Kunhammad v. Abdul Kader — 1977 DIGILAW 324 (MAD)

Order.- This is a petition filed under section 482 of the Code of Criminal Procedure, 1973 by accused 1 and 2 in C.C.No. 571 of 1972 on the file of the Judicial Magistrate of the II Class, Cannanore, praying that the order passed by this Court in Crl.R.P. No. 253 of 1975 may be interfered with in review and the convictions and sentences passed against the petitioners be quashed, as a second revision is maintainable in the light of the decision of Khalid, J., in Sankaran Nair v. Madhavan Pillai1, that it is settled law that the procedure to be adopted for cases which started before the coming into force of the new Code is the procedure under the old Code. 2. The petitioners along with six others were convicted for offences punishable under section 341, Indian Penal Code, and they were sentenced to pay a fine of Rs. 150 each. Criminal appeals filed before the Chief Judicial Magistrate, Tellicherry, resulted only in the confirmation of the convictions and sentences passed by the trial Court. The 7th accused thereafter filed Crl.R.P. No. 16 of 1974 and accused 1 to 6 and 8 filed Cr.R.P.No. 36 of 1974 before the Court of Session, Tellicherry, against the judgment of the Courts below. The learned Sessions Judge acquitted all the accused except the petitioners. Against the order of the Court of Session, the petitioners filed Crl.R.P.No. 203 of 1975 before this Court and the same was dismissed on the ground that the revision petition was not maintainable in view of the bar under section 399(3) of the Code of Criminal Procedure, 1973. 3. The ground taken in support of the reliefs claimed in the petition is that in the light of the decision reported in Sankaran Nair v. Madhavan Pillai1, following the decision of the Supreme Court in Philip v. Director of Enforcement2 and also the express provisions contained in section 484(2) of the Code of Criminal Procedure, this Court committed an illegality in holding that a second revision was not maintainable. 4. There is no express or specific provision in the Code of Criminal Procedure conferring powers of review of a judgment or order which has become final on a criminal Court. 4. There is no express or specific provision in the Code of Criminal Procedure conferring powers of review of a judgment or order which has become final on a criminal Court. A criminal Court cannot ordinarily review its own judgment, although it could do so in a few exceptional and extraordinary cases where there has been denial of natural justice, or the judgment or order has been passed without jurisdiction or in default of appearance or where cases have been disposed of not on merits or where the facts of the case are shocking to the judicial conscience and grave injustice has been done to any party, etc., etc. These are only a few illustrations, which cannot be taken as exhaustive. It is not desirable or expedient to lay down any inflexible or invariable rule in this regard. It has to be left to the discretion of the Court, to determine whether inherent power can or cannot be exercised on the facts and in the circumstances of an individual case. The principle of finality of judgments or orders passed in an appellate Court on appeal incorporated in section 393 of the Code of Criminal Procedure, 1973 would equally apply to the judgments or orders passed by the High Court in the exercise of revisional jurisdiction. Powers under section 482 of the Code of Criminal Procedure have to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. Inherent power under this section is to be exercised only for one of the three purposes mentioned therein. In the absence of a provision in the Code of Criminal Procedure to govern a certain or particular matter, it shall have to be considered whether the omission is deliberate or is by oversight or inadvertence. Where there is no express prohibition, the Court shall have to see whether the prohibition can be implied from the various provisions in the Code. Where there is no express prohibition, the Court shall have to see whether the prohibition can be implied from the various provisions in the Code. There is no general power possessed by the High Court to review, to reconsider or revise a judgment or order duly pronounced in a criminal appeal or criminal revision, though a judgment or order can be reviewed, reconsidered or revised in exceptional circumstances, cautiously and sparingly in exercise of the powers under section 482 of the Code of Criminal Procedure, provided that the inherent powers are so exercised for one of the three purposes enumerated in the section. (See Mahesh v. State of U.P.)1 5. Apart from the bare assertion that an illegality has been committed, the learned Advocate appearing for the petitioners was not able to point out any want of jurisdiction, illegality, irregularity or any violation of the principles of natural justice so far as the order sought to be reviewed was concerned. It was on the assumption that Crl.R.P. No. 203 of 1975 filed before this Court was governed by the Code of Criminal Procedure, 1898 that the Counsel vehimently contended relying on the decisions referred to above that a second revision was maintainable. I may say at once that there is absolutely no merit or substance in the contentions raised on behalf of the petitioners and that the decision of the Supreme Court relied on by him does not support the proposition contended for by him. For a proper appreciation and disposal of the points involved in this petition certain dates are relevant. 6. The petitioners and six others were convicted by the trial Court by its judgment dated 7th October, 1972. Crl.A.Nos. 24 and 35 of 1972 were fled by them on 26th October, 1972 and these appeals were dismissed confirming the convictions and sentences on 8th July, 1974. Then Crl.R.P.No. 36 of 1974 was filed by the petitioners on 8th October, ]974 and the same was disposed of on 11th February, 1975. It is significant to note that this revision petition was filed under section 397 of the Code of Criminal Procedure, 1973. Finally Crl.R.P. No. 203 of 1975 was filed before this Court on 29th May, 1975. 7. It is significant to note that this revision petition was filed under section 397 of the Code of Criminal Procedure, 1973. Finally Crl.R.P. No. 203 of 1975 was filed before this Court on 29th May, 1975. 7. The Code of Criminal Procedure, 1898, which will hereinafter be called the old Code, was repealed by the Code of Criminal Procedure, 1973 (hereinafter called the new Code) and the new Code came into force on 1st April, 1974. It was by virtue of sub-section (1) of section 484 of the New Code that the old Code was repealed. But under sub-section (2) of the same section certain matters specifically enumerated therein have been saved. In this regard while construing the scope and effect of sub-section (2), the saving clause, it would be advantageous to refer to the relevant provisions in section 6 of the General Clauses Act, 1897. A reading of section 6 of the General Clauses Act shows that unless a different intention appears in the repealing enactment, the repeals all not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. A different intention appears in sub-section(2) of section 484 of the new Code. The scope of the saying clause is also restricted as is clear from the express words used therein. Such category of proceedings as have been specifically enumerated in the clause in question alone have been saved. Under section 484(2)(a) of the new Code, if, immediately before the date on which the Code came 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 old Code, as in force immediately before such commencement, as if the new Code had not come into force. There is a proviso to sub-section (2)(a) and that is that every inquiry under Chapter XVIII of the old Code which is pending at the commencement of the new Code, shall be dealt with and disposed of in accordance with the provisions of the new Code. Admittedly the Criminal revision petitions filed before the Court of Session, Tellicherry, was not pending immediately before the date on which the new Code came into force and these revisions were filed only on 8th October, 1974 long after the new Code into force. Section 484(2) (a) of the new Code has no application to these revision petitions, which are governed by the provisions of the new Code. The parties also were aware of this, as is clear from the fact that admittedly these revision petitions before the Court of Session, Tellicherry were filed under section 397 of the new Code. Section 399(3) of the new Code clearly states that where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. Similarly under section 397(3) of the new Code, if an application for revision has been filed by a party either to the High Court or to the Sessions Judge, no further application by the same party shall be entertained by the other of them. 8. Under section 435 of the old Code, powers had been conferred on the High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the State Government in that behalf, to call for and examine the record of any proceeding before any interior 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 such inferior Court. It is only under section 436 of the old Code that the Sessions Judge or the District Magistrate had been given power to pass an effective order on examining any record under section 435 or otherwise, and this power was limited only to certain matters. It is only under section 436 of the old Code that the Sessions Judge or the District Magistrate had been given power to pass an effective order on examining any record under section 435 or otherwise, and this power was limited only to certain matters. Under section 436 the Sessions Judge or the District Magistrate, as the case may be, could only interfere with an order of discharge of a person accused of an offence or the dismissal of a complaint under section 203 or subsection (3) of section 204 of the old Code. In all other cases where a Sessions Judge or a District Magistrate on examining record of any proceedings under section 435 or otherwise can only report under section 438 of that Code for the orders of the High Court, the result of such examination. Then the High Court would, under section 439 of the old Code under which very wide powers were given in exercise of its revisional jurisdiction, pass appropriate orders. Substantial changes have been made in the new Code and there are no provisions corresponding to sections 437 and 438(1) of the old Code in this Code. Section 399 is a new provision added in the new Code. The decision of the Supreme Court in Philip v. Director of Enforcement1, has no application to the facts of the case on hand. In that case the aggrieved party filed an application raising a preliminary objection to the maintainability of the complaint before the trial Court and this application was dismissed by an order dated 5th September, 1973. On the same day, the same party filed a criminal revision petition under section 435 of the old Code before the Court of Session, Ernakulam. The learned Sessions Judge chose to dismiss the application on 6th August, 1974. This criminal revision petition was pending immediately before the date on which the new Code came into force and therefore the revision petition was to be continued and to be disposed of in accordance with the provisions of the old Code. Under the old Code, a party, whose application for revision was dismissed by the Sessions Judge or was not reported under section 438, could move the High Court invoking its revisional jurisdiction under section 439 of that Code. In other words there was no bar under the old Code for filing a second revision in such matters. Under the old Code, a party, whose application for revision was dismissed by the Sessions Judge or was not reported under section 438, could move the High Court invoking its revisional jurisdiction under section 439 of that Code. In other words there was no bar under the old Code for filing a second revision in such matters. It was the second revision filed by the party that was dismissed by a Division Bench of this Court on the ground that it was not maintainable in view of the bar under section 399(3) of the new Code. It was this decision that was set aside by the Supreme Court, as the revision petition filed by the party under section 435 of the old Code was pending at the commencement of the new Code and therefore in view of section 484 (2) of the new Code, the revision was required to be disposed of in accordance with the provisions of the old Code. 9. It is significant to note the particular words and expressions used in the saving clause in sub-clause 2(a) of section 484 of the new Code. It is not any or every case or legal proceeding that was pending immediately before the date on which the new Code came into force that was saved under this clause. As stated earlier what is saved under this clause is only certain specified categories of legal proceedings as is clear from the provisions therein. It was relying on the observation made by Khalid, J., in Sankaran Nair v. Madhavan Pillai2, that it it: settled law that the procedure to be adopted for cases which started before the coming into force of the new Code is the procedure under the old Code that the Counsel for the petitioner attempted to put a different interpretation to the provisions in sub-clause 2 (a) of section 484 of the new Code. The scope of section 484(2)(a) as such does not appear to have come up for discussion and direct decision in this case. There are different stages in a criminal case, namely investigation, inquiry, trial, appeal and revision. 10. The scope and effect of the saving clause in sub-section 2(a) of section 484 of the new Code came up for consideration before a Division Bench in Raman Pillai v. Dakshayani3, to which the learned Judge also was a party. There are different stages in a criminal case, namely investigation, inquiry, trial, appeal and revision. 10. The scope and effect of the saving clause in sub-section 2(a) of section 484 of the new Code came up for consideration before a Division Bench in Raman Pillai v. Dakshayani3, to which the learned Judge also was a party. The position of law in this respect has been made clear in this case. If the intention of the legislature was that every case started or commenced before the coming into force of the new Code should be continued under the old Code until its final disposal, they could have easily used the words "any or every case or proceeding pending’, instead of limiting the saving clause to only certain categories of proceedings like, "appeal, application, trial, inquiry, or investigation pending". The intention of the legislature is clear from the express words and the present tense used in the sub-section. It was held by the Division Bench in Raman Pillai v. Dakshayani1 while construing the saving clause in section 484 of the new Code that the present tense used in section 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 new Code. Therefore, in a case where investigation was pending at the time the new Code came into force, such investigation alone could be continued in accordance with the provisions of the old Code and not the subsequent inquiry or trial. The Division Bench further stated: “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”. It was following Philip v. Director of Enforcement2, as is clear from the reference made therein, that the learned single judge made the observation referred to in the previous paragraph. This decision of’ the Supreme Court has already been referred and discussed in detail in one of the prior paragraphs. With due respect, the Supreme Court has not laid down in this decision anything counter or contrary to what is stated in Raman Pillai v. Dakshayani1, or what has been discussed and found herein. This decision of’ the Supreme Court has already been referred and discussed in detail in one of the prior paragraphs. With due respect, the Supreme Court has not laid down in this decision anything counter or contrary to what is stated in Raman Pillai v. Dakshayani1, or what has been discussed and found herein. In the context, it would appear, that the learned single Judge did not intend to mean anything more than what was really decided in Philip v. Director of Enforcement2. 11. A revision is not a right and is only a procedural facility afforded to a party, while appeal is a statutory right conferred on a. party. It cannot be said that a revision is a continuation of the suit, appeal or trial. It is only, as stated in Raman Pillai v. Dakshayani1 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 and that 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. 12. This petition has therefore, no merits and is not sustainable on any of the grounds urged. The result is that it is dismissed.