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Mir Ghulam Ahmed Vs. Haji Abdul Rehman and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1973CriLJ832
AppellantMir Ghulam Ahmed
RespondentHaji Abdul Rehman and ors.
Cases ReferredNaravan v. Kannamma
Excerpt:
- .....there is no doubt that there is a lone-standing practice prevailing in almost all the high courts in india by which the litigant was compelled to move the lower courts before invoking the revisional jurisdiction of the high court. it was only in rare and exceptional cases that the applicant was allowed to move the high court direct and his application was entertained for extraordinary reasons. the matter came up for consideration before a full bench of the allahabad high court in shailabala devi v. emperor air 1933 all 678 at p. 684 : 34 cri lj 1115 wherein sulaiman c.j. after considering all the aspects of the master observed as follows:it is therefore quite clear that there is a great preponderance of authority in favour of the existence of the practice of not entertaining.....
Judgment:

S. Murtaza Fazl Ali, C.J.

1. This is an application alienist an order passed by the First Addl. Munsiff Magistrate. Srinagar, by which he has staved the criminal proceedings before him pending disposal of a civil suit between the same parties. The applicants have come up to this Court direct without moving the Sessions Judge to make a reference to this Court.

2. The case was in the first instance heard by Mufti Bahauddin J. while sitting sanely, and he referred it to a Division Bench in order to consider whether the well-established practice of this Court not to interfere in revision unless the carty has moved the Sessions Judge or the Chief Judicial Magistrate should be discontinued in view of changed circumstances. The case was thereafter heard by a Division Bench consisting: of Mufti Baha-ud-Din J., and myself and we referred the following question for an authoritative pronouncement to the Full Bench:

Whether a party invoking the revisional jurisdiction vested under Section 435 of the Criminal P.C. can straightway move the High Court or that he should first move the Sessions Judge or the Chief Judicial Magistrate and then only the High Court.

3. We have heard counsel for the parties at great length. Counsel for the petitioner has mainly relied on a Full Bench decision of the Kerala High Court wherein the Court has criticized the Practice of insisting on the litigant to move the lower courts first before approaching the High Court in revision. Before, however, answering the question referred to us in all its aspects, it may be necessary to state a few admitted circumstances.

4. There is no doubt that there is a lone-standing practice prevailing in almost all the High Courts in India by which the litigant was compelled to move the lower courts before invoking the revisional Jurisdiction of the High Court. It was only in rare and exceptional cases that the applicant was allowed to move the High Court direct and his application was entertained for extraordinary reasons. The matter came up for consideration before a Full Bench of the Allahabad High Court in Shailabala Devi v. Emperor AIR 1933 All 678 at p. 684 : 34 Cri LJ 1115 wherein Sulaiman C.J. after considering all the aspects of the master observed as follows:

It is therefore quite clear that there is a great preponderance of authority in favour of the existence of the practice of not entertaining a revision filed in the High Court direct, though no doubt in some cases the practice was departed from on special or exceptional grounds, and in most of these cases the High Court did not consider the objection fatal after the application had been admitted and the record called for. In my opinion, when an application is presented before an application Judge, hp should in accordance with the practice of this Court refuse to entertain it if the District Magistrate or the Sessions Judge has not been previously approached, unless there are very special reasons why the applicant should not have gone to the District Magistrate or the Sessions Judge in the first instance. But after the application has been entertained and the record called for, the technical objection must cease to have force.

X X X XX X X X My answer to the third question is that, in observance of the well established practice of this Court, neither an application in revision by an accused nor an application by a third party for the purpose of informing the High Court, should be entertained unless there are special reasons why the applicant should not have gone to the District Magistrate or the Sessions Judge in the first instance.

5. Thus the Allahabad High Court chose to stick to its earlier practice of insisting on the litigant to move the lower courts first before invoking the re-visional jurisdiction of the High Court, unless there were special circumstances justifving departure from this age-lone practice. A similar practice prevailed in the Nagpur High Court which is adverted to in Bajirao v. Mt. Dadibai AIR 1926 Nag 285 : 27 Cri LJ 71. In Lallubhai v. Karimbhai : AIR1958Bom276 a Division Bench of the Bombay High Court reiterated that this practice should be insisted upon and observed as follows:

Such an application, of course, lies to the High Court under Sub-section (4) of Section 435, Cr.P.C. But before a party approaches the High Court, he should first apply to the District Magistrate or the Sub-Divisional Magistrate, as the case may be, under Sub-section (2) of Section 435, Cr.P.C.

To the same effect are the decisions in Gobardhandas v. Chaturbhui AIR 1950 Assam 165 and Sukh Lal v. State AIR 1955 Raj 177 : 1955 Cri LJ 1394.

6. A later decision of the Allahabad High Court in State v. Smt. Rampo : AIR1960All636 adhered to the practice of the Allahabad High Court and held that unless the Sessions Judge was moved there was no justification for entertaining the application even at the instance of the Government.

7. The matter was considered at very great length by Subba Rao C.J. (as he then was) in AIR 1956 Andh 97 at pp. 99, 100 : 1956 Cri LJ 571 (2) where the learned C.J. weighed the advantages and disadvantages of the practice and observed as follows:

The question is which practice is more salutary from both administrative and judicial points of view. The following points will support the practice obtaining in all the High Courts except Madras High Court.

(a) The time of the High Court will not be wasted with frivolous applications.

(b) The High Court will have the advantage of the considered opinion of the Sessions Judge or the District Magistrate as the case may be and in most of the cases its work would be facilitated or minimized in disposing of revisions.

(c) The subordinate courts are within the easy reach of the parties and the expenditure to be incurred will be comparatively less than in the High Court.

(d) It avoids conflict of jurisdictions and

(e) The legislature in conferring concurrent jurisdiction may reasonably be assumed to have intended that the inferior Court should exercise jurisdiction in the first instance.

The following Points may be advanced in support of the exercise of jurisdiction by the High Court in the first instance-

(1) The subordinate Courts have no inherent power to make interim orders of stay and therefore an aggrieved party may not eat the entire relief he seeks if he approaches the Sessions Court or the District Magistrate's Court in the first instance.

(2) The Sessions Court or the District Magistrate's Court will not be In a position to make a final order and a party has to make arrangements for representing him in two Courts, i.e., in the Sessions Court or the District Magistrate's Court as the case may be and also in the High Court.

(3) The order of the High Court would be final whereas if the revision petition was dismissed by the subordinate Court, another revision may have to be filed in the High Court.

On a consideration of the aforesaid Points, we are of the view that the practice obtaining in all the High Courts, except in Madras would carry out the intention of the legislature and would better serve the interests of the public from the administrative and judicial points of view.. ... ...

But in our view the salutary Practice to be followed in this High Court should be that ordinarily the High Court will not entertain a revision unless the aggrieved party approached an inferior Court in the first instance and will not deviate from that practice, except on special, exceptional or extraordinary grounds.

This view was endorsed by a Full Bench of thp Andhra Pradesh High Court in A. Srirammurty v. State : AIR1959AP377 where Chandra Reddy C.J. speaking for the Full Bench observed as follows:

This very Question was considered by a divisional Bench of this Court in AIR 1956 Andhra 97 : 1956 Cri LJ 571 (2). After an elaborate discussion and after noticing the practice in various High Courts it reached the conclusion that ordinarily the High Court should not entertain revisions direct from orders of subordinate Magistrates unless the party concerned had first approached the Sessions Court or the District Magistrate as the case may be. The learned Judges expressed the opinion that the practice in vogue in all the High Courts except Madras 'would carry out the intention of the legislature and would better serve the interests of the public from the administrative and judicial points of view.' We think that no further elaboration is needed and that this ruling embodies the correct principle and should be adhered to.. ... ...

Even in this regard this practice results in obtaining speedy relief and avoids the High Court being flooded with revision petitions and it is also less expensive to the litigant

8. So far as our own High Court is concerned, there is a decision of this Court in D.D. Nath v. Kanshi Ram AIR 1966 J & K 143 at p. 144 : 1966 Cri LJ 1444 wherein Bhat J. observed as follows :

It is very well settled that the High Court, the Court of Session and the District Magistrate have concurrent jurisdiction to entertain revision petitions in criminal cases. But the rule of practice has been held to the effect that, instead of approaching the High Court direct the lower Courts must be first approached. The High Court has also held this to be in numerous cases a salutary practice and tnerefore discouraged direct approach to the High Court in criminal revisions.

X X X XThis Court has inherent powers still to entertain a revision direct, even if the lower Courts have not been approached. But for adopting such a course there must be some extraordinary circumstance which. would compel the High Court to interfere without the lower Court being approached.

9. A similar practice appears to have prevailed in the Patna High Court also but in view of the new Limitation Act which inserted Article 131 the Patna High Court in Sakhichand v. Ishwar Dayal AIR 1967 Pat 3ol at p. 357 : 1967 Cri LJ 1555 reconsidered the said practice and observed as follows:

Until the position regarding the pungency of revision applications before the Sessions Judge improves, so that such applications may be disposed of quickly by them, a party may at his option, come to this Court direct under Section 439 read with Section 435 of the Code. But whenever a Party invokes the power of this Court under Section 439 of the Code after the expiry of the statutory period of limitation on account of the tendency of his application in revision before the Sessions Judge, the power to condone the delay under Section 5 of the Limitation Act should be liberally exercised provided that the applicant had been diligently and promptly prosecuting the case in the court below on account of the practice of this Court that the party must go in the first instance to the Sessions Judge or the District Magistrate, as the case may be.

10. From a careful analysis of the authorities mentioned above, the following propositions emerge:

(1) That there is a long-standing practice in almost all the High Courts with the exception of the Madras High Court that the revisional jurisdiction of the High Court should not be invoked direct but the lower courts must be moved first.

(2) That if there are special and extraordinary circumstances Justifying the interference of the High Court, this practice can be departed from.

(3) That the practice mentioned above is not a statutory one nor does it amount to a rule of law but is only a rule of caution.

(4) That where the petition has once been admitted by the High Court the case should be decided by the High Court on merits even though there has been a departure from this practice.

11. It is therefore clear there was a consistent Practice prevailing in almost all the High Courts which required the litigant to move the lower courts before invoking the revisional jurisdiction of the High Court, as seen above. Subba Rao C.J. pointed out the various advantages of this practice which we may now examine in detail. It was first pointed out by Subba Rao C.J. that if the practice is followed the time of the High Courts will not be wasted with frivolous applications. So far as this aspect is concerned, with great deference to the eminent C.J., we beg to differ. The usual practice of the High Courts in hearing revision petitions is that the revision petitions are placed for admission and for preliminary hearing and at that stage any application which is frivolous or which does not involve any question of law or one that does not require interference of this Court can be dismissed in liming thereby preventing the High Court from being crowded with frivolous petitions. In other words the same object can be achieved by the High Court by controlling applications through admissions which may be brought about by following the dilatory procedure of movie the lower courts. It was then observed by Subba Rao C.J., that if the Sessions Judge is moved, the High Court would have the advantage of the considered opinion of the Sessions Judge or the District Magistrate (as the case may be) which would facilitate quick disposal of revisions. This is no doubt a very relevant consideration, but the serious question for consideration is should the litigant be compelled to undergo inconvenience and double expenses in order to give the High Court the facility of deciding cases. It is manifest that if a litigant is forced to go to the Sessions Judge for considering matters in which the Sessions Judge cannot pass effective orders but only make a reference to this Court, then he will have to undergo two hearings before the matter can come up to the High Court. In these days when the needs of the nation have expanded beyond proportion, it will be a relevant factor to consider whether a litigant should be burdened with an additional cost of litigation when our duty is to make justice cheap and expeditious. The learned C.J., further advances the argument that as the subordinate courts are within the easy reach of the parties, it will involve less expenditure than in the High Court. This argument appears to us to be based on a misconception of the scoop and ambit of Section 435 of the Criminal P.C. It is obvious that excepting in cases where the trial court has passed an order of discharge or has dismissed complaint under Section 203. the lower revisional courts, namely, the Sessions Judge, the District Magistrate or the C.J.M. do not possess the same jurisdiction which the High Court has. The lower courts cannot pass effective orders or grant adequate relief to the litigant in all other cases ex-caption those mentioned above. The result is that the litigant has to come to the High Court and bear the expenses of conducting cases there in any event, because the lower courts have only to refer the matter to the High Court for final orders.

12. It was then observed by Subba Rao C.J. that the practice would avoid conflict of jurisdiction and the legislature in conferring concurrent-jurisdiction may reasonably be assumed to have intended that the inferior court should exercise jurisdiction in the first instance. We are however, unable to sep any conflict of jurisdiction because in almost all the matters in which the lower courts are to make a reference to the High Court, they cannot make any effective orders and final orders have to be passed by the High Court alone. Therefore the question of conflict of jurisdiction does not arise at all.

13. As regards the argument that the legislature has conferred concurrent jurisdiction on the High Court and the Civil Courts, it may safely be said that this argument suffers from a misinterpretation of the scope and ambit of Sections 435 and 439 of the Criminal P.C. Section 435 gives powers to the Sessions Judges or the District Magistrates only to examine the legality or the propriety of the order, but they have no jurisdiction to pass any final effective orders even if they are satisfied that the order of the trial court suffers from any patent illegality or infirmity. On the other hand the High Court has got absolute powers to set aside orders in revision if it finds that the order of the trial court, suffers from any legal infirmity or is otherwise not in accordance with law. In these' circumstances the jurisdiction of the Sessions Judges or the Chief Judicial Magistrates and the High Court cannot be said to be concurrent in all respects. This aspect of the matter was considered by a Full Bench of the Kerala High Court in Naravan v. Kannamma : AIR1969Ker126 wherein their Lordships pointed out that the expression 'concurrent' connotes joint and equal in authority which cannot be said of the Sessions Judges and the High Court while exercising their revisional powers. In this connection their Lordships of the Full Bench observed as follows:

We would also like to point out that it is not correct to say that the jurisdiction vested in the Sessions Judges and the District Magistrate on the one hand and the High Court on the other, is 'concurrent' in the strict sense of the term. The expression 'concurrent' connotes 'joint and equal in authority'. In other words the two agencies or units should possess co-equal powers but in the present instance the power is not co-equal as we have already seen. The position therefore is that by adhering to this long-standing practice of insisting on the litigant to approach the lower courts first, the High Court has placed fetters on its own powers which are not at all warranted by the plain language of Sections 435 and 439 of the Cr.P.C. It is said by some of the authorities that this practice is salutary and advances the object of the legislature. It is, in our opinion, extremely doubtful if it does. The Question is, whether, in view of the changing and expanding needs of the society and the present day conditions where have arrears are mounting in every court contributing to huge delay in decision of cases, can the practice be still said to be salutary and conducive to Quick and speedy dispensation of criminal justice? Our answer must be in the negative. In fact the burning problem of the day is to brine about cheap and expeditious justice by reducing have amount of arrears which have accumulated in various courts in the country. This can be done by devising ways and means of cuttings out delays, by simplifying and shortening legal procedures and by abolishing steps which tend to multiply rather than reduce litigation. The Practice of insisting on the litigant to approach the lower courts before invoking the revisional jurisdiction of the High Court may have held good at a time when the number of cases were not that large. the courts were comparatively fewer and the Problem of arrears was not so acute. But this practice in our opinion, has under the present day circumstances, far outlived its utility. If therefore, the aforesaid practice is discontinued, it will be in consonance with the modern consent of administration of cheap and speedy justice and will doubtless tend to serve the interests of the people and advance the object of the legislature. AH the authorities which we have mentioned above have clearly noticed that the legislature in its wisdom did not choose to place any fetter on the right of the High Court to entertain revision petitions direct, nor is there any statutory bar to the maintainability of-such a petition. If therefore, no inhibition or bar was placed be the legislature, why should we insist on this practice which though convenient for the courts is extremely onerous and burdensome to the litigants. In other words by insisting on the practice the litigant is asked to bear the costs and expense for the convenience of the High Court. After all the practice has no statutory force but has been grafted only as a rule of caution and can be altered to suit the changing conditions.

14. Experience has shown that if a litigant is compelled to move the Sessions Judge. this causes a great delay and expense because the petition has first to be admitted by the Sessions Judge and then posted for final hearing. Fresh notices have to be issued and by the time the stage of the final hearing is reached, the lawyers lose contact with the parties and the hearing is postponed indefinitely. Further more, if the lower courts reject the petition, the litigant has to come to the High Court ultimately because it is only the High Court that can pass effective orders excepting cases where the trial court passes an order of discharge or one of dismissal of the complaint. There is a great public demand for speedy disposal of cases and in the background of conditions prevalent today, we think that the interests of the people would be better served and the object of the legislature would be advanced if this practice is discontinued and the litigant is allowed to choose the remedy whichever is available and convenient to him.

15. There is one more aspect which merits serious consideration. Although the practice that the lower courts must be approached before invoking the revisional jurisdiction of the High Court has been existing since a lone time, the legislature made diverse changes by amending the Criminal P.C. in 1955, and this was followed by a corresponding amendment of our criminal P.C. in the State, by Act 42 of 1956. The legislature must be presumed to be aware of this lone-standing practice and vet this practice has not been granted statutory recognition by the legislature by inserting any provision in Sections 435 and 439 of the Criminal P.C. by which the invocation of the revisional jurisdiction of the High Court could be made only after the lower courts are approached first. This is an intrinsic circumstance which shows that the legislature discountenanced this practice, but in due deference to the decisions of the courts it left the master open. We are fortified in our view by a Full Bench decision of the Kerala High Court in : AIR1969Ker126 (Supra) where their Lordships after considering the Pros and cons of the matter observed as follows:

On a careful survey of the authorities bearing on the point and on considering carefully the points for and against we are of the view that a party invoking the jurisdiction of this Court under Section 439 read with Section 435 should be permitted t0 come to this Court direct, without first moving the Sessions Judge or the District Magistrate. The jurisdiction vested in this Court under Section 439 is very wide, and this Court in exercising the jurisdiction so vested, is not expected to enquire whether the nasty seeking the remedy had moved the Sessions Judge first.

x x x x x xx x x x x xHaving Conceded the right of a party to approach this Court direct under Section 435, we do not think it proper to fetter the right by insisting on exceptional or extraordinary, grounds being made out for entertaining the Petition.

X X X XX X X XWhen the law confers a right on a party he must be able to enjoy the right without shackles or snag obstructing him. To avail himself of a remedy held out by the Code, the party is asked to approach first a tribunal with no power to render the relief. This in effect is cutting the party in double-leopard. We are of the view that it would be improper to compel a party having a strong case in his favour under Section 438 of the Court, to approach first the Sessions Judge or the District Magistrate. He should not be compelled to do so except in cases where the Sessions Judge or the District Magistrate is capable of Destine effective orders, as in a case of discharge or dismissal of complaint. In all other revisional matters the aggrieved party may approach this Court direct if so inclined.

16. With great respect to their Lordships, we feel ourselves in complete agreement with the reasons given by their Lordships. We are clearly of the opinion that, as the legislature had left the matter completely open, it should be left to the discretion and choice of the litigant public to invoke the revisional jurisdiction of the High Court direct or to move the Sessions Judge or the Chief Judicial Magistrate first before coming up to the High Court. There may be cases where the place from which a litigant is drawn is at a lone distance from the High Court. In such cases the litigant may think it more convenient to move the Sessions Judge first before approaching the High Court. Furthermore we feel that the rule that the litigant must make out a special or extraordinary case for interference by the High Court if it is moved direct is fraught with serious difficulties. Since under the amendment of 1953 the Sessions Judges or the Chief Judicial Magistrates have got Power to grant stay or to suspend the operation of the orders of the trial Courts, it will be difficult for the litigant to make out a special case or to give extraordinary reasons for moving the High Court direct. In these circumstances the object of the legislature will be better served if we do not insist on the enforcement of this long-standing practice, but leave it to the litigant to move this Court direct or through, the lower Courts.

17. Lastly we cannot overlook an important aspect which flows from the amendment of the Indian Limitation Act by inserting Article 131 therein. Under Article 131 of the Indian Limitation Act the period for filing a revision to the High Court against an order passed under the Criminal P.C. is three months. Thus by fixing such a short period of limitation the legislature clearly envisaged that the High Court should be moved direct against any order passed under the Criminal P.C. Indeed even in face of the presence of Article 131 of the Act, if the Court insisted that the litigant should first move the lower Courts, then most of the cases and revisions in the High Court would have become time barred and the cause of the delay would be the practice insisted upon by the High Court to move the lower Courts. This, however, could never be the intention of the legislature which indirectly appears to have favored the, practice of approaching the High Court direct and that is why a short period of limitation was prescribed. It is obvious that if the matter is taken to the lower Courts, it cannot be disposed of within three months so as to make the petition in the High Court within time. In these circumstances if the narcotic is continued a most anomalous position would arise and the High Court would have to condone the delay under Section 5 of the Limitation Act. This aspect of the matter was clearly hinted by the Patna High Court in : AIR1967Pat351 (Supra). It is true that no corresponding change has been made in the State Limitation Act so far, but in order to ensure uniformity of judicial decisions this aspect of the matter cannot be over-looked by us. We should, therefore, set the litigants free to choose their remedy instead of imposing unnecessary shackles or snags on our revisional powers.

18. For these reasons we answer the question referred to us thus:

A party invoking the revisional jurisdiction vested under Section 435 of the Criminal P.C. can straightway move the High Court without moving the Sessions Judge or the CJM unless it prefers to, act otherwise.

19. The case will now so back to the Division Bench for deciding the case on merits in the light of the opinion avian by us.

Jaswant Singh, J.

20. I agree.

Mufti Bahauddin Farooqi, J.

21. I agree.

S. Wasiuddin, J.

22. I Agree.


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