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2008 DIGILAW 102 (JK)

Vijay Kumar v. Kaki

2008-04-03

K.S.RADHAKRISHNAN, NISAR AHMAD KAKRU

body2008
K.S. Radhakrishnan,C.J. 1. These matters have been placed before us by a learned Single Judge of this Court in view of the conflicting views expressed on the question whether Second criminal revision can be entertained and adjudicated under Section 435 of the Code of Criminal Procedure Samvat, 1989 by the High Court when a criminal revision against the order of the trial Magistrate has already been dismissed by the learned Sessions Judge? 2. Criminal Revision No. 43/2002 was filed before this Court against the order dated May 13, 2002 passed by the learned Additional Sessions Judge whereby criminal revision petition no. 108/2001 filed against the order dated March 13, 2001 of Munsiff Judicial Magistrate 1st Class Jammu was dismissed. Criminal revision petition no. 43/2002 came up for consideration before the learned Single Judge and a contention was raised that the same was not maintainable in view of the decision of this Court in Sardar Sardool Singh v. Teja Singh reported as 2001 KLJ 656, Mohammad Altaf Shah v. Mst. Mahmooda reported as 1995 KLJ 362; Pt. Som Dut v. Gurbaksh Singh reported as 1994 KLJ 204 and the judgment in criminal revision No. 63 of 2003, Sudesh Kumar v. Roop Chand. Contrary view taken by another learned Single Judge of this Court in State v. C. K. Gulhati reported as 1982 KLJ 285 holding that there is no provision in Section 435 of the Code of Criminal Procedure to warrant the conclusion that once a party had invoked the revisional jurisdiction of the Sessions Judge, it cannot again approach the High Court in the same jurisdiction, if unsuccessful before the Sessions Judge. The learned Judge took the view that the revisional jurisdiction of the High Court, even though concurrent with that of the Sessions Judge, has been kept unaffected under Section 435 of the Code with the result that a party which has first approached the Sessions Judge but without any success, can again approach the High Court in its revisional jurisdiction. 3. Learned Single Judge in C. K. Gulhatis case held that Section 435, as it stood then, did not disentitle a party to invoke the revisional jurisdiction of the High Court in preferring a Second revision even if he had moved the 1st revision before the Sessions Court. 3. Learned Single Judge in C. K. Gulhatis case held that Section 435, as it stood then, did not disentitle a party to invoke the revisional jurisdiction of the High Court in preferring a Second revision even if he had moved the 1st revision before the Sessions Court. But we may add a rider, that such a revisional jurisdiction under Section 435 as it stood then, could not have been invoked as a matter of right, since it was a suo motu power conferred on the Sessions Court as well as the High Court. True, there was no such provision in the unamended Section 435 to warrant the conclusion that once a party had invoked the revisional jurisdiction of the Sessions Judge, it could not approach the High Court with a request for invocation of its suo motu powers under Section 435. Under the unamended provision of Section 435, if an application in respect of any proceeding before any Judicial Magistrate other than the Chief Judicial Magistrate had been made under sub-section (1) either to the Sessions Judge or the Chief Judicial Magistrate, no further application would be entertained by either of them. Section 435 was substituted by a new section 435 under the Code of Criminal Procedure (Amendment) Act, 2006. Under sub-section (3) of Section 435 of the amended provision, if an application under this provision is made by any person either to the High Court or the Sessions Judge, no further application by the same person shall be entertained by either of them. But no such provision was made with regard to the concurrent jurisdiction of the High Court and the Sessions Judge. It is in such a situation, unamended provision of Section 435 enabled a party to move the High Court to invoke its jurisdiction under Section 435. Further, it may be noted, the amended provisions of Section 435(2) would not affect the inherent powers of the High Court under Section 561 A of the Code. Even if a second revision is barred under Section 435(3), the orders can be questioned under Section 561 A. 4. We may point out the provision of Section 404 to 439 must be read in conjunction since they are intertwined with revisional jurisdiction. Even if a second revision is barred under Section 435(3), the orders can be questioned under Section 561 A. 4. We may point out the provision of Section 404 to 439 must be read in conjunction since they are intertwined with revisional jurisdiction. Revisional powers is though very wide, are purely discretionary and normally exercised in exceptional circumstances, when there is manifest error on a point of law or glaring defect in procedure, consequently there has been a flagrant miscarriage of justice. 5. The question that, however, still crops up for consideration is as to whether the 2nd revision petition filed under Section 435 of the Code of Criminal Procedure be proceeded with after coming into force of the Code of Criminal Procedure (Amendment) Act, 2006 by which the second revision is statutorily barred. 6. Contention was raised that sub-section (3) of Section 435 would operate only prospectively and hence all the pending revisions filed before coming into force of the amended Act would be unaffected by the amendment and be disposed of as per the unamended provision. In order to appreciate the contention, we may extract the amended provision of section 435 which reads as under: "435. Calling for records to exercise powers of revision--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, industry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them"(emphasis added) 7. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them"(emphasis added) 7. Sub-section (3) of Section 435 specifically says that no further application by the same person shall be entertained by either of them. Undisputedly, after coming into force the abovementioned provision, no Second revision would be maintainable either before the High Court or before the Sessions Judge. The question that is to be decided by us is whether the revision petitions filed before coming into force the Criminal (Amendment) Act, 2006 would still be entertainable. 8. The object of Code of Criminal Procedure is to provide a mechanism for punishment of persons, who have committed any offence under the Penal Code or other substantial criminal law. Penal Code is a substantive law while Criminal Procedure Code puts in force its provisions. Code deals with the manner and the form in enforcing substantive law. Further, we may also bear in mind that there is a distinction between an amendment in substantive law and an alteration in procedural law. It is trite law that while a vested right under the Substantive law may not generally be taken away by an amendment of law made during the pendency of the action to enforce the vested right, no one has a vested right in a procedural law. Apex Court in K. Eapen Chako v. The Provident Investment Company (P.) Ltd., reported as AIR 1976 SC 2610 held that if the new Act affects matters of procedure only then, prima facie, it applies to all actions pending as well as future. Law is well settled that a litigant has no vested right in any matter or procedure and alteration in procedural law are generally held to be retrospective which applies to future as well as pending matters. 9. Criminal Procedure Code (Amendment) Act, 2006, has substituted Section 435 with a new provision. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision be deleted and a new provision be substituted. Right to file an appeal or revision is a statutory right and if that right has to be taken away, the law will have to be retrospective in effect. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision be deleted and a new provision be substituted. Right to file an appeal or revision is a statutory right and if that right has to be taken away, the law will have to be retrospective in effect. We are in this case is dealing with a procedural amendment by way of substitution which will operate only retrospectively which would mean that the said old provision does not exist as if it was never in the statue book from its very inception. Section 435 conferring revisional power on the High Court as well as on the Sessions Court is a procedural provision. When a procedural law is amended, it is trite law that it would act retrospectively unless a contrary intention is discernable in that statutory provision. The Criminal Procedure Code (Amendment) Act, 2006 does not indicate that sub-section (3) of Section 435 would only operate prospectively. In the absence of any specific stipulation, we are of the view that the said provision would operate retrospectively. 10. We are, therefore, of the view that on substitution of Section 435 by the Code of Criminal Procedure (Amendment) Act, 2006 it would operate retrospectively affecting pending Second revisions also. We, therefore, answer the reference by holding that no Second criminal revision would be maintainable either before this Court or the Sessions Court and the amendment affects pending second revisions as well before this Court and the Sessions Court. Reference is answered accordingly. Criminal revision petition no. 43/2002 and all other second revision petitions are held not maintainable and are, accordingly, dismissed.