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2001 DIGILAW 781 (MP)

SANJEEV MISHRA v. MANOJ JAIN

2001-10-31

N.K.JAIN

body2001
N. K. JAIN, J. ( 1 ) THIS petition under Section 482 of the Code of Criminal Procedure is directed against the judgment dated 9-8-2001, passed by IIIrd Addl. Sessions Judge, Indore, in Criminal Revision No. 448/2000, dismissing petitioners' aforesaid revision for enhancement of sentence solely on the ground that the Sessions Court has no power to enhance the sentence. ( 2 ) ON a complaint made by the petitioners under Section 138 of the Negotiable Instruments Act, accused-respondent Manoj Jain was convicted and sentenced to pay fine Rs. 2,500/- as also the compensation by Judicial Magistrate, First Class, Indore, in Criminal Case No. 31/1999. Dissatisfied with the quantum of sentence, complainant-petitioners preferred revision (Cr. Rev. No. 546/2000) before this Court. In the meanwhile, the accused-respondent filed appeal (No. 221/2000) against his conviction in the Sessions Court, Indore, which was ultimately made over to IIIrd ASJ, Indore. On being informed about filing of the appeal by the accused-respondent, this Court vide its Order dated 16-11-2000, transferred the petitioners' aforesaid revision to the Sessions Court for being heard together with the appeal filed by the respondent. The said revision was then registered in the Court below at No. 448/2000. Learned ASJ by a common judgment dated 9-8-2001 dismissed both the appeal of the respondent and the revision of the complainant-petitioners. While the appeal was dismissed on merits, the revision was dismissed solely on the ground that the Sessions Court has no jurisdiction to entertain a revision for enhancement of sentence. The learned ASJ placed reliance on a decision of this Court in Kalloo Khan, 2000 (3) MPLJ 384 : (2001 Cri LJ 873 ). ( 3 ) I have heard Mr. R. S. Chhabra, learned Counsel for the petitioners and Mr. M. D. Sinha, learned Counsel for the respondent. ( 4 ) THIS revision in my judgment must succeed. The ratio in Kalloo Khan (supra), I am afraid, was not available in the instant case. ( 5 ) SECTION 397 empowers the High Court or any Sessions Court to call for and examine the records of an inferior Court for the purpose of satisfying themselves as to the legality and regularity of any proceedings or the order made therein. On such examination when any illegality or irregularity is found, the machinery for exercise of power is provided in Sections 398 to 402. On a reading of Ss. On such examination when any illegality or irregularity is found, the machinery for exercise of power is provided in Sections 398 to 402. On a reading of Ss. 397, 399, 401 and 402 in juxtaposition, it will be seen that a concurrent jurisdiction is vested on the High Court and the Sessions Court in the matter of revision u/s. 397 (1 ). ( 6 ) IN order to appreciate the aforesaid legal position, it would be appropriate to read Ss. 399 and 401 of the Code which provide for the powers of the Sessions Court and the High Court in revision : 399. Sessions Judge' powers of revision.- (1) 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. (2) to (3 ). . . . . . 401. High Court's powers of revision.- (1) 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. (2) to (5 ). . . . . . ( 7 ) IT will be thus seen that the Sessions Court has all the powers which may be exercised by the High Court under sub-section (1) of Sec. 401. Under sub-section (1) of Sec. 401, the High Court can exercise powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Sessions by Section 307. The only rider is that where under the Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have applied. ( 8 ) AT this stage it is necessary to read Ss. 377 and 386 of Cr. P. C. which deal with appeal against sentence and powers to be exercised in such an appeal. ( 8 ) AT this stage it is necessary to read Ss. 377 and 386 of Cr. P. C. which deal with appeal against sentence and powers to be exercised in such an appeal. Section 377 provides that the State Government may in any case of conviction on a trial held by any Court other than a High Court present an appeal to the High Court against the sentence on the ground of its inadequacy. Clause (c) of Sec. 386 further empowers the High Court to alter a sentence with or without altering the finding of guilt, so as to enhance or reduce the same. This very power of the High Court u/s. 401 can with the aid of Sec. 399 (1) be exercised by the Sessions Court. ( 9 ) AS already pointed out, no revision would lie at the instance of a party who could have appealed. In the instant case, no appeal against the sentence could be preferred by the complainant-petitioners as an appeal against sentence u/s. 377 can be presented by the State Government alone. The prosecution in the instant case was launched by a private party not by the State Government and there was thus no question of the State Government preferring any appeal in the matter. Under the circumstances, the complainant-petitioners were fully empowered to prefer revision against the sentence either in the High Court or in the Sessions Court, as provided by Ss. 397, 399 and 401, Cr. P. C. The learned ASJ clearly misconstrued the aforesaid legal provisions in holding that no revision against sentence lies in the Sessions Court. In fact an aggrieved party has been given an option to choose any one of the two forums, for filing revision (see Kesavan, AIR 1978 Ker 131 : (1978 Cri LJ 743) (FB) ). ( 10 ) ). In another decision in T. Jayarajan, 1999 Cri LJ 1856, the Kerala High Court has clearly held that the revisional jurisdiction of Sessions Court is placed at par with the High Court and in a case where the State Government has not preferred any appeal u/s. 377 challenging inadequacy of the sentence (which in the instant case could not have been preferred), the revision filed by the complainant to enhance the sentence is maintainable in the Sessions Court. I respectfully agree with the view taken by the Kerala High Court. I respectfully agree with the view taken by the Kerala High Court. ( 11 ) DECISION in Kalloo Khan (supra), only dealt with the power of Sessions Court in appeal and held that in absence of appeal by the State Government for enhancement, the appellate Court cannot in an appeal against conviction, enhance the sentence. The point involved in the instant case is quite different and the view taken by the High Court below is wholly unsustainable. ( 12 ) THIS revision thus succeeds and is allowed and the impugned judgment insofar as it dismisses the revision filed by the petitioners, is set aside. The revision shall now go back to the Sessions Court below for disposal in accordance with law. Revision allowed. .