Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 306 (AP)

MANOJ DUTT PRASAD v. State Of A. P.

2001-03-22

R.RAMANUJAM

body2001
R. RAMANUJAM, J. ( 1 ) HEARD the learned Counsel for the petitioner and the learned Public prosecutor. ( 2 ) THE short question that arises for consideration in this criminal petition is: whether a revision petition can be dismissed by the revisional Court under Section 397 of Cr. PC for default? ( 3 ) THIS question is no longer res intergra. But before I refer to those decisions, the relevant facts may be briefly stated: crl. RP No. 39 of 2001 was filed by the petitioner herein to set aside the order in crl. MP No. 683 of 2001 in CC No. 1748 of 1999 dated 23-1-2001. That petition was filed seeking to recall PW1 for farther cross- examination. Learned XI Metropolitan magistrate, Secunderabad dismissed that application. Challenging the same, the petitioners filed the said revision petition. ( 4 ) LEARNED Counsel for the petitioners contended that when the case was called for hearing on 7-3-2001, the petitioner s counsel could not present before the trial court due to traffic jam at the Secretariat. By the time, he reached the Court, the revision petition was called and dismissed stating that "the revision petitioner s Counsel absent, no representation and hence the petition is dismissed". ( 5 ) CONSIDERING the scope of Section 397 of the Code, this Court in Gajjala Samuel v. Gajjala Lalamma and another, 1999 (1) ald (Crl.) 675, held thus:"this provision gives a power to the sessions Judge and to the High Court for calling for the records for the purpose of satisfying itself as to the correctness, legality or propriety for any finding, sentence or order recorded or passed, or to satisfy itself as to the regularity of any proceedings of such inferior Court. The duty is cast on the Sessions Judge and the High Court before passing an order in a revision proceedings to satisfy itself about the correctness of the order passed in which the record has been summoned. That leaves no room for the Sessions judge to dismiss the criminal revision in default. It is the party, who moved the court in revision, does not appear, the sessions Judge has no option but to examine the record and satisfy himself whether the revision is to be allowed or dismissed. That leaves no room for the Sessions judge to dismiss the criminal revision in default. It is the party, who moved the court in revision, does not appear, the sessions Judge has no option but to examine the record and satisfy himself whether the revision is to be allowed or dismissed. " ( 6 ) DEALING with the same question under the old Code i. e. , Criminal Procedure code 1898, this Court in S. N. Sharma v. State, 1971 Crl. LJ 1056 held:"having taken the revision on file and called for records of the proceedings before the Additional District Munsif, it was the duty of the learned Sessions judge to examine those records for the purpose of satisfying himself as to the correctness, legality or propriety of the order sought to be challenged before him regardless of the presence or otherwise of the petitioners when the matter was called on for hearing in his Court and he had no jurisdiction to reject the revision petition, when once it was admitted, for default. " ( 7 ) IN view of the aforementioned settled legal position, I have no hesitation to answer the question referred to above in negative. The impugned order cannot therefore be sustained and it is accordingly set aside. The matter is now remitted to the special Judge for trial of cases under essential Commodities Act-cum-III additional Metropolitan Sessions Judge, hyderabad for consideration on merits. ( 8 ) THE criminal petition is accordingly allowed.