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1975 DIGILAW 236 (KER)

RAMAN PILLAY v. DAKSHAYANI

1975-09-18

P.JANAKI AMMA, V.KHALID

body1975
Judgment :- 1. The short point involved in these petitions is whether this Court should invoke its revisional jurisdiction for examining the correctness, legality or propriety of the order of acquittal in a case at the instance of the de facto complainant. This Court in the decision in Abraham v. Thankamma (1975 KLT 451) held that revision petitions arising from matters pending in courts subordinate to the Sessions Judge should at the first instance be filed before the Sessions Judge. The petitions which came up in Abraham v. Thankamma (1975 KLT 451) did not relate to acquittal. The present petitions were referred to a Division Bench since it was contended before the Single Judge that a revision against the order of acquittal stands on a different footing and as it was urged that S.402 of the new Code of Criminal Procedure has not been adverted to in the above decision. Before considering these aspects, it may not be out of place to refer generally to the relevant provisions of the old Code of Criminal procedure and some of the changes effected in the new Code. 2. Under the Code of Criminal Procedure, 1898, powers of revision were conferred on the High Court, Sessions Judge and the District Magistrate under S.435 and 436. Under S.435 (4), if any application had been made either to the Sessions Judge or the District Magistrate, no further application was entertainable by the other of them. S.436 related to cases where effective orders could be made by the Sessions Judge. In cases where the Sessions Judge was not competent to make effective orders, he was to send a report to the High Court under S.438 and the High Court would pass appropriate orders under S.439. A practice had been followed by almost every High Court that wherever there was concurrent revisional jurisdiction conferred on Courts of different grades, the aggrieved party should approach the interior among such Courts first and not the High Court directly. This practice was being followed in matters falling under S.436. It is referred to in the decisions in Das Isaac v. Narayanan (1958 KLT 1110) and Mohammed Bashir v. Iffy (1963 KLT 932). This practice was being followed in matters falling under S.436. It is referred to in the decisions in Das Isaac v. Narayanan (1958 KLT 1110) and Mohammed Bashir v. Iffy (1963 KLT 932). In Devaki v. Kitta (1967 KLT 31) a Division Bench of this Court extended the above principle to all cases under S.435 and 439 and held that as a salutary practice, the High Court would not entertain a revision petition unless the aggrieved party approached the inferior court first. The matter was considered by a Full Bench in Narayanan v. Kannamma Bhargavi (1968 KLT 495). The Full Bench disposed of the issue with the following observations: "We are of the view that it would be improper to compel a party having a strong case in his favour under S.439 of the Code, to approach first the Sessions Judge or the District Magistrate. He should not be compelled to do so except in cases where the Sessions Judge or the District Magistrate is capable of passing effective orders, as in a case of a discharge or dismissal of complaint. In all other revisional matters, the aggrieved party may approach this Court direct if so inclined". Though the Full Bench did not specifically refer to the earlier decision Das Isaac v. Narayanan (1958 KLT 1110) and Mohammed Bashir v. Iffy (1963 KLT 932), the standing practice referred to in those decisions was left unaffected in matters under S.436 Criminal Procedure Code; that is, where effective orders could be passed by the Sessions Judge or the District Magistrate. 3. The new Code of Criminal Procedure (Act 2 of 1974) effected some changes in the revisional jurisdiction. No powers of revision are conferred on the Chief Judicial Magistrate. In other respects, S.397 (1) corresponds to S.435 (1) and S.398 corresponds to S.436. S.397 (3) is worded on similar lines as S.435 (4) but with the difference that the High Court and the Sessions Judge are substituted in the places of Sessions Judge and the District Magistrate. A bar is also imposed in the exercise of revisional powers in relation to interlocutory orders. S.399 and 401 deal with the powers of revision of the Sessions Judge and the High Court. A bar is also imposed in the exercise of revisional powers in relation to interlocutory orders. S.399 and 401 deal with the powers of revision of the Sessions Judge and the High Court. It is evident that the restrictions that existed under the old Code on the revisional powers of the Sessions Judge have been taken away and the Sessions Judge is competent to exercise all or any of the powers that may be exercised by the High Court under S.401. S.399 (3), however, states that when any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. 4. It was after considering the above provisions that the Division Bench of this Court held in Abraham v. Thankamma (1975 KLT 451) following Narayanan v. Kannamma Bhargavi (1968 KLT 495) that no party should be allowed to approach this Court direct for invoking revisional jurisdiction without moving the Sessions Judge. There is no need to repeat all the reasons which led to the decision in Abraham v. Thankamma (1975 KLT 451). The contentions now put forward are three-fold: (1) The decision does not have application when an order of acquittal is challenged in revision because the High Court alone is competent to convert an order of acquittal to one of conviction. (2) In view of the provision contained in S.397 (3) and S.399 (3) the party who approaches the Sessions Court is deprived of the right to get the issue put forward by him decided by the highest Tribunal in the State. (3) The decision in Abraham v. Thankamma (1975 KLT 451) has not taken into account S.402 of the Code of Criminal Procedure. 5. There is not much force in the first contention because the High Court is not expected to convert in revision, a finding of acquittal, into one of conviction. The powers of the High Court in this respect are controlled by S.4010) and the same powers can be exercised by the Sessions Judge in view of S.399 (2). 5. There is not much force in the first contention because the High Court is not expected to convert in revision, a finding of acquittal, into one of conviction. The powers of the High Court in this respect are controlled by S.4010) and the same powers can be exercised by the Sessions Judge in view of S.399 (2). Therefore, if there is a case for interference, the Sessions Judge is competent to deal with it in the same manner as the High Court. 6. It is true that the High Court is not to entertain a revision petition where a person fails to convince the Sessions Judge of the existence of a case for interference. To that extent, the person concerned is deprived of an opportunity to have bis case examined by the High Court. But such is the position only in matters disposed of by an authority subordinate to the Sessions Judge. The principle underlying the provision is that in such cases the party should content himself that his case has been examined by a senior officer like the Sessions Judge, and that there should be finality to the matter, in case the Sessions Judge concurs with the subordinate judicial officer. A revision case would lie to the High Court only in case the Sessions judge interferes with the order of the subordinate court. To say that every person should have the privilege of filing revision petition before the High Court at the first instance is to make the revisional powers of the Sessions Judge otiose. It is not correct to say that by directing that revision petitions against orders of subordinate courts should be filed before the Sessions Judge, a party is deprived of the right to approach the High Court, because as in the case of the old Criminal Procedure Code, under the new Code also the revisional jurisdiction of the High Court does not create a right in the litigant but only conserves the power of the High Court to see that justice is done in accordance with recognised rules of Criminal jurisprudence (See P.K. Mitra v. State of West Bengal (AIR. 1959 S.C.144). S.403 of the new Code like S.440 of the old Code denies the parties the right to be heard even in cases where revision petitions are filed by them. 1959 S.C.144). S.403 of the new Code like S.440 of the old Code denies the parties the right to be heard even in cases where revision petitions are filed by them. That a party to a proceeding, not to say a de facto complainant has no special right to file a revision petition is evident from the fact that the expression'party to a proceeding' does not find a place in S.397 to 401. The word used is 'person', which word includes parties to the proceedings, de facto complainant as also strangers. What the petitioner in such cases does is only to bring the alleged irregularities to the notice of the superior court so that that court by invoking its revisional jurisdiction may examine the position and pass appropriate orders. Though High Court has powers of revision in all cases, it is open to it to regulate the exercise thereof and direct that in matters within the revisional jurisdiction of the Sessions Judge the persons concerned should first approach the Sessions Judge. It is to be noted in this connection that S.397 (3) only puts a bar against the exercise of revisional powers on a motion by particular persons. The power of interference suo mote on perusal of calendars or under S.482 Criminal Procedure Code to prevent abuse of the process of any Court or otherwise to secure the ends of justice or the power of superintendence conferred on the High Court under the Constitution remain unaffected. What is laid down in Abraham v. Thankamma (1975 KLT 451) and earlier cases is only a rule of practice and expediency. 7. It is a fact that S.402 of the new Code has not been referred to in the decision in Abraham v. Thankamma (1975 KLT 451). But the omission may not make any difference. S.402 has application only in the case of revision petitions filed by convicted persons. If some of the convicted persons in a case file revision petitions challenging their conviction before the Sessions Judge while some others file before the High Court, S.402 confers on the High Court the power of transfer so that all such petitions are decided either by the Sessions Judge or by the High Court. If some of the convicted persons in a case file revision petitions challenging their conviction before the Sessions Judge while some others file before the High Court, S.402 confers on the High Court the power of transfer so that all such petitions are decided either by the Sessions Judge or by the High Court. But significantly, if against the judgment in the same case, the complainant or the prosecution also files a revision petition challenging a portion thereof the power of transfer under S.402 does not extend to such a petition. To cite another instance, if in a maintenance case, the husband files a revision petition before the Sessions Judge challenging the order directing him to pay maintenance and the wife files a revision petition before the High Court challenging the quantum or the rate of maintenance, S.402 does not confer on the High Court the power to transfer. In the above referred cases, if the High Court omits to exercise the general power of transfer under S.407 in time, there would be chances of conflict of decisions. Such situations would be avoided by resorting to the rule of practice in Abraham v. Thankamma (1975 KLT 451). 8. A further argument based on S.484 of the new Code of Criminal Procedure has been raised by some of the petitioners. In two of the cases, the charge-sheets had been filed and the trial had commenced before the coming into force of the new Code and in one case, the offence was under investigation when the new Code became law. A further argument based on S.484 of the new Code of Criminal Procedure has been raised by some of the petitioners. In two of the cases, the charge-sheets had been filed and the trial had commenced before the coming into force of the new Code and in one case, the offence was under investigation when the new Code became law. It is contended that in these cases no effective order could have been passed by the Sessions Judge in relation to the order of acquittal in view of S.484 (2) of the new Code The relevant portion of S.484 (2) reads: "Notwithstanding such repeal (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as.the case may be, in accordance with the provisions of the Code or Criminal Procedure, 1898 (5 of 1898) as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force: Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code shall be dealt with and disposed of in accordance with the provisions of this Code;" The argument is that a revision petition should be considered to be a continuation of the proceedings pending at the time of the commencement of the Code. There is no force in the contention. In the first place, an application for revision is only a step in aid for invoking the powers of superintendence by the Sessions Judge and the High Court for correcting irregularities, if any, in the judgments and orders of the subordinate courts. Interference in revision being a discretionary power vested in the superior courts a revision petition cannot be considered to be a continuation of the proceedings pending in the trial court or the appellate court. Secondly, the Code of Criminal Procedure envisages different stages between detection of an offence and the ultimate conviction of the offender. These are contained in the provisions relating to investigation, inquiry, trial and appeal. The present tense used in S.484 (2) (a) makes it clear that the said provision has application only to the stage at which the proceedings were pending at the commencement of the Code. These are contained in the provisions relating to investigation, inquiry, trial and appeal. The present tense used in S.484 (2) (a) makes it clear that the said provision has application only to the stage at which the proceedings were pending at the commencement of the Code. To illustrate, in a case where investigation was pending at the time of the commencement of the Code, such investigation alone could be continued as provided in the old Code and not the subsequent inquiry or trial. That this is so, is evident from the words "as the case may be". A contrary reasoning may even lead to the conclusion that all offences which were being investigated at the commencement of the Code should be tried under the old Code, which could not be the intention of the Legislature. The interpretation put to S.484 (2) (a) in Natabar Panda v. State of Orissa (AIR. 1975 S.C.1465) does not stand counter to what is stated above. We do not see any reason why the rule of practice that when concurrent jurisdiction is conferred on courts of different grades, the aggrieved party should approach the inferior among them first and not High Court direct, which has been referred to in Isaac v. Narayanan (1958 KLT 1110) and followed in Abraham v. Thankamma (1915 KLT 451) should not be applied in the case of revision petitions filed under the new Code of Criminal Procedure against orders of acquittal. These petitions are therefore returned to the respective parties for presentation before the concerned Sessions Judges. Time for representation three weeks.