Rabindra Nath Chaubey v. Charai Chamar — 1984 DIGILAW 240 (PAT)

Judgment S.S.SANDHAWALIA, J. 1. Can the High Court acting in its revisional jurisdiction under S.397 of the Criminal P.C. 1973, constrict the scope of a petition in revision, directed against a judgment of conviction to the limited point of sentence only - is the significant question necessitating this reference to the Division Bench. Equally at issue is the correctness of the view of a number of judgments of this Court holding to the contrary under the provision of the old Code as also of the present one. 2. The facts deserve notice with relative brevity. The petitioners were brought to trial upon a complaint before Sri Ishwari Prasad, Judicial Magistrate and were convicted under S.386 read with S.34 of the Penal Code. And petitioner No. 1 was also convicted under S. 379 IPC and were sentenced to six months rigorous imprisonment. The petitioners then preferred an appeal before the Sessions Judge, which was heard by the 2nd Additional Sessions Judge, Sasaram, who by his detailed judgment accepted all the findings of the trial Court and further (held) that the offences under S.386 read with S.34 IPC were made out against all the petitioners and that the offence under S.379 IPC was also proved against petitioner No. 1 and accordingly affirmed the convictions and sentences imposed on the petitioners. The petitioners then preferred the present criminal revision application which came up before this Court on the 22nd of Aug. 1980, and the following order was recorded: "This application will be heard on the question of sentence only. Issue notice and call for the records." However, when this case came up for hearing before my learned brother B. P. Gnyaghey, J., sitting singly, the learned counsel for the petitioners Mrs. Gyan Sudha Mishra contended that despite this specific admission of the revision petition on the question of sentence only, she was, nevertheless, entitled to challenge the conviction on merits as well apart from the issue of sentence only. The learned single Judge was pressed to examine the evidence and reappraise the same for acquitting the petitioner altogether. Gyan Sudha Mishra contended that despite this specific admission of the revision petition on the question of sentence only, she was, nevertheless, entitled to challenge the conviction on merits as well apart from the issue of sentence only. The learned single Judge was pressed to examine the evidence and reappraise the same for acquitting the petitioner altogether. Reliance was placed on Shaikh Idris V/s. Emperor AIR 1939 Patna 349; Suggi Bind V/s. State AIR 1968 Patna 382: Kamaleshwari Thakur V/s. State AIR 1970 Patna 391; Budhu Oraon V/s. The State of Bihar 1977 BBCJ 425 and S. P. Mallik V/s. State of Orissa (1982 BLJ R 11) for contending that the scope of the revision petition could not be limited even by the High Court itself to the question of sentence and the petitioners were entitled to challenge the evidence and the merits of the case itself for securing an acquittal. Apparently disagreeing with the said view and doubting the correctness of the single Bench judgments in support thereof, the case was referred for an authoritative decision to the Division Bench. 3. Now the solitary, though significant, issue herein has necessarily to be viewed against the broader vista of the scope of the revisional jurisdiction of the High Court under Chap. XXX of the Criminal P. C., 1973 (hereinafter referred to as "the Code"). What perhaps calls for pointed notice at the outset is the fact that under S. 397 of the Code the revisional jurisdiction is a discretionary one in sharp contradistinction to the appellate jurisdiction under Chap. XXIX which confers a substantive right of appeal in specific cases. The language used in S. 397 is that the Court concerned that is, either the High Court or the Sessions Judge "may call for and examine the record of any proceeding". It is not couched in terms mandatory to say that the Court shall call for and examine the record. It is a power which may be exercised suo motu or apparently on facts brought to the notice of the revisional High Court at the instance of a party. The scope of the examination is directed to the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings before the inferior Court. It is a power which may be exercised suo motu or apparently on facts brought to the notice of the revisional High Court at the instance of a party. The scope of the examination is directed to the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings before the inferior Court. The distinction betwixt the appellate and revisional jurisdiction is also the rationale for the provisions of S. 401(4) of the Code laying down that where an appeal lies and no appeal is brought then no proceeding by way of revision shall be entertained at the instance of the party who could have appealed subject to the qualification of sub-sec.(5) thereof. It has then to be borne in mind that in view of this provision a revision petition in the High Court directed against the conviction has normally to pass through the mill of the trial Court as also an appeal to the Court of Session where it is so provided. Ordinarily, therefore, there would be a twin appraisal of facts and law before the trial and the appellate forums before the matter of conviction comes up on the revisional side of the High Court. Though there is no cast-iron rule against it yet by hallowed practice the scope of the revisional jurisdiction is not a third reappraisal of evidence afresh but the same is directed to the somewhat larger issue of the correctness, legality or propriety of any finding, sentence or order. 4. It is in the light of the above that S. 403 of the Code and the corresponding S. 440 of the old Code have to be viewed. It is instructive to juxtapose the two provisions 403 of the Code 440 of the old Code "Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader be fore any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader. No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision : Provided that the Court may if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect S.439, sub-sec. (2). " The similarity and indeed the identity of the aforesaid provisions would make it crystal clear that for nearly a century under the criminal procedure no party has any right to be heard either personally or by pleader before the Court in the exercise of its revisional jurisdiction. This provision must be taken as a legislative rescission or in any case limitation of the general principle that a party is entitled to be heard before any order affecting it can be made. This indeed highlights the discretionary nature of the revisional jurisdiction. 5. Now once it is manifest that the revisional jurisdiction is in essence discretionary in nature and somewhat limited within the four corners of S.397, it would follow that the revisional Court may refuse to exercise this jurisdiction at the threshold and dismiss a revision petition in toto and in limine. This is indeed undisputed. If that be so, can there possibly be a bar to the Court in the exercise of its discretion limiting the admission and scope of the revision petition to the question of sentence only? On principle, one can see none. Indeed, it appears to me that such an order at the threshold stage of admission is in terms a composite order or two orders by necessary implication. In terms it first means affirmation of the judgment of conviction of the trial Court and that of the appellate Court below. To put it in other words, in terms and in essence it means that the revision petition is dismissed on merits and on the point of challenge to the conviction under the specific section of the statute. The second part of the order is that the revision petition is admitted on the point of sentence only. To put it in other words, in terms and in essence it means that the revision petition is dismissed on merits and on the point of challenge to the conviction under the specific section of the statute. The second part of the order is that the revision petition is admitted on the point of sentence only. Viewed in this light, the High Court, which has the power to dismiss the revision petition in toto at the threshold, dismisses it on the point of merits and conviction and retains only the issue of sentence and its quantum for its consideration- Can that order of the High Court itself be easily overturned and reviewed ? I do not think so, On principle, therefore, it seems manifest that in the absence of any statutory provision to the contrary and, in particular; in the light of the fact that there is no substantive vested right of revision, the Court has the necessary statutory power to either refuse to entertain a petition in revision altogether or to limit the scope of the same. Such limitation is in essence a dismissal on merits, and reappraisal of evidence and the nature of conviction on the firm ground of the facts found by the Courts below. 6. The matter is yet capable of examination from another refreshing angle as well. By way of analogy it may be noticed that in State of Orissa V/s. Ram Chander Agarwala AIR 1979 SC 87 : (1979 Cri LJ 33) it has been categorically held that once a judgment has been rendered by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision thereof can be entertained under any provision of the Code or even in the exercise of inherent power. It is true that an order under S. 397 of the Code calling for the record in the exercise of the powers of revision is not stricto sensu a judgment but the spirit underlying the rule that judgments and orders of a criminal Court are not to be easily recalled and reviewed cannot go unnoticed. It is true that an order under S. 397 of the Code calling for the record in the exercise of the powers of revision is not stricto sensu a judgment but the spirit underlying the rule that judgments and orders of a criminal Court are not to be easily recalled and reviewed cannot go unnoticed. Now once the order admitting the revision petition of the point of sentence alone is viewed as a composite order (that is, in essence dismissing the revision petition on merits and on the point of conviction, and retaining only the point of sentence open for consideration), any subsequent re-examination on merits and disturbance and overturning the order of conviction would, in essence, amount to review or recall of the earlier order of the High Court itself. This calls for particular notice that the earlier view that within the revisional jurisdiction some scope for review was possible has now been set at rest by Ram Chander Agrawalas case (supra) and the Full Bench judgment of the Punjab and Haryana High Court in Ajit Singh V/s. State of Punjab (1982 Cr LJ 1215). That being so, this aspect, by way of analogy, further buttresses the stand that the High Court having once limited the scope of revision to the point of sentence only, the same cannot be overridden or side-tracked with impunity. 7. It must, however, be pointedly noticed that the position in the criminal appellate jurisdiction is on a plainly different footing. Chap. XXIX of the Code confers in specific cases a statutory right of appeal provided for in different sections thereof. These provisions spell out in specific terms the manner and mode of hearing the appeals both at the threshold stage of admission and later after notice to the other side. They confer on the appellant or pleader a right to be heard in support of such appeal within the four corners of the statute. It is even otherwise well settled that a statutory right of appeal is a vested and substantive right. Therefore, it was in a somewhat identical context of Chap. XXXI of the old Code that their Lordships in Rabari Ghela Jadav V/s. State of Bombay AIR 1960 SC 748 : (1960 Cri LJ 1156) have held that an appeal under Ss. It is even otherwise well settled that a statutory right of appeal is a vested and substantive right. Therefore, it was in a somewhat identical context of Chap. XXXI of the old Code that their Lordships in Rabari Ghela Jadav V/s. State of Bombay AIR 1960 SC 748 : (1960 Cri LJ 1156) have held that an appeal under Ss. 421, 422 and 423 of the old Code would not be put in the procrustean bed of being limited on the point of sentence alone. However, the Bench in the aforesaid case itself noticed that a revision would be on a different footing with the following observation (At p. 1158 of Cri LJ): "We make it clear, however, that in dealing with Mr. Umrigars submission on this point we are concerned with the powers of an Appellate Court and not with the power of a High Court in the exercise of its revisional jurisdiction which does not arise for consideration in this appeal. In our opinion, the form of the order admitting the appeal in the present case was invalid and the appellant could have insisted that since the appeal had not been summarily dismissed, the High Court should have heard his appeal on the merits as well." The aforesaid observation in essence would be in conformity with the view that whilst in the appellate forum a limitation on the point of sentence alone may not be possible but in the revisional jurisdiction it would be permissible. 8. By way of a strong, if not conclusive, analogy reference may now be made to Art. 136 of the Constitution and the limitation imposed by precedent on the admission of criminal appeals thereunder. The wide amplitude of their Lordships powers under the said Article deserves notice in extenso: "136(1). Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India." Particular notice may be taken of the words "in its discretion" exployed in the aforequoted provision. As I have noticed earlier, the revisional powers of the High Court are in a way discretionary in nature. As I have noticed earlier, the revisional powers of the High Court are in a way discretionary in nature. Kinship, if not identity, betwixt those powers and the special leave to appeal by their Lordships of the Supreme Court is somewhat plain and needs no elaboration. In fact, it calls for notice that under Art. 136 the forum is an appellate forum and the power conferred is in the widest amplitude. Nevertheless, the final Court has repeatedly held that if special leave petition has been admitted on the point of sentence alone, the Bench would in fact be barred from entering into an examination on merits. In Jagdev Singh V/s. State of Punjab AIR 1973 SC 2427 : (1973 Cri LJ 1614) special leave had been granted by the Court limiting the scope of the appeal to the question whether the Probation of Offenders Act would apply to the case. At the stage of final hearing, however, counsel insisted on appraisal on merits. Categorically rejecting such a submission, their Lordships held : "The merits of the appellants conviction are not, therefore, open to argument. The counsel has, however, contended that the whole case should be considered to be open for consideration by this Court, the restricted special leave notwithstanding, because the discretionary power of this Court under Art. 135 of the Constitution is intended to be exercised to set right grave injustice and if a case for such interference is made out even at this stage, the limitation imposed while granting special leave should not be held as a bar to the power of this Court to set right such grave injustice. This submission, however, attractive prima facie as an appeal to this Court to set right grave injustice, is misconceived and difficult to accept. While granting special leave this Court considered the whole case and came to the conclusion that in the interest of justice only the applicability of the Act required examination. On no sound principle can this Court now ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting special leave." 9. Again the direct precedent with regard to the limitation of special leave on the question of sentence alone is the case of Ram-Sarup V/s. State of Haryana AIR 1977 SC 1792 : (1977 Cri LJ 1439). The scope of the appeal must be confined within the limitation specified in the order granting special leave." 9. Again the direct precedent with regard to the limitation of special leave on the question of sentence alone is the case of Ram-Sarup V/s. State of Haryana AIR 1977 SC 1792 : (1977 Cri LJ 1439). Therein it was held in unequivocal terms as follows : "This is an appeal by special leave limited only to the question of sentence. Since the offence for which appellants 2 and 4 are convicted is under S. 302 read with S. 149 of the Penal Code, the special leave though limited only to the question of sentence must obviously carry with it leave also as regards the nature of the offence arising from the homicidal death of Chandu the deceased. But the special leave granted by this Court being limited to the question as to the nature of the offence, we cannot permit the appellants to go behind the findings of fact recorded by the High Court." 10. What has been authoritatively and categorically said by the final Court in the context of special leave to appeal would, in my view, a fortiori be true in a criminal revision in view of the discretionary nature of the jurisdiction under S. 397 and the bar of any right to be heard by any one of the parties under S. 403 of the Code. It thus seems to follow that the petitioner convict cannot claim a hearing on merits or on the point of conviction once the revision has been limited to the point of sentence only. 11. It now remains to advert to the discordant notes struck by single Judge within this Court stemming as they do under some misapprehension from the earlier judgment in Shaikh Idris V/s. Emperor AIR 1939 Pat 349 : (40 Cri LJ 751). A close perusal of the judgment would show that therein a limited rule was issued to examine the legality of separate sentences under Ss. 380 and 457 of the Penal Code. The Division Bench primarily directed itself to the said issue. However, in the closing paragraph it was cryptically observed that though it would have been sufficient to remit the unexpired portion of the sentences but having gone into the evidence the Bench found the case very suspicious and the accused were acquitted. 380 and 457 of the Penal Code. The Division Bench primarily directed itself to the said issue. However, in the closing paragraph it was cryptically observed that though it would have been sufficient to remit the unexpired portion of the sentences but having gone into the evidence the Bench found the case very suspicious and the accused were acquitted. Obviously enough, the point before us was not even remotely raised far from having been considered or adjudicated upon. Once that is so, it is well settled on the authority of Quinn V/s. Leathem (1901 AC 495) that a case is only an authority for what it actually decides and it cannot be quoted for a proposition that may seem to follow logically from it. Following the same it was observed in State of Orissa V/s. Sudhansu Sekhar Misra, AIR 1968 SC 647 that what is of the essence in a decision is its ratio and not every observation found therein and further that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it. As already noticed, since the question was not even raised nor adjudicated before it, the Bench decision in Shaikh Idriss case (supra) is in no way a precedent either directly or by way of analogy. I am clearly of the view that the observation in the said case is no warrant for the proposition that where a revision petition has been admitted expressly on the point of sentence alone, nevertheless the accused is entitled to reagitate the issue on evidence and merits as well. This case is, therefore, plainly distinguishable. 12. However, there is no gainsaying the fact that subsequently certain learned single Judges of this Court have purpoted to infer from Shaikh Idriss case ((1939) 40 Cri LJ 751) (supra) that even though a criminal revision was expressly admitted on the limited point of sentence yet the merits would necessarily have to be gone into. AIR 1968 Pat 382 : (1968 Cri LJ 1197) Suggi Bind V/s. The State took a similar view and apart from following Shaikh Idriss case (supra) sought some support from certain observations of the Allahabad and Calcutta High Courts. It is plain that the matter was not considered in depth and neither principle nor precedent seems to have been cited in detail. It is plain that the matter was not considered in depth and neither principle nor precedent seems to have been cited in detail. The subsequent Supreme Court judgments in Jagdev Singss case (1973 Cri LJ 1614) (supra) and Ram Sarups case (1977 Cri LJ 1439) (SC) (supra) run patently counter to any such veiw. With the greatest deference and for the detailed reasons recorded earlier, I am constrained to hold that Suggi Binds case (supra) is not good law and is hereby overruled. It would appear that later in a chain reaction the view has been followed by the learned single Judges in Kameshwari Thakur V/s. State, AIR 1970 Pat 391 : (1970 Cri LJ 1578); Budhu Oraon V/s. State of Bihar, 1977 BBCJ 425 ; and, S. P Mallik V/s. State of Orissa, 1982 B LJ R. 11 : (1982 Cri LJ 19). For the identical reasons given earlier, if these cases are to be taken as warrant for the proposition that despite the admission of a criminal revision on the limited point of sentence, the merits of the conviction as well would be gone into, then they are not sound law and I hereby overrule them. 13. To conclude : the answer to the question posed at the outset is rendered in the affirmative and it is held that in the revisional jurisdiction the High Court under S. 397 of the Code can limit the admission of a petition for revision directed against the judgment of conviction to the point of sentence only. 14. Once that is so, it is common ground in the present case that the admitting Bench on the 22nd Aug., 1980 expressly directed that the revision petition would be heard on the question of sentence only. I would, therefore, decline from entering into the merits and reappraising the evidence for the third time. The conviction has thus to be maintained. Equally, nothing could be brought to our notice with regard to the quantum of sentence which has been concurrently imposed by the Courts below which would merit any tinkering therewith. 15. The criminal revision petition being thus devoid of merit is hereby dismissed. B.P.GRIYAGHEY, J. 16 I agree.