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2009 DIGILAW 6 (GAU)

Techi Teli v. State of Arunachal Pradesh

2009-01-05

I.A.ANSARI, P.K.MUSAHARY

body2009
JUDGMENT I.A. Ansari, J. 1. This writ appeal has raised an important question and the question is : Whether a High Court can, suo motu, exercise its revisional jurisdiction against a finding of acquittal, recorded by any inferior criminal court, situated within its local jurisdiction, if no appeal has been preferred against the judgment and order of acquittal? This question, in turn, gives rise to yet another question, which is fundamental in nature, and the question is : Whether a High Court can, on its own motion, call for and examine the record of any proceedings from any inferior criminal court, situated within its local jurisdiction, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed therein, even if there are provisions for appeal against such a finding, Sentence or order, but no appeal has been preferred? 2. We have heard Mr. K. Ete, learned Counsel for the appellant, and Mr. R.H. Nabam, learned Senior Government Advocate, appearing on behalf of the State respondents. 3. The material facts and various stages, which have led to this appeal, may, in brief, be set out as follows: (i) While the appellant was serving as a Constable (driver), at Yazali Police Station, which falls under Lower Subansiri District, an FIR was lodged by one Gurung Tang and his daughter alleging, inter alia, that on the night of 13.6.1997; the present appellant had broken into the Government residential quarter of the informant and subjected his daughter to rape. Based on this FIR, Yazali Police Station Case No. 10/1997 was registered under Section 454/376, IPC. (ii) While the case was still pending for investigation, a disciplinary proceeding was initiated against the appellant on the accusation that on 14.6.1997, at about 1600 hrs., a written complaint was lodged by Miss Anjana Basumatary, aged about 14-15 years, alleging to the effect that on the night of 13.6.1997, at about 10.30 p.m., the present appellant had forcibly taken her out of her house and committed rape on her. The appellant submitted his written statement. As his written statement was not found satisfactory, an inquiry was ordered. A regular departmental inquiry was accordingly conducted. The appellant submitted his written statement. As his written statement was not found satisfactory, an inquiry was ordered. A regular departmental inquiry was accordingly conducted. The Inquiry Officer, having found the appellant guilty of the charge levelled against him, submitted a report accordingly and, having accepted the report, the disciplinary authority, namely, Superintendent of Police, Lower Subansiri District, passed an order, on 25.3.2002, holding appellant guilty of the charge framed against him and awarded penalty of dismissal from service with immediate effect. Aggrieved by the order dismissing him from service, the appellant preferred an appeal to the superior authority, but the appeal failed. (iii) In the meanwhile, the police submitted, on completion of investigation, charge-sheet against the present appellant under Sections 457/376/506/511, IPC. The appellant was, then, put to trial on a charge framed against him under Section 376, IPC. Upon completion of the criminal trial, the appellant was acquitted by judgment and order, dated 29.5.2008, passed, in Sessions Case No. 51/2002(FTC), by the learned Additional Sessions Judge (FTC), Yupia. (iv) After his acquittal, the appellant filed an application for review of the order, whereby he had been dismissed from service. This review application too yielded no favourable result. The appellant, then, with the help of a writ petition, which gave rise to WP(C) No. 380 (AP)/2008, challenged the order of the dismissal and also the orders passed on appeal as well as review. In this writ petition, the record of the said Sessions Case was called for and, on hearing the learned Counsel for the present appellant, two separate orders were passed by a learned Single Judge of this court, which are reproduced hereinbelow: 457/376/506/511, IPC and the connected record has been produced before me, I have perused the connected record as well as the statements of the witnesses. Upon perusal of the materials available in the court, I deem it fit and proper to exercise the suo motu power of revision to examine and scrutinize the legality and propriety of the impugned judgment and order passed by the learned Sessions Judge, Yupia, in the aforesaid case. Accordingly, Registry is directed to register the case against the accused as Criminal Revision. Issue notice to the accused/respondent returnable within six weeks. Registry shall send the notice by registered post. Accordingly, Registry is directed to register the case against the accused as Criminal Revision. Issue notice to the accused/respondent returnable within six weeks. Registry shall send the notice by registered post. WP(C) No. 380(AP)/2008 28.11.2008 In a separate order, the court has exercised the suo motu power of revision against the order of acquittal of the petitioner in a Sessions Case No. 51/02(FTC) acquitting the petitioner under Section 457/376/509/511, IPC. Let this case be listed alongwith the said revision (sic) since the very basis of the claim of the petitioner is under scrutiny in a revision as indicated above. 4. Appearing, on behalf of the appellant, Mr. K. Ete, learned Counsel for the appellant, has, now, submitted that against the judgment and order, dated 29.5.2008, passed, in Sessions Case No. 51/2002(FTC), by the learned Additional Sessions Judge, Yupia, acquitting the present appellant, the State could have preferred an appeal, but no appeal was preferred by the State and when an order of acquittal is an appealable order and no appeal was preferred against such an order of acquittal, the learned Single Judge could not have, suo motu, exercised the power of revision as contained in Section 401, Cr.P.C. In substance, what Mr. Etc contends is that when there provision for appeal has been made in the Code of Criminal Procedure and yet no right of appeal has been exercised by the State, the High Court could not have exercised its revisional jurisdiction under Section 401. 5. In order to correctly appreciate the submissions noted above, one has to determine the scope and ambit of the revisional power of a High Court under Section 397 read with Section 401 of the Code of Criminal Procedure ('the Code'). Section 397 is, therefore, quoted hereinbelow: 397. Calling for records to exercise powers of revision. 5. In order to correctly appreciate the submissions noted above, one has to determine the scope and ambit of the revisional power of a High Court under Section 397 read with Section 401 of the Code of Criminal Procedure ('the Code'). Section 397 is, therefore, quoted hereinbelow: 397. 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 situated 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. Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-section and of Section 398. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, 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 the other of them. 6. Close on the heels of Section 397, Section 401 reads as under: 401. High Court's power 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) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this 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 appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 7. A careful reading of Section 401 read with Section 397 makes it clear that the High Court can call for and examine the record of any proceeding before any inferior criminal court, situated within its local jurisdiction, for the purpose of satisfying itself 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. There is nothing in Section 397, which indicates as to when the record for such examination, as aforesaid, can be called by the High Court. When the Legislature has not put any fetters on the powers of the High Court to call for the records of any proceedings as hereinbefore mentioned, we cannot read any limitation on the powers of the High Court in calling for and examining records. Considered thus, it is clear that in exercise of its criminal revisional jurisdiction, a High Court may, on its own motion, call for and examine the record of any proceeding in order to satisfy itself with regard to the correctness, legality or propriety of any finding, sentence or order, recorded or passed therein. Considered thus, it is clear that in exercise of its criminal revisional jurisdiction, a High Court may, on its own motion, call for and examine the record of any proceeding in order to satisfy itself with regard to the correctness, legality or propriety of any finding, sentence or order, recorded or passed therein. As a corollary, it further follows that it is not necessary that in order to enable a High Court to exercise its power of criminal revision, the High Court must receive an application seeking High Court's exercise of power to call for and examine the record. 8. That a High Court can exercise revisional jurisdiction, on its own motion, is also evident from the fact that Sub-section (1) of Section 401 shows that apart from the fact that the High Court has the power to call for records for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, by any inferior court, the High Court can exercise such power of examination, when such a matter comes to the knowledge of the High Court. This position becomes crystal clear from the expression "or which otherwise comes to its knowledge". It is, therefore, not necessary that to enable a High Court exercise its power of revision, it must have received a formal petition seeking exercise of its revisional jurisdiction. For exercise of the power of revision, it is wholly immaterial how the High Court has come to know that a finding recorded, a sentence passed or an order made, by any inferior court, subordinate to it, needs to be examined for the purpose of determination of correctness, legality or propriety thereof. 9. Sub-section (4) of Section 401 shows that where an appeal has been provided by the Code and no appeal has been brought, the High Court shall not entertain revision at the instance of the party, who could have appealed. Thus, the limitation, which has been imposed by Sub-section (4) of Section 401, on the High Court's exercise of revisional jurisdiction, does not really apply to the High Court's power of suo motu revision. What Sub-section (4) really prohibits is that a revision at the instance of a party, which could have preferred an appeal and has chosen not to prefer appeal, shall not be entertained. What Sub-section (4) really prohibits is that a revision at the instance of a party, which could have preferred an appeal and has chosen not to prefer appeal, shall not be entertained. Sub-section (5) of Section 401, however, makes it clear that where an appeal lies, but an application for revision has been made and the High Court is satisfied that such application for revision was made under erroneous belief that no appeal lies thereto, the High Court may treat the application for revision as a petition of appeal if interest of justice so warrants and deal with the matter accordingly. 10. What emerges from the above discussion is that the High Court's power of suo motu revision is not dependant on the fact as to whether an appeal has or has not been preferred against an appealable finding, sentence or order. What is really required is the High Court's opinion that the correctness, legality or propriety of a finding, sentence or order, recorded or passed, needs to be examined. Once such an opinion is formed, there is no limitation on the power of the High Court to examine, on its own motion, the correctness, legality or propriety of a finding, sentence or order as aforesaid. In short, thus, it is possible to exercise suo motu revisional power by a High Court against a finding, sentence or order, which is appealable, but no appeal has been preferred. 11. In fact, it may be pointed out that the basic difference between the High Court's exercise of civil and criminal revisional jurisdiction lies in the fact that the exercise of the power of civil revision, under Section 115 of the Code of Civil Procedure, is not possible in respect of any decision if such a decision is appealable; whereas exercise of criminal jurisdiction is possible by the High Court against a finding, sentence or order even when the finding, sentence or order is appealable, but no appeal has been preferred. The reason for such a difference between civil and criminal revision is that in a criminal case, besides the victim and the accused, the interest of the society, as a whole, is involved, which may warrant exercise of power of revision suo motu. The reason for such a difference between civil and criminal revision is that in a criminal case, besides the victim and the accused, the interest of the society, as a whole, is involved, which may warrant exercise of power of revision suo motu. It has, therefore, been made possible to exercise suo motu power of revision in respect of a criminal case: whereas a civil case, being essentially inter parte, no provision for suo motu exercise of power of revision has been made. 12. In the present case, the learned Single Judge has mentioned in the order, dated 28.11.2008, that the record of the Sessions Case was called for, on 17.11.2008, by the High Court to satisfy itself about the legality and propriety of the judgment and order, whereby the accused stood acquitted, but upon perusal of the available materials, the High Court deems it fit to examine the legality or propriety of the judgment and order aforementioned. We do not find that the order, which has been passed, on 28.11.2008, exercising suo motu revision, could not have been passed in the writ petition, which the appellant had filed. In such circumstances, we do not see any reason to entertain this writ appeal. 13. Before parting with the record, we may, however, make it clear that Mr. K. Ete, learned counsel, sought to contend before us that even on merit, the High Court could not have decided to examine the judgment and order, dated 29.5.2008, aforementioned. Suffice it to point out, in this regard, that the High Court has merely decided to examine the correctness, legality or propriety of the finding of acquittal recorded in favour of the appellant and the High Court has not till now given any specific finding as to whether the acquittal of the accused was or was not warranted in the facts and circumstances of the present case. This apart, the exercise of power, under Section 401, by the learned Single Judge, in the instant case, was the exercise of power by the High Court itself and we are not appellate or revisional authority against the exercise of power under Section 401 of a Single Judge of this High Court. An intra court appeal against High Court's exercise of criminal revisional jurisdiction is not permissible. 14. In view of what have been pointed out above, this appeal fails and the same shall stand dismissed. 15. An intra court appeal against High Court's exercise of criminal revisional jurisdiction is not permissible. 14. In view of what have been pointed out above, this appeal fails and the same shall stand dismissed. 15. No order as to costs. Appeal dismissed.