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1985 DIGILAW 338 (MAD)

John Samuel v. State of Kerala

1985-08-08

S.PADMANABHAN

body1985
ORDER 1. Revision petitioner was the sole accused in C.C.No.245 of 1980 which was tried and disposed of by the Judicial First Class Magistrate, Karunagappally. The petitioner, who was the accused in that case, was charge-sheeted for having committed offences punishable under sections 304-A and 279 of the Indian Penal Code. He was a driver in the Kerala State Road Transport Corporation and the allegation against him is that on 9.9.1980 at about 6.10 a.m. he drove K.S.R.T.C. bus KLX 1285 in a rash and negligent manner through the National Highway and caused it to hit against one Sivanandan near Kaichundipalaka Mukku in Karunagappally causing grievous hurt to him and resulting in his instantaneous death. The First Class Magistrate convicted him under both counts and sentenced him under section 304-A to imprisonment till the rising of the Court for the day and to pay a fine of Rs.500/- and in default of payment to undergo imprisonment for one month. For the offence under section 279 he was sentenced to pay a fine of Rs.100/- and in default to suffer imprisonment for 7 days. The conviction and sentences were on 21.12.1981. 2. Against the conviction and sentence the revision petitioner filed Criminal Appeal No.12 of 1982 before the Sessions Judge, Quilon on 29.1.1982. On 4.2.1982 the sentence of imprisonment alone was suspended and fine was remitted. On 5.2.1982 the Sessions Judge issued notice to the revision petitioner presumably under section 399(1) of the Criminal Procedure Code in exercise of the suo motu revisional power to show cause why the sentence awarded by the Magistrate for the offences under sections 304-A and 279 of the Indian Penal Code should not be enhanced. The revision petitioner was directed to enter appearance on 17.2.1982. The suo motu revision was numbered as Crl.R.P.No.11 of 1982. The revision petitioner appeared on 17.2.1982. Thereafter Criminal Appeal No.12 of 1982 and Criminal R.P.No.11 of 1982 were posted to 3.3.1982. On that date there was no sitting. From the order sheet it is not seen that the case was adjourned to any other date. But it is seen that on 5.3.1982 the Sessions Judge took up the case, cancelled the bail bonds of the revision petitioner on account of his absence and issued non-bailable warrant and notice to the sureties. It is against this order that the revision petition has been filed. But it is seen that on 5.3.1982 the Sessions Judge took up the case, cancelled the bail bonds of the revision petitioner on account of his absence and issued non-bailable warrant and notice to the sureties. It is against this order that the revision petition has been filed. So also the revision petitioner challenges the authority of the Sessions Judge to take suo motu revision in the manner in which he has done. 3. I heard the revision petitioner's Counsel as well as the Public Prosecutor. From the records I was not able to find that the case has been posted to 5.3.1982. The previous posting was on 3.3.1982 and it is recorded that there was no sitting on that date. If the case was adjourned to any other date that would have been noted in the order sheet. Without any further posting the Sessions Judge seems to have taken up the case on 5.3.82 and passed the orders mentioned above. If there was no posting on 5.3.1982 the revision petitioner was not bound to appear on that date and his sureties had no duty to produce him also on that day. Evidently the order passed by the Sessions Judge on 5.3.1982 is irregular and illegal. 4. The main contention raised by the revision petitioner was that the Sessions Judge was not having the power to take up suo motu revision in the manner in which he has done. Section 399(1) of the Criminal Procedure Code, reads: “In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401.” Sub- section (1) of section 401 reads: “In the case of any proceeding the record of which has been called for by itself 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 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.” 5. There is difference between the revisional powers of the High Court under section 401(1) and the revisional powers of the Sessions Judge under section 399(1), both of which include suo motu revisional powers. It is true that under section 399(1) it is provided that the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401. Those are the powers mentioned in section 401 namely, “exercise of any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Sessions by section 307”. In dealing with the revisional powers of the High Court under section 401(1) what is stated is “in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge.” “Otherwise comes to its knowledge” is absent while describing the revisional powers of the Sessions Judge under section 399(1). What section 399(1) provides is only that the Sessions Judge may exercise revisional powers in the case of any proceeding the record of which has been called for by himself. Therefore, the Sessions Judge may not be entitled to invoke revisional jurisdiction by “otherwise comes to its knowledge”. The revisional jurisdiction of the Sessions Judge is limited to any proceeding, the record of which has been called for by himself. 6. This aspect of the matter has been considered by a Division Bench of this Court in State v. Baby State v. Baby (1981) K.L.T. 27. The Division Bench expressed the following opinion: “Powers of revision are conferred both on the High Court and the Sessions Judge. There is however, a marked difference between section 399(1) which deals with the revisional jurisdiction of the Sessions Judge and section 401(1) dealing with the powers of revision vested in the High Court. Under section 399(1) the Sessions Judge is competent to exercise powers of revision only in the case of any proceeding, the record of which has been called for by himself, either suo motu or on motion by somebody. The powers of the High Court under section 401 are wider. In addition to powers of revision in cases mentioned in section 399(1) the High Court is empowered to exercise powers of revision in cases which otherwise come to its knowledge. The powers of the High Court under section 401 are wider. In addition to powers of revision in cases mentioned in section 399(1) the High Court is empowered to exercise powers of revision in cases which otherwise come to its knowledge. The omission to include cases which otherwise come to his knowledge in section 399(1) has its own significance. It means that a Sessions Judge has power to exercise revisional jurisdiction only in a proceeding, the record of which has been called for by himself and not in cases which come before him in the ordinary course of procedure. In the instant case, the records were not called for by the Sessions Judge but they were sent to that Court for trial of the case based on the committal order. The learned Second Additional Sessions Judge was therefore correct in his view that he had no power to exercise revisional jurisdiction in the instant case.” 7. Though that case happened to be decided in a different context, the principle laid down is a general one and it is applicable to the facts of the present case also. In that case the records came to the Sessions Judge by committal by the Magistrate. In this particular case when the suo motu revisional power was exercised on 5.2.1982 the records were not with the Sessions Judge either by himself calling for it or otherwise. He had only the appeal memorandum and copy of the judgment produced along with it by the appellant-accused. From the papers it is seen that records were received by the Sessions Judge only on 9.3.1982. Therefore, evidently this is a case in which the suo motu revisional power was exercised without the records being called for by the Sessions Judge. 8. The same view has been expressed by the Karnataka High Court in the decision in Siddegowda v. K. Siddegowda Siddegowda v. K. Siddegowda (1976) Crl.L.J. 1967, when it held: “If the Sessions Judge has to exercise powers under section 399, the records must have been called for by himself. If the records of any proceeding come to the knowledge of the Sessions Judge in a manner otherwise than by calling for the records by the Sessions Judge, he cannot exercise the powers under section 399. If the records of any proceeding come to the knowledge of the Sessions Judge in a manner otherwise than by calling for the records by the Sessions Judge, he cannot exercise the powers under section 399. The words ‘called for by himself’ occurring in section 399(1), cannot however, be taken to mean ‘suo motu’ and not on the filing of a revision petition by an aggrieved party. This aspect is absolutely clear when sub- section (3) of section 399 is taken into consideration, because sub- section (3) contemplates an application for revision being made before a Sessions Judge on behalf of any person and exercise of powers under section 399.” 9. In this case nobody moved the Sessions Judge under section 399(3) of the Criminal Procedure Code. Going by the principles laid down in the two decisions cited above it has to be found that the Sessions Judge has exceeded the limits of his jurisdiction in invoking the suo motu revisional powers in the manner in which he has exercised the same. Therefore, Criminal Revision Petition No.11 of 1982 has to be quashed as being unauthorised. 10. In the result the Criminal Revision Petition is allowed. The order passed by the Sessions Judge on 5.3.1982 cancelling the bail bond of the revision petitioner and issuing non-bailable warrant to him and notice to the sureties will stand cancelled. The revision petitioner will be permitted to continue on bail on the same terms and conditions as ordered by the Sessions Judge previous to the cancellation of the bail bond. Notice to the sureties also will stand cancelled. All further proceedings in Criminal Revision Petition No.11 of 1982 also will stand cancelled. The learned Sessions Judge will take up Criminal Appeal No.12 of 1982 and proceed to dispose of the same on the merits within one month of receipt of records by him. The office will see that the records are forwarded to the Sessions Judge, Quilon immediately. The Revision Petitioner, in his capacity as the appellant before the Sessions Judge, Quilon in Criminal Appeal No.12 of 1982, will appear before the Sessions Judge on the 20th of this month. The Criminal Revision Petition is allowed. Issue carbon copy of this order to the parties on usual terms. Petition allowed.