1970Cal485,1974CriLJ1341,74CWN847
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 404, 411A, 435 and 561A
AppellantThe State
RespondentHaridas Mundra and anr.
Appellant AdvocateSubimal Roy, ;Bejoy Bhose and ;Bolin Bose, Advs.
Respondent AdvocateN.C. Banerjee, Adv.
Cases ReferredU. J. S. Chopra v. State of Bombay
Excerpt:
- s.k. mukherjea, j.1. the question which arises for determination in this case is whether the high court in its revisional jurisdiction is competent to interfere with an order passed by a judge of the high court in the exercise or its original criminal jurisdiction. if it is, a further question arises whether in the facts of this case, the order of the learned judge discharging the accused from his bail bond should be set aside.2. the accused haridas mundhra was the chairman of the board of directors of richardson and cruddas ltd., and the managing director of its managing agents s. b. industrial (private) ltd. he was being tried in the high court sessions on three counts of offences, under section 418, section 465 read with section 471, and section 477a of the indian penal code. it was.....
Judgment:

S.K. Mukherjea, J.

1. The question which arises for determination in this case is whether the High Court in its revisional jurisdiction is competent to interfere with an order passed by a Judge of the High Court in the exercise or its original criminal jurisdiction. If it is, a further question arises whether in the facts of this case, the order of the learned Judge discharging the accused from his bail bond should be set aside.

2. The accused Haridas Mundhra was the Chairman of the Board of Directors of Richardson and Cruddas Ltd., and the managing director of its Managing Agents S. B. Industrial (Private) Ltd. He was being tried in the High Court Sessions on three counts of offences, under Section 418, Section 465 read with Section 471, and Section 477A of the Indian Penal Code. It was alleged that as a director of Richardson and Cruddas Ltd. and as the managing director of Section B. Industrial Development Company (Private) Ltd., he cheated Richardson and Cruddas Ltd., in the sum of Rupees 10,60,900/- by dishonestly using two forged bills of Indian Machine Tools Company Ltd., a fictitious company, as genuine and by abetting the making of false entries in certain books of accounts of the said Richardson and Cruddas Ltd., as described in the second and third counts of offence with the knowledge that he was thereby likely to cause wrongful loss to the said company whose interest in the transaction to which the cheating relates he was bound in law to protect.

3. The second count of offence alleged that in his aforesaid capacities the accused used as genuine those forged bills for Rupees 4,12,000/- and Rs. 6,48,900/- respectively which he knew or had reason to believe, at the time ho used them, to be forged documents.

4. The third count of offence alleged that the accused in order to cover up the offences mentioned in the first and second counts abetted the making of aforesaid false credit entries in the accounts of the managing agents in the general ledger and corresponding entries in the purchase journal of Richardson and Cruddas Ltd., in respect of those purported payments made by the said managing agents to the said fictitious company against the said forced bills.

5. It transpired that the Life Insurance Corporation of India, a shareholder of Richardson and Cruddas Ltd. moved the High Court in its company jurisdiction under Sections 397 and 398 of the Companies Act in respect of the affairs of the company. On that application a special officer was appointed by the Court to perform certain administrative duties. The Special Officer engaged Messrs. Fergusson & Co., a firm of auditors, to audit the accounts of Richardson & Cruddas Ltd. They reported that certain offences had been committed by the directors of the company in respect of some documents. Relying on the Audit Report, the Special Officer obtained leave from the learned Company Judge to make complaint to the police. The police made investigation and submitted a charge-sheet against the accused to the Chief Presidency Magistrate for enquiry under Section 207-A of the Criminal Procedure Code. The Presidency Magistrate, after an enquiry, committed the case to the High Court Sessions. The accused pleaded not guilty to the charge.

6. S. N. Bagchi, J., in course of the trial, held that in the facts of the case, Clause (c) of Sub-clause (1) of Section 195 of the Criminal Procedure Code constituted a bar to the trial of the accused on the charge in respect of all the three counts of offences having regard to the fact that the Company Court before which the proceedings under Sections 397 and 398 of the Companies Act were pending had not made any complaint. In that view of the matter, the learned Judge found that the prosecution of the accused was bad in law, the committal was a nullity and he had no jurisdiction to proceed with the trial. He, therefore, discharged the accused from his bail bond.

7. It is not in dispute that no appeal lies from the order made by the learned Judge to an appellate Bench of the High Court The State, therefore, came up on revision praying that the order of Bagchi J., be set aside and the accused be tried according to law. The case appeared on the list of Amaresh Roy and A. N. Chakrabarti, JJ., who issued a Rule. The learned Judges were of opinion that the matter involved an important question of jurisdiction and reported the case to the learned Chief Justice for being heard by a larger Bench. Accordingly, the present Bench has been constituted to hear the case.

8. The preliminary question raised before us is a question of jurisdiction. Can the High Court revise an order passed by a Judge of the High Court in a Sessions trial The relevant statutory provisions are to be found in Sections 435 and 439 of the Code of Criminal Procedure; and behind the Code looms large the unseen presence of the Letters Patent of 1865 by which the High Court was constituted and invested with original, appellate and revisional jurisdiction in criminal matters.

9. Under Sub-section (1) of Section 435 the High Court or any Sessions Judge or District Magistrate or any Sub-divisional Magistrate empowered by the State Government in that 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 any such inferior Court.

10. Sub-section (1) of Section 439 provides that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338 and may enhance the sentence.

11. Section 17 of the Code of Criminal Procedure provides that all Magistrates appointed under Section 15, shall be subordinate to the District Magistrate and every Magistrate and every Bench exercising power in a sub-division shall also be subordinate to the sub-divisional Magistrate.

12. Is the High Court in exercise of its original criminal jurisdiction an 'inferior criminal court' within the meaning of Section 435 If it is, revision will lie.

13. It is necessary at this stage to allude to the legislative history of the expression 'inferior criminal court' in Section 435. Section 435 of the present Code which re-enacted Section 435 of the Code of 1882 corresponds to Section 295 of the Code of 1872. In Section 293 the words used were 'any Court subordinate to such Court or Magistrate'. In the Code of 1882 those words were substituted by the words 'any inferior criminal court'.

14. The term 'inferior criminal court' had to be construed by a Divisional Bench of this Court in Nobin Kristo Mookerjee v. Russick Lall Laha, (1884) ILR 10 Cal 268. A Magistrate disposed or a criminal charge by an order discharging the accused person. An application was made to the District Magistrate. The District Magistrate proceeded under Section 437 of the Code of Criminal Procedure and directed a further enquiry. It was contended before the High Court that the order of the District Magistrate was bad because the order of discharge having been made by a First Class Magistrate, the District Magistrate had, on a proper construction of Section 435 of the Code, no jurisdiction to call for the record and, therefore, no jurisdiction under Section 437 to direct a further enquiry. McDonell J. referred to substitution of the words 'any inferior criminal Court' in the Code of 1882 and said :

'It appears to us unreasonable to suppose that this new expression has been substituted without any definite object; and the conclusion to which we are ultimately led is this; that the term 'inferior criminal Court' must be construed to mean 'judicially inferior' that is to say, a Court over which the Court or Magistrate proceeding under Section 435 of the Code has appellate jurisdiction.'

It was pointed out that under Sections 408 and 515 a Magistrate of the First Class was in certain matters subject to the appellate jurisdiction of the Magistrate of the district. The learned Judge observed:--

'Undoubtedly, there is much weight in this argument, which we have carefully considered. It appears to us, however, that a construction can be put upon Section 435 which will in no wise be contradicted by the existence of the appellate jurisdiction given to the Magistrate of the district over First Class Magistrates by Sections 400 and 515. We think that the words 'inferior criminal court' in Section 435 must be construed to mean inferior, so far as regards the particular matter in respect of which the superior Court is asked to exercise its revisional jurisdiction'.

15. It is clear that the Judges took the view that although the Magistrate was subordinate to the District Magistrate, he was not an inferior criminal court by reason of his subordination, for had not the legislature, so they thought, deliberately omitted in the present Code the words 'any Court subordinate to such Court'. They found that although the Magistrate was subject to the appellate jurisdiction of District Magistrate in certain matters and therefore was an inferior court in respect of those matters, the particular matters in respect of which the District Magistrate had exercised his revisional jurisdiction were matters in which the Magistrate was not his inferior. On the ground the order of the. District Magistrate was set aside.

16. The decision in (1884) ILR 10 Cal 268 came up for consideration before a Full Bench of this Court in Opendra Nath Ghose v. Dukhini Bewa, (1886) ILR 12 Cal 473. The question raised was whether a Magistrate of the First Class is a Criminal Court inferior to the District Magistrate. In course of his judgment Garth, C. J., observed:

'There can be no question but that all subordinates are inferior to the authority to which they are subordinate although inferiors are not necessarily subordinates. So, within the territorial jurisdiction of a High Court, all other courts are inferior to it: in a Sessions division the Sessions Court is superior to all other local Courts, and all such other Courts are inferior to it; and in a district all other Magistrates are by Section 17 of the Code subordinates to the Magistrate of the district, and consequently inferior to him: an inferior as much for the purpose of Section 435 as in any other respect.'

The Full Bench agreed with the reason given by the Allahabad High Court in Queen Empress v. Laskari, (1885) ILR 7 All 853 (FB) for substitution of the words 'inferior criminal court' in Section 435 of the present Code, that it was intended to meet the decisions that a District Magistrate is not subordinate to the Sessions Judge, and to provide, that nevertheless, the revisional authority of the latter over the former should remain unquestionable. In that view of the matter the Full Bench held that a Magistrate of a district is competent under Section 435 of the Criminal Procedure Code to call for and deal with the record of any proceedings before any Magistrate of whatever class in his own district.

17. There is no doubt that the decision in (1884) ILR 10 Cal 268 was overruled by the Full Bench. It is, however, necessary to examine how far the Full Bench disagreed with the propositions of law expressed in the earlier decision. The Full Bench did not pronounce on the validity of the test that an inferior criminal court means a court judicially inferior, nor did it concern itself with the qualifying proposition that an inferior criminal court means a court inferior so far as regards the particular matter in respect of which the superior Court is asked to exercise its revisional jurisdiction. It agreed that 'inferior' is not to be equated with 'subordinate' but held that a Court which is subordinate to another is also inferior to it, a view which was rejected in the earlier case. The Full Bench made it clear that subordination is a test of inferiority.

18. In these cases no question arose whether any Judge or Bench of the High Court is a Court inferior to another Bench of the High Court or to the High Court itself. That question arose in the Full Bench case Re. F. W. Gibbons, (1887) ILR 14 Cal 42 (FB). The petitioner had been tried before a Sessions Judge and acquitted by the jury. The [fudge differed from the verdict and referred the case to the High Court under Section 307. A Division Bench of the High Court reversed the verdict of acquittal and convicted the petitioner. The petitioner applied under Section 435 for revision of the judgment and sentence. A Full Bench heard the application. In the earlier part of his judgment Petheram, C. J., pointed out that

'every Division Bench constitutes a Court in itself for the purpose of its judgment, and every judgment of a Division Bench is a judgment of the Court.'

On the question of revision the learned Chief Justice alluded to Section 439 and said:--

'in my opinion, the first four lines of the Section show beyond all possibility of doubt, that the record which is referred to in that Section is the record of some Court other than that of the High Court, because it is obvious that what is meant is the record of the case which has been called up and brought before the High Court and not the record of the case which is in the High Court itself, and which it therefore has in its possession and has no need to call for.'

In that view of the matter, the Full. Bench held that neither the High Court itself nor any Bench of it has any power to revise a decision of a Division Bench of a High Court in a criminal case. It is true that the question which arose before a Full Bench was whether the High Court had any revisional power under Section 439 to interfere with the judgment of a Division Bench in a Criminal case and not whether the High Court could revise the judgment or order made by a Judge of the High Court in exercise of its original criminal jurisdiction, but the ratio of the Full Bench decision, in our opinion, is equally applicable to the latter case, and has been so applied in subsequent decisions.

19. In Hale v. Emperor, (1909) 9 Cri LJ S06 decided by the Chief Court of the Punjab, it was held that neither a Division Bench nor a Full Bench of the Chief Court has power, to revise the judgment of a Single Judge of that Court exercising original Criminal jurisdiction. The Court observed:

'The powers of a Single Judge in a matter with which he has jurisdiction to deal are the powers of the Court, and cannot be in any way controlled by a Bench or Full Bench of the Court. As no appeal lies, so no revision lies. Both procedures imply subordination or inferiority which does not exist.'

The learned Judges relied on the dictum of Petheram, C. J., in Re F. W. Gibbons, (1887) ILR 14 Cal 42 (FB) and said:

'The occurrence of the words 'inferior criminal Court' in Section 435 of the Criminal Procedure Code and their omission in Section 439 of the Criminal Procedure Code is due to the fact that all other Courts are inferior to the High Court and the word is therefore unnecessary in Section 439 of the Criminal Procedure Code; it does not imply that one branch of the High Court is to revise the proceedings of another branch.'

20. In a later case, Press v. Emperor, (1909) 9 Cri LJ 378 the Chief Court agreed with the views expressed in the earlier case.

21. All these cases were decided before Section 411-A was brought into the Criminal Procedure Code by the Amending Act of 1943 which conferred a restricted power on the High Court to hear appeals from sentences and orders passed by the High Court in exercise of its original criminal jurisdiction.

22. In Krishnaji Vithal v. Emperor, AIR 1949 Bom 29, a case decided after the introduction of Section 411-A, a Division Bench of the Bombay High Court consisting of Chagla, C. J. and Bhagwati, J., held that the High Court in Sessions, exercising original criminal jurisdiction, is inferior to the High Court on its Appellate Side, because the former is judicially inferior to the latter. The learned Chief Justice relied on (1884) ILR 10 Cal 268 and said that a Court is inferior to another Court when an appeal lies from the former to the latter. He conceded that the High Court acting in its original criminal jurisdiction is not a Court subordinate to the Appellate Side of the High Court, but the expression used in Section 435 is not 'subordinate' but 'inferior';

'if one turns to Section 6, the first class of criminal Courts are Courts of Session and Courts of Session are undoubtedly judicially inferior to the High Court. The result of amendment of Act XXVI of 1943 is practically to put the High Court acting in its original criminal jurisdiction, direct in the same category as the Court of Session, or, perhaps a different criminal court was constituted which was the High Court acting in its original criminal jurisdiction, and an appeal was permitted from that Court to the High Court, just as appeals are permitted from the different Courts enumerated in Section 6 of the Criminal Procedure Code.'

23. The learned Judges appear to have thought that by introduction of Section 411-A, the Sessions Court of the High Court became a criminal court inferior to the High Court.' They appreciated that their judgment could not be supported except on the basis that the Sessions Court of the High Court is a Court separate from the High Court spoken of in Section 435. They also felt that in order to attract Sections 435 and 439 of the Criminal Procedure Code to an order made by the High Court in exercise of its original criminal jurisdiction it is necessary that the High Court, in its exercise of that jurisdiction should be treated as a new Court or must come under one of the existing categories of criminal courts specified in Section 6. Chagla, C. J., was, therefore, constrained to hold though in guarded language and not without hesitation that perhaps a new Court was constituted by operation of Section 411-A or the High Court in the exercise of its original criminal jurisdiction became practically a Court of Session.

24. In Supdt. and Remembrancer of Legal Affairs, West Bengal v, Osmond, 50 Cri LJ 548 = (AIR 1949 Cal 301), an appeal was preferred by the State for enhancement of a sentence passed at a Sessions trial held on the Original Side of the High Court. Mr. P. B, Mukharji, the learned Junior Standing Counsel, as he then was, conceded that no appeal lies under Section 411-A for enhancement of a sentence. P. B. Chakravartti, J., who delivered the judgment of the Court observed in course of his judgment:--

'It is somewhat curious that the legislature, in introducing Section 411-A into the Code of Criminal Procedure and providing for appeal from Sessions trials held by the High Court, should have omitted to make some provision corresponding to Section 439 of the Code under which either the Crown or a private person in certain circumstances may move the High Court in revision against an inadequate sentence. The fact, however, remains that no such provision has been made with respect to convictions at Sessions trials held by High Court, and, as the Code now stands, there cannot possibly be any appeal or application for revision for enhancement of a sentence passed at such a trial, however, inadequate such sentence may be.'

The judgment of Chagla, C. J., in AIR 1949 Bom 29, was not placed before the learned Judges, may be because the judgment had not been reported, nor was any argument addressed on the existence or absence of the High Court's power of revision Over an Order of a Judge of the High Court exercising original criminal jurisdiction.

25. In Parbati Devi v. State, : AIR1952Cal835 a Division Bench of the High Court came to the conclusion that the evidence on record was act adequate to substantiate a charge against the appellant under Section 120B read with Section 366 of the Penal Code. Thereupon the Court issued a rule suo motu on the State to show cause why the conviction of the other person found guilty of conspiracy, who did not prefer an appeal from the order of conviction, should not be set aside, as it was impossible to substantiate a charge of conspiracy against him alone. It was argued on behalf of the State that the Court bad no jurisdiction to issue any rule in respect of a conviction and sentence by a Judge of the High Court in Sessions. In course of his judgment R. P. Mookerjee, J., said :

'Mention of Section 411 of the Criminal Procedure Code in Section 423 of that Code unmistakably indicates that this Court, while hearing an appeal from the conviction of an accused by the Court of Session in the Original Side of this Court has in relation to the latter Court powers and jurisdiction in certain respects over, the latter Court which a superior Court has over a subordinate Court. This is so though the relationship between the two branches of this Court is not in all particulars the relationship of superior and (sic) tribunal.'

26. As regards the case of AIR 1949 Bom 29, the learned Judge said:

'We do not think that the interpretation put by the Bombay High Court on the observations in Nobin Kristo's case, (1884) ILR 10 Cal 268 was quite apposite. The test which was applied in that case may not be strictly speaking attracted in the case of the High Court exercising jurisdiction over the Court of Session in the Original Side of this Court. We do not think that the very observations of the Bombay High Court may be accepted.

It is sufficient for our present purpose that under the specific provisions or the Code of Criminal Procedure, certain jurisdiction is given to the Bench dealing with criminal matters, and particularly when an appeal under Section 411-A is being heard to exercise jurisdiction under the revisionary powers. There are certain anomalies, no doubt, as have been pointed out by the learned standing counsel.

Even if there be any doubt about the extent of the jurisdiction of this Court under the revisionary powers, there is no doubt that under the inherent jurisdiction of the Court it has the power to pass a proper order when a manifest injustice is being done. Therefore, even if there had been any doubt as to the applicability of Section 135 of the Criminal Procedure Code, we can have no doubt whatsoever that the Court has, in the absence of any direct provisions in the Code, the inherent power to adopt a procedure to secure the ends of justice.'

27. It appears from the judgment that the learned Judges were not very sure whether they could exercise their powers under Section 439 of the Criminal Procedure Code. That is why they made the order, in the alternative, in the exercise of the inherent power of Court. R. P. Mookerjee, J., did not expressly hold that there is any revisional Jurisdiction in the Appellate Court. In any event, the learned Judges did not agree with the interpretation put by the Bombay Court on the observations made in the case of (1884) ILR 10 Cal 288. Be that as it may, all that the case decided was that when an appeal under Section 411-A is heard by the High Court it can exercise jurisdiction under its revisional powers, or if it cannot, it can make an order in the appeal in exercise of its inherent powers. It did not decide that in the absence of any appeal the Court can exercise revisional jurisdiction under Section 439 in respect of an order made by a Judge of the High Court in Sessions. It is also clear that in so far as the learned Judge suggested that an appellate Bench of tie High Court has revisional jurisdiction over a Single Judge of the High Court he did so haltingly and with considerable mental reservation.

28. The question whether revision lies from an order of a Judge of the High Court exercising original criminal jurisdiction to a Division Bench of the High Court came up for consideration before the Madras High Court in In Re. Nookiah, : AIR1954Mad918 . Govinda Menon and Rajagopalan, JJ., expressly disagreed with the decision or the Bombay High Court in AIR 1949 Born 29 and held that the High Court in Sessions is not a Court inferior to the High Court on the Appellate Side and that Sections 484, 485 and 439 of the Criminal Procedure Code do not enable the Appellate Side of the High Court to interfere with any non-appealable order of a Judge of the High Court presiding over the criminal Sessions. They held that by Section 411-A of the Criminal Procedure Code, no inferior Court came into existence; that there is one Court, namely, the High Court; the High Court functions m separate Divisions, an Appellate Division and an original Division and an appeal lies from the one to the other. The two constitute one and the same Court without any inferiority or superiority. They relied on the case of In Re. Nathaniel, AIR 1949 Mad 481 (FB), where the learned Chief Justice rejected the argument that by Section 411-A of the Criminal Procedure Code a new Court was constituted and on Kalyanji v. Ram Deen Lala, AIR 1925 Mad 609 where it was held by a Division Bench that the Original Side and the Appellate Side of the High Court constitute one undivided Court and rejected the contrary contention. The learned Judges found that the Criminal Procedure Code treats revisional jurisdiction as different from and independent of appellate jurisdiction and appellate jurisdiction does not necessarily carry with it revisional jurisdiction also. They alluded to Act No. 26 of 1943 by which Section 411-A was introduced into the Criminal Procedure Code and commented on the fact that though by that statute provision was made for appeal no similar provision was made for revision. They drew sustenance from Kunhammad Haji v. Emperor, AIR 1923 Mad 426 where Oldfield, J., held that notwithstanding the reference in Section 439 to Section 273 which deals with a question of procedure peculiar to trials in the High Court, the High Court is not competent to revise the judgment of one or more of its own Judges. They relied strongly on the observations of Petheram, C. J., in In Re. F. W. Gibbons, (1887) ILR 14 Cal 42 (FB), that the language of the first four lines of Section 439 clearly indicates that the record which is referred to in that section is a record of some Court other than the High Court. For all these reasons they held that no revision lies to a Bench of the High Court from an order of a Judge of the High Court made in the exercise or its original criminal jurisdiction.

29. The terms 'superior' and 'inferior' have been applied to Courts of law in different senses on different occasions, as was pointed out by the Court of Appeal in R. v. St. Edumandsbury and Ipsurich Diocese, Ex parte White, (1947) 2 All ER 170. An inferior Court can be restrained from exceeding its jurisdiction by a writ of prohibition. No writ of prohibition lies against a superior Court. In Peacock v. Bell, (1867) 85 ER 81, a case cited in Mayor and Aldermen of the City of London v. Cox, (1867) 2 HL 239, decided by the House of Lords, it was said :

'The rule of jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged.'

30. In England, the superior courts came into existence in the course of evolution of judicial institutions. Blackstone in his Commentaries says:--

'A superior Court, in its primary meaning connotes a Court having inherent jurisdiction to administer justice according to law, as and being a part of, or descended from, and as exercising part of the power of, the Aula Regia, established by William the First which had universal jurisdiction in all matters of right and wrong throughout the kingdom, and over which, in early days, the King presided in person.' -- 3 Blackstone's Commentaries 37-60, Stroud's Judicial Dictionary, Third Edition, Vol. 4, page 2934.

31. In Halsbury's Laws of England, Third Edition Vol. 9, page 348, para 817, it is stated that the Court of Appeal, the High Court, the Court of Criminal Appeal and the Court Martial Appeal Court are superior Courts in all senses of the term.

32. The Indian High Courts did not come into existence in the course of historical evolution as the High Court in England did. They were created by Acts of Parliament and Royal Charters. No doubt, appeal lay from the High Court to the Judicial Committee of the Privy Council. Nevertheless, the High Courts were treated as superior Courts for all purposes. No writ of prohibition ran against the High Courts, Indeed the writ was unknown. On the contrary, under Section 45 of the Specific Relief Act the Chartered High Courts could make orders in the nature of mandamus which in England could be made only by the High Court, a superior Court. Moreover, the Indian High Courts were, in the technical sense, Courts of universal jurisdiction within their local limits. The Code of Criminal Procedure of 1898 and its predecessor, the Code of 1882 were drafted by men trained in the English legal tradition and it is not unreasonable to presume that they did not think of or intend to refer to the High Court or any Division of the High Court as an 'inferior court' in species. Therefore, the words 'any inferior criminal court' should not be construed to include any Division of the High Court unless there are compelling reasons for doing so.

33. Mr. Subimal C. Roy, learned counsel appearing on behalf of the State, relied on the dictionary meanings of the term 'inferior'.

34. In the Oxford English Dictionary the meanings assigned to 'inferior' are: lower in position; situated below or farther down; lower in degree, rank, importance, quality or other respect; lesser, subordinate.

35. The term 'inferior' necessarily implies a comparison. Nevertheless, as is pointed in the Oxford English Dictionary, the term is sometimes used in a positive or absolute sense, as for example, in the phrase 'the country with which he shows so inferior an acquaintance.'

36. One of the dictionary meanings of 'inferior' is 'subordinate'. It is not in dispute that no Judge or Bench of the High Court is subordinate to the High Court. Therefore, if 'inferior' means 'subordinate', the Sessions Court of the High Court is not a Court inferior to the High Court. It has also been held that if an appeal is preferred from an original Court of the High Court to an appellate Court of the High Court the former is the Court immediately below the latter. Therefore, if the meaning 'situated below' is assigned to 'inferior' the Sessions Court of the High Court is a Court inferior to the Appellate Court of the High Court. Then again if the word 'inferior' is taken in a positive and absolute sense 'any inferior criminal Court' may mean any criminal court inferior per se. In that context it may very well be argued that unless the High Court in exercise of its original criminal jurisdiction is an inferior criminal court in an absolute sense, no question of relative inferiority can arise notwithstanding the fact that appeal lies from its orders or sentences to an appellate Bench of the High Court under Section 411-A of the Code of Criminal Procedure. For all these reasons, the dictionary meanings of 'inferior' are not a safe guide for construction of the term 'inferior criminal court' in Section 435.

37. Mr. Roy relied on the decision of the Supreme Court in Shankar v. Krishnaji, : [1970]1SCR322 . In that case the Supreme Court in agreement with the observations of the Privy Council in Raja of Ramnad v. Kamid Rowthen, 53 Ind App 74 = (AIR 1926 PC 22), of Mookerjee, J., in Secy. of State for India in Council v. British India Steam Navigation Co., (1911) 13 Cal LJ 90, of Subramaniya Ayyar, J., in Chappan v. Moidin, (1899) ILR 22 Mad 68 and of Lord Westbury in Attorney General v. Sillem, (1864) 10 HLC 704, expressed the view that the revisional jurisdiction is a part of the general appellate jurisdiction. In paragraph 6 of the judgment, the Court observed:--

'Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.'

38. It may be conceded that in a larger sense revisional jurisdiction is a part of the general appellate jurisdiction but does it mean that merely because appeal lies from one Court to the other in respect of appellate orders revision will also lie in respect of non-appealable orders There is no general right of revision as there is no general right of appeal. Revision like appeal is a creature of statute and in the absence of an enabling statutory provision neither revision nor appeal will lie. In : [1970]1SCR322 the Supreme Court observed:

'two things are required to constitute appellate jurisdiction; the existence of the relation of superior and inferior court; and the power on the part of the former to review decisions of the latter.'

To enable a Court to interfere with an order in appeal or in revision, it must be not only superior Court but also a court to which appeal or revision lies. Appeal or revision will not lie to Court merely because it is a superior court. Power has to be expressly given to the superior court to interfere in appeal or in revision.

39. Mr. Roy submitted that as revisional Jurisdiction is a part of the appellate jurisdiction, the existence of appellate powers in the High Court predicates the existence of revisional powers also.

40. On behalf of the respondent Mr. Nalin Banerjee argued that although revisional jurisdiction is a part of the general appellate jurisdiction, appeal and revision have been dealt with separately in the Letters Patent and in the Criminal Procedure Code and, therefore, it will not be proper to call the appellate powers of the High Court in aid of revisional powers,

41. In our opinion, Mr. Banerjee is right in his contention. It is not without significance that in the Government of India Act 1935, in the Letters Patent of 1865 and in the Criminal Procedure Code, appeal and revision have been dealt with separately. In Sub-section (2) of Section 224 of the Government of India Act, 1935, it is provided that

'nothing in the section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.'

Similarly, in the Letters Patent the appellate and the revisional powers of the High Court have been treated separately as two different jurisdictions. Clause 15 of the Letters Patent provides that an appeal shall lie to the High Court from the judgment of one Judge of the High Court not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, and not being an order made in the exercise of revisional jurisdiction. Clause 22 of the Letters Patent confers on the High Court ordinary criminal jurisdiction. Clause 25 prohibits appeal to the High Court from any sentence or order passed or made in any criminal trial before the Courts of original criminal jurisdiction which may be constituted by one or more Judges of the High Court. Clause 27 constitutes the High Court a Court of Appeal from the Criminal Courts of Bengal Division of the Presidency of Fort William and from all other Courts subject to its superintendence. Clause 28 confers revisional powers on the High Court in specific terms. It provides:--

'The said High Court of Judicature at Fort William in Bengal shall be a Court of Reference and Revision from the Criminal Courts subject to its appellate jurisdiction, and shall have power to hear and determine all such cases referred to it by the Sessions Judges or by any other officers now authorised to refer cases to the said High Court, and to revise all such cases tried by any officer or Court possessing criminal jurisdiction as are now subject to reference to, or revision by, the said High Court.'

42. It is clear that by Clause 28, the High Court was constituted a Court of Revision from criminal courts subject to its appellate jurisdiction. As under Clause 25 appeal from any order or sentence of the High Court in the exercise of ordinary criminal Jurisdiction was barred, the High Court did not become a Court of Criminal Revision in respect of orders, judgments or sentences passed by the High Court in exercise of its original criminal jurisdiction. Moreover, by being constituted a Court of Revision alone under the first part of Clause 28, the High Court did not acquire power to revise cases from the Criminal Courts subject to its appellate jurisdiction. The power had to be given by the Letters Patent or by statute. That power was given by the latter part of Clause 28. It conferred on the High Court as a Court of Revision power and jurisdiction to hear and determine only cases tried by any Officer or Court possessing criminal jurisdiction as were then subject to revision by the High Court. The fact that subsequently the High Court in the exercise of its original criminal jurisdiction became subject to the Criminal appellate jurisdiction of the High Court in certain respects under Section 411-A, did not change the position because even then the latter part of Clause 28 was not attracted to the High Court in the exercise of its original criminal jurisdiction.

43. Mr. Roy pointed out that although under Clause 25 there is a prohibition against appeal there is no such bar against revision. The reason is clear. Clause 27 conferred on the High Court jurisdiction to hear appeals from all Criminal Courts of Bengal. That is why express provision had to be made to prohibit appeals. But as revisional jurisdiction of the High Court was restricted to Courts subject to its appellate jurisdiction, no provision was necessary to bar revision.

44. In the scheme 6f the Criminal Procedure Code appeals and revisions are also treated separately. Chapter XXXI is concerned with appeals and Chapter XXXII with Reference and Revision: In Section 4 as it stood before it was amended by Act XVII of 1949, the High Court was defined to mean the highest Court of criminal appeal or revision for any local area. A distinction was therefore made between appeal and revision.

45. As pointed out by Rajagopalan, J., in In Re. Nookiah, : AIR1954Mad918 there are many instances in the Code where a Court has appellate but no revisional jurisdiction.

'The High Court exercises no appellate jurisdiction over Magistrate other than Presidency Magistrates but has revisional jurisdiction over Magistrates. The District Magistrate does not exercise appellate jurisdiction over First Class Magistrates but as they are subordinate to him he exercises revisional jurisdiction.

A Sub-divisional Magistrate may have appellate jurisdiction over the Magistrate within his sub-division, but it is. only a limited revisional jurisdiction that is conferred on the Sub-divisional Magistrate and even then only if he is specially empowered by the Government to exercise powers under Section 435 of the Criminal Procedure Code.'

The learned Judge rightly observed that

'appellate jurisdiction with a total absence of revisional jurisdiction does not appear to be unintelligible or inconsistent with the scheme of the Criminal Procedure Code.'

46. The view that the Sessions Court of the High Court was not an inferior Criminal Court prior to the introduction of Section 411-A but became one subsequently is not tenable.

47. Under Clauses 25 and 26 of the Letters Patent jurisdiction was vested in the High Court to set aside any judgment or alter any sentence passed by the High Court in exercise of its original criminal jurisdiction on a point or points of law reserved by the original Court for the opinion of the High Court or on being so certified by the Advocate-General.

48. Under Section 449 in Chapter XXXIII of the Code which dealt with procedure in cases concerning European and British subjects, appeal lay to the High Court in cases tried by jury in the High Court Sessions. In so far as the High Court exercised jurisdiction as a Court of Reference and could set aside a judgment or alter a sentence of the High Court passed in exercise of its original criminal jurisdiction on a point or points of law in certain circumstances, the Sessions Court of the High Court was judicially inferior to the Reference Court of the High Court; and in so far as under Chapter XXXIII of the Criminal Procedure Code the appellate Court of the High Court was invested with jurisdiction to hear appeals from the High Court Sessions, the latter was also judicially inferior to the former.

49. Section 411-A did not change the nature of the relation between the appellate court and the Sessions Court of the High Court; it merely enlarged the appellate jurisdiction of the High Court over the High Court in Sessions.

50. If judicial inferiority to another court in the context of appeal makes a Court an inferior court in all contexts it cannot be said that the position of the High Court Sessions vis-a-vis the High Court as a Court of criminal revision was altered by introduction of Section 411-A of the Code. If it was an inferior court, it remains so; if it was not, it did not become one by reason of Section 411-A.

51. When Section 411-A was introduced there was a consensus of judicial opinion that no revision lay to the High Court from an order of the Sessions Court of the High Court. If it was intended to confer any power on the High Court to revise orders, judgment or sentences of the Sessions Court of the High Court it is reasonable to presume that the object would have been made clear in the Statement of Objects and Reasons in the Bill which was subsequently enacted as Act No. XLVI of 1943. It is equally reasonable to presume that if that were the intention of the legislature, the Act would have made express provision for the exercise of revisional powers. That no such intention was expressed in the Statement of Objects and Reasons in the Bill and no such provision was made in the Act indicate that the Legislature did not intend to confer on the High Court those revisional powers.

52. On the question of construction of the word 'inferior' used in relation to courts, reference may be made to certain cognate expressions, the most common of which is 'subordinate'. The term 'subordinate' is used in Section 115 of the Code of Civil Procedure. It is also used in the Code of Criminal Procedure, as for example, in Sections 17, 195 and 520. The other expression found in statutes is 'the Court immediately below.' It occurs in Section 110 of the Code of Civil Procedure and in Article 133 of the Constitution of India. The distinction between a subordinate Court' and 'the Court immediately below' was brought out clearly in the judgment of the Supreme Court in Ladli Pershad v. Kamal Distillery Co. Ltd., AIR 1903 SC 1279. The Court observed:

'The words 'Court immediately below' occurring in Article 133 of the Constitution cannot be equated with the words 'court subordinate to' found in Section 115 of the Code of Civil Procedure. A Court subordinate to the High Court is a court subject to the superintendence of the High Court whereas a court immediately below is the Court from whose decision the appeal has been filed.'

It was held that in the context of Article 133(1) of the Constitution, a Single Judge of the High Court is a 'court immediately below' a Bench of the High Court hearing an appeal against his judgment.

53. The High Court in the exercise of its original jurisdiction, civil or criminal, is not subject to the superintendence of the High Court on its Appellate Side and is, therefore, not a Court subordinate to the High Court.

54. Mr. Roy submitted that as an appeal lies from the High Court in Sessions to a Division Bench of the High Court under Section 411-A, the former is the court immediately below the latter. It is perhaps more correct to say that it is only when an appeal has actually been preferred that one becomes a court immediately below the other. Assuming that the Court from which an appeal lies is the Court immediately below or in other words, that the question is one of Jurisdiction, can it be said that if a Court is a court immediately below in the context of appeal, it is necessarily so in the context of revision also If revision lies it will be the Court immediately below. If not, it will not be one in the context of revision. In fact, the words 'court immediately below' merely express a formal relationship which exists between two Courts in respect of a particular lis.

55. Mr. Roy argued that as the Sessions Court of the High Court is the court immediately below a Division Bench of the High Court, the former is judicially inferior to the latter and is, therefore, an inferior criminal court' for the purpose of Section 435. It may be conceded that every Court which has power to vary, set aside, quash or reverse the order of another Court in appeal, in revision, in reference or by a writ, is judicially superior to the latter. That does not mean that a Court which is judicially inferior for the purpose of certain proceedings is judicially inferior for other purposes. The Sessions Court of the High Court is Judicially inferior to the Division Bench because appeal lies from the former to the latter. The right of appeal had to be conferred by Section 411-A but for which the Sessions Court would not have been judicially inferior. If no power has been conferred by statute on the High Court to revise an order made by the High Court in Sessions, the latter cannot be held to be judicially inferior to the former for the purpose of revision.

56. It was submitted that Sections 435 and 439 confer such power. The submission must be accepted if the High Court in Sessions is a criminal court, inferior to the High Court. On the other hand, if it is the High Court, it cannot be inferior to itself. Mr. Roy did not dispute that the High Court in Sessions is the High Court but he argued that nevertheless the Sessions Court of the High Court is a Court by itself to be distinguished from the High Court in the sense spoken of in Section 4 (1) (i). In a sense every Judge or a Bench of the High Court hearing a case is a Court, so that there is more than one Court in the High Court. The Sessions Court of the High Court is a Court. These courts though constituted as separate courts for the sake of convenience and in the interest of administration of justice are all part and parcel of the High Court, nay, they are the High Court itself. Through these courts the High Court, the judicial organ that it is, performs its manifold judicial functions. They are constituted by the Chief Justice under the Rules of the High Court so that the High Court can exercise all its jurisdictions at one and the same time. No court in the High Court is subordinate to the High Court because every court is the High Court itself.

57. If the High Court in Sessions is not the High Court, how can it possibly fit in with the scheme of criminal Courts in Section 6 It is neither a Court of Session nor is it a Magistrate's Court. In the contemplation of Section 6 it can only be the High Court. Section 4 (1) (i) of the Code defines 'High Court' to mean the highest Court of Criminal Appeal for a local area but that definition holds good unless a different intention appears. Unless the High Court in exercise of its original criminal jurisdiction is the High Court it will be a Court not recognised in the hierarchy of Courts in Section 6. In AIR 1949 Bom 29 Chagla, C. J., observed that 'by the introduction of Section 411-A the High Court in Sessions became practically a Court of Session,' The fact remains that where the High Court in exercise of its original criminal jurisdiction is deemed to be a Court of Session, the Code expressly says so. For example, it is provided in Section 198-B that for the purpose of that section the expression 'Court of Session' includes the High Court at Calcutta and Madras in the exercise of their original criminal jurisdiction. Likewise in Section 448 which has now been repealed it was provided that for the purpose of Chapter XXXIII, references to the Sessions Judge should be construed as references to the High Court of judicature at Rangoon.

58. Section 411-A itself indicates that no new Court or Court other than the High Court is contemplated. The marginal note reads: 'Appeal from sentence of High Court.' Clause (a) of Sub-section (1) says that any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may appeal against the conviction to the High Court on any ground which involves a matter of law only; what is, therefore, contemplated is an appeal from the High Court and not from some other Court Under Clause (b) appeal lies against the conviction to the Appellate Court upon the certificate of the Judge who tried the case that it is a fit case for appeal. The Appellate Court is the Division Court of the High Court but it is significant that the original Court from which appeal lies is not spoken of as a Court but as a Judge. The Judge is a Judge of the High Court. Sub-section (2) provides for presentation by the Public Prosecutor of an appeal to the High Court from any order of acquittal passed by the High Court in exercise of its original criminal jurisdiction. The original court as well as the appellate court are described as the High Court. Sub-section (3) provides that an appeal under Section 411-A shall be heard by a Division Court of the High Court. Sub-section (4) is careful to point out that an appeal shall lie to the Supreme Court from any order made on appeal raider Sub-section (1) by a Division Court of the High Court. If the High Court in Sessions were not the High Court in the contemplation of Section 411-A but some other Court which is inferior to the High Court the term 'Division Court of the High Court' need not have been used. It has been used only to distinguish it from the High Court in the exercise of its original criminal jurisdiction. It is not without signifinance that in the Code of Criminal Procedure the High Court in certain contexts clearly and unequivocally means the High Court in the exercise of its original criminal jurisdiction, as for example, in Chapter XVIII and Chapter XXIII. In this connection reference may be usefully made to the case of Emperor v. Girish Chundra Kundu, 34 Cal WN 13 = (AIR 1929 Cal 756) (FB). The case decided that a Judge presiding over the Sessions of the High Court is the High Court and has power under Section 216 of the Code of Criminal Procedure to quash a commitment made to him by a competent Magistrate. Rankin, C. J., observed:

'the internal arrangements of the High Court are dealt with by its rules and the Code does not decide what functions can be exercised by a Single Judge or must be decided by a Division Bench. It deals with the High Court as one and the definitions of High Court are not intended to do more than to point to the Court itself so as to distinguish it from other Courts.'

59. For all these reasons we are unable to agree with the learned Judges of the Bombay High Court who decided the case of Krishnaji Vithal v. Emperor. In our opinion, the High Court in Sessions is the High Court in the contemplation of Section 411-A and of Section 6. It is also not an 'inferior criminal court' in the sense of Section 435 (1) of the Code of Criminal Procedure.

60. An argument was sought to be founded on Sub-section (4) of Section 439 in support of the view that a Bench of the High Court can revise an order of a Judge of the High Court made in the exercise of its original criminal jurisdiction. The argument was disposed of by Mitter, J., in In Re. F. W. Gibbons, (1887) ILR 14 Cal 42 (FB). Subsection (4) of Section 439 provides that nothing in that section applies to an entry made under Section 273 or shall be decided to authorise a High Court to convert a finding of acquittal into one of conviction. Section 273 occurs in Chapter XXIII of the Code of Criminal Procedure which deals with trials before the High Courts and Courts of Session. It provides that in trials before the High Court when it appears to the High Court, at any time before the commencement of the trial of the person charged, that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect and such entry shall have the effect of staying proceedings upon the charge or portion of the charge as the case may be. Mitter, J., pointed out that Sub-section (4) of Section 439 was enacted with an eye to Section 266 which provides that in Chapter XXIII except in Section 307 the High Court means a High Court of Judicature established or to be established under the High Courts Act 1861 and includes the Chief Court of the Punjab and such other Courts as the Governor-General in Council may by notification in the Gazette of India declare to be a High Court for the purpose of that Chapter. The Governor-General therefore may by notification extend the procedure laid down by that Chapter to the trials of cases before any Court subordinate to a High Court. In that event, a subordinate Court may make an entry under Section 273. Sub-section (4) of Section 439 lays down that in that case the High Court although possessing revisional powers over such subordinate Court in all other respects would not have the power of interfering in revision with any order passed by that Court under Section 273.

61. Mr. Roy pointed out that Section 439 enables the High Court to exercise any of the powers conferred on a Court of Appeal by Section 423 and submitted that as in Section 423 reference is made to Section 411-A, the legislature intended to invest the High Court with jurisdiction to revise orders or sentences of the High Court passed in exercise of its original criminal jurisdiction. We do not agree. Section 423 confers certain powers on the appellate Court in disposing of appeals; it does not create any appellate jurisdiction. Powers conferred by Section 423 can be exercised only where there is jurisdiction. Sub-section (1) of Section 439 merely enables the High Court to exercise in revision powers conferred on the Appellate Court by Section 423, where revision lies. Section 423 does not create any revisional jurisdiction any more than it creates any appellate jurisdiction.

62. Mr. Banerjee relied on the case of R. G. Ruia v. State of Bombay, : 1958CriLJ244 where the Supreme Court observed at page 103 of the Report:--

'It is fallacious to read all the words of Section 423 into Section 439 which the latter section does not contemplate. Section 439 only authorizes the High Court in revision to exercise any of the powers conferred by Section 423. It does not further make reference to the cases in which such powers have to be exercised. The latter question does not arise because Section 439 itself makes the sweeping provision that in the case of any proceeding, the High Court may exercise the powers enumerated in Section 423. One has, therefore, to look into Section 423 to find out not the cases in which the High Court can interfere but only the nature of the power that it can exercise in a case in its revisional jurisdiction.'

63. The contention of Mr. Roy must therefore fail.

64. Mr. Roy claimed that even if the High Court cannot interfere under Section 439 of the Code with the order of a Judge of the High Court exercising ordinary criminal jurisdiction it can do so by the exercise of its inherent power which has been preserved by Section 561-A. We are unable to agree. In the present case, the question is one of jurisdiction, not of making an order in valid proceedings to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no inherent power in a Court to assume jurisdiction. Jurisdiction can be conferred only by statute. In : AIR1952Cal835 the Court in exercise of its inherent power in valid proceedings made an order consequential to an order of acquittal. In this case, no inherent power is available to assume and exercise a jurisdiction the Court does not possess.

65. An examination of the relevant provisions of the Code of Criminal Procedure reveals that the Code has not left the question of relative inferiority of criminal' courts to be decided by application of abstract legal principles. The Code has itself provided the key. Under Section 435 only the High Court, a Sessions Judge, a District Magistrate or a Sub-divisional Magistrate 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. After some initial hesitation, it was settled that a court which is subordinate to another court is also inferior to it. All courts situate within the limits of the High Court are subordinate to the High Court and are, therefore, also inferior to it. By virtue of Section 17 all Magistrates appointed under Sections 12, 13 and 14 and all Benches constituted under Section 15 are subordinate to the District Magistrate; they are therefore, inferior to the District Magistrate. Similarly by Sub-section (2) of Section 17 every Magistrate and every Bench exercising powers in a Sub-division is subordinate to the Sub-divisional Magistrate and therefore, inferior to him. There was only one lacuna. The Code did not provide that Magistrates are subordinate to the Sessions Judge or inferior to him. It was, therefore, arguable that the Magistrates were not inferior to the Sessions Judge. At an early stage however it was judicially accepted that Magistrates are inferior to the Sessions Judge. Even then, the legislature thought that the lacuna should be filled up. By the Criminal Procedure Amendment Act 1923 an Explanation was added to Sub-section (1) of Section 435 which provided that all Magistrates whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purpose of that Sub-section and of Section 437. If the legislature intended that the High Court in the exercise of original criminal jurisdiction should be deemed to be a criminal court inferior to the High Court surely provision could have been made for it by adding an Explanation in that behalf. It is unthinkable that the legislature which introduced an express provision that Magistrates are inferior to the Sessions Judge for the purpose of Sub-section (1) of Section 435, in spite of unanimity of judicial opinion that they were, should remain silent over the question of inferiority of the High Court in Sessions to the High Court for the purpose of that Sub-section when there was a consensus of opinion that one was not inferior to the other. The conclusion is inescapable that the legislature entertained no such intention.

66. We now propose to refer to certain observations made by the learned Judges of the Supreme Court in the case of U. J. S. Chopra v. State of Bombay, : 1955CriLJ1410 . In that case a Bench consisting of S. R. Das, Bhagwati and Imam, JJ., held that under Sub-section (6) of Section 439 an accused person had the right to challenge his conviction afresh after his, appeal against conviction had been dismissed by a Bench of the High Court. In course of his judgment S. R. Das, J., observed:--

'Under Sub-section (1) of Section 439 there can be a revision only of the judgment or order of criminal courts inferior to the High Court and it does not sanction any revision of the judgment or order of the High Court itself. Therefore, where the accused person has unsuccessfully challenged the legality or propriety of his conviction in an appeal or revision application made by him before the High Court he cannot again initiate a substantive application before the High Court under Section 439 (1) of the . Code to re-examine his conviction and sentence, for that will be to ask the Court to revise its own previous judgment or order, which the High Court cannot do under Section 439 (1).'

At page 640, Das, J., further observed:

'Section 439 (1) does not contemplate or permit judgments or orders made by the High Court in exercise of its original or appellate criminal jurisdiction to be revised by the High Court.'

67. In that case, the Supreme Court was not concerned with the question of revision of any order made by the High Court in the exercise of its original criminal jurisdiction. Nevertheless, the observation of Das, J., in clear and unequivocal terms that no revision lies in such a case is of considerable importance. Bhagwati, J., who spoke for himself and Imam, J., stated with reference to Section 439 (1) of the Criminal Proceduce Code at page 648 of the Report:

'This is a clear exercise of the revisional jurisdiction of the High Court and can be exercised by it only qua the judgments of the lower courts and certainly not qua its own judgments which have replaced those of the lower Courts.

That jurisdiction can only be exercised by the High Court when the record of the proceedings of subordinate Courts has been called for by itself or the case has been reported to it for orders or has otherwise come to its knowledge and the High Court suo motu or on the application of the party interested, thinks it fit to issue a notice for enhancement of sentence.'

68. No doubt Bhagwati, J., did not pronounce in express terms on the question whether a Bench of the High Court can revise an order passed by the High Court in the exercise of its original criminal Jurisdiction as Das, J., did; nevertheless, it is significant that the learned Judge who was a party to the decision in AIR 1949 Bom 29 did not demur to the observation of S. R. Das, J. It is, therefore, more than arguable that he revised his views expressed' in the earlier case and agreed with the views of S. R. Das, J. As the observation of S. R. Das, J., on this particular question was an obiter, it has to be conceded that strictly speaking, Bhagwati, J. was not called upon to agree or disagree with Das, J. Be that as it may, he did express the view that the High Court has no power to, revise its own judgment, which in the context of that case, meant a judgment of an appellate Bench of the High Court, a view which had been expressed earlier by Pefheram, C. J. in In Re: F. W. Gibbons, (1887) ILR 14 Cal 42 (FB).

69. On a careful consideration of principles and precedents, we are firmly of opinion that the High Court has no jurisdiction in revision to interfere with any judgment, order or sentence passed by a Judge of the High Court in the exercise of its original criminal jurisdiction. As we, have no jurisdiction to entertain the application, we do not think we should pronounce, on its merits, the more so, when we are told that an application by the State for leave to appeal to the Supreme Court from the order of Bagchi, J., is pending. In these circumstances, we discharge the Rule.


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