Rajasthan High Court - Jaipur
Natwar Lal And Ors. vs State And Ors. on 23 April, 2008
Author: Deo Narayan Thanvi
Bench: Deo Narayan Thanvi
ORDER Deo Narayan Thanvi, J.
1. By this common order, the core controversy involved in all these revision petitions with regard to the scope and ambit of Section 397 Cr.P.C. (hereinafter referred to as the Code), which confers concurrent powers to the High Court as well as to the Sessions Courts with regard to calling the record and to examine proceedings of the inferior courts as to its correctness, legality or propriety, is being resolved. In the present revision petitions, the petitioners are aggrieved by the various orders of the Courts of Judicial Magistrates/Addl. Chief Judicial Magistrates and Chief Judicial Magistrates of the State and without approaching the court of Sessions for no reason, they have preferred revision petition directly to the High Court. Whether High Court should encourage such practice so as to put some check to warrant propriety, whereby, the orders of elders are respected in hierarchy, being the essential theme of common law based on customary rules and practice.
2. It is contended by the learned Counsel for the different petitioners on the basis of the pronouncements of the various citations that when there is a concurrent jurisdiction, the option is left with the party to chose the forum which he wishes. It is also contended that when the petitioners have first chosen the remedy of filing revision petitions before the Sessions Court, they cannot file second revision in the High Court by virtue of bar contained in Section 397(3) of the Code and as by the various judgments of the Hon'ble Supreme Court and the High Courts when the remedy is exhausted by way of revision petition before Sessions Court under Section 397 of the Code, the High Court cannot exercise inherent powers under Section 482 Cr.P.C. Therefore, to avoid multiplicity of filing revision petition in the Sessions Court and then by way of petition under Section 482 Cr.P.C. it is neither desirable nor permissible to first approach the Sessions Court. According to the learned Counsel for the petitioners second revision was permissible to the High Court only as per the old Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code).
3. Before discussing various citations referred, it will be relevant to refer the provisions contained in Section 397 and Section 482 of the Code, which reads as under:
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 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.
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 Subsection (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.
482. Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
4. While disposing revision petition under Section 397 of the Code this Court has earlier held that by virtue of Section 397 of the Code, there is no prohibition for approaching the High Court in the first instance in the following cases namely; Prabhu Chawla and Ors. v. Shivnath Soni and Anr. reported in 1988(2) RLR 293, Moda Ram and Ors. v. Prithvi Raj reported in 1984 WLN 364, Om Prakash and Ors. v. State of Rajasthan and Ors. reported in 1987(2) WLN 661, Chijan Das v. State of Rajasthan and Ors. reported in 1998 (2) RCC 57 and Reserve Bank of India v. Ronak Singh and Ors. reported in 2001 Cr.L.R.(Raj.) 895. The next two citations are of the Hon'ble Supreme Court which are of Jagir Singh v. Ranbir Singh and Anr. and Central Bureau of Investigation v. State of Gujarat reported in (2007) 3 SCC (Cri) 65, wherein, it has been held that there is no bar for High Court to entertain revision petition directly.
5. Having given thoughtful consideration, it is revealed that the learned Single Judges of this Court in Moda Ram's case (supra), Chijan Das's case (supra) and Reserve Bank of India's case (supra) have basically relied upon the decision of the various High Courts on the question of maintainability of the revision and also on the Hon'ble Supreme Court's judgment in Jagir Singh's case (supra). I have minutely gone through this judgement of the Hon'ble Supreme Court, in this case, the order of maintenance was passsed on 19.5.73 under Section 488 of the Old Code by the Magistrate against appellant Jagir Singh who filed the revision petition before the Sessions Judge and the Sessions Judge with the consent of the parties referred the matter to the High Court, which was accepted. Thereafter, the new Criminal Code of Procedure came into force in 1974 and the appellant made an application before the Magistrate under Section 127 of the Code for cancellation of the order of maintenance on the ground of his son being attended majority. The learned Magistrate allowed the application under Section 127 of the Code on 9.5.75 against which a revision petition was filed before the learned Sessions Judge which was dismissed on 12.3.76. Then, Ranbir Singh filed a revision petition before the High Court of Punjab and Haryana, which was allowed on 5.12.77 and against that order of the High Court, appellant Jagir Singh preferred Special Leave before the Hon'ble Supreme Court under Article 146 of the Constitution. While allowing the appeal of Jagir Singh, it was held that second revision to the High Court is neither permissible under Section 397(3) of the Code nor that revision can be treated against the order of the Sessions Judge by the High Court, nor High Court can correct the error under Article 227 of the Constitution. In the above circumstances, the Hon'ble Supreme Court simply said that Section 397(3) is to prevent multiple exercise of revisional powers and to secure early finality to orders and aggrieved person once exercises the option, he is precluded from invoking revisional jurisdiction of the other authority. The Hon'ble Supreme Court while holding revisional application to the High Court to be incompetent further quoted the observations of Abbott C.J. In Fox v. Bishop of Chester reported in (1824) 2 B & C 635 as under:
provisions of an act of Parliament shall not be evaded by shift or contrivance...and also following words of (Maxwell, 11th dition, page 109, "to carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.
Thus, in the cited case of Jagir Singh, the Hon'ble Supreme Court has not touched the issue of propriety in filing revision in the High Court directly.
6. The Hon'ble Supreme Court in the case of Pranab Kumar Mitra v. State of West Bengal reported in AIR 1959 SC 144 has discussed the scope of revisional powers of the High Court in the following words:
deed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigation, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. The High Court is not bound to entertain an application in revision, or having entertained one, to order substitution in every case.
7. The above authority of the Hon'ble Supreme Court was the base in a revision petition filed under Section 397 of the Code directly to the High Court before the learned Single Judge of Bombay High Court in Padmanabh Keshav Kamat v. Anup R. Kantak and Ors. reported in 1999 Cri.L.J. 122, wherein at paras 11 and 12, it has been held as under:
When the proceeding is maintainable by two different Courts, one being inferior or subordinate to the other, then it is certainly a question of propriety, particularly for the superior Court, as to whether it should entertain such a proceeding which could have been filed in the lower Court. However, when no special circumstances which required the petitioner to bypass the forum of the Sessions Judge and rush directly to the High Court, are pointed out, then the High Court should not entertain revision application which can be entertained and decided by the Sessions Judge. Exercise of revisional powers is not a matter of course but it is a matter of rare and sparing use. When two Forums, are available to the petitioner for getting redressal of the alleged wrong, then it will certainly be more appropriate for him to first approach the lower forum. It is certainly within the discretion of the higher forum, that is, High Court to consider whether it should entertain or not such a revision application which can lie before the Sessions Judge. Mere fact that the dispute between the parties had once come before High Court cannot be regarded as a special or exceptional circumstances justifying the entertainment of revision application by High Court.
8. In the above case, the judgment of Madhavlal v.Chandrashekhar reported in 1976 CRI. L.J. 1604 was also discussed as cited by learned Counsel for the petitioners and it was held that there were special and exceptional circumstances in the way justifying filing revision petition directly to the High Court.
9. In this Padmanabh Keshav Kamat's case (supra), the observations of the learned Single Judge (Hon'ble Mr. Justice R.M.Lodha) as he then was in Bombay High Court in the case of Tejram Mahadeorao Gaikwad v. Smt. Sunanda Tejram Gaikwad reported in 1996 Cri. L.J. 172, were also quoted as under:
It is undoubtedly true that Section 397 of the Code of Criminal Procedure confers jurisdiction of revision concurrently on the Court of Sessions as well as the High Court, but it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the Superior Court is made out. Since the applicant has come directly to the High Court, though he could have filed the revision before the Sessions Judge and there are no exceptional reasons, the revision application deserves to be dismissed on this count alone. This Court does not encourage filing of revision application under Section 397 of the Code of Criminal Procedure directly before this Court it it could be challenged in revision before the Sessions Court having jurisdiction of revision over the matter.
10. In the light of the observations of the Hon'ble Supreme Court in Pranab Kumar Mitra's case (supra) and Jagir Singh's case (supra), this Court in the above cited cases have not touched the issue about the propriety of filing revision petition directly to the High Court against the order of Magistrates, though, the judgment of the Hon'ble Supreme Court in Jagir Singh's case (supra) was referred to this Court in the cases of Moda Ram, Chijan Das and Reserve Bank of India (supra). Likewise, the earlier judgments of this Court in Om Prakash's case and Prabhu Chawla's case were also not discussed in the above light. It simply laid down that there is no bar on filing direct revision petition in the High Court.
11. In Mohan Lal and Ors. v. Prem Chand and Ors. reported in AIR 1980 Himachal Pradesh 36, the full Bench of the Himachal Pradesh High Court and in the State of Madhya Pradesh v. Khizar Mohammad and Ors. reported in 1997 Cri.L.J. 549, the Madhya Pradesh High Court has not discussed the scope of Section 397 of the Code in the light of the observations made by the Hon'ble Supreme Court in Pranab Kumar Mitra's case. In S. Sathyanarayana v. State reported in 2003(3) Crimes 278 Karnataka High Court ofcourse discussed the scope of revision while referring the decisions of Pranab Kumar Mitra's case (supra) and Jagir Singh's case (supra), but ultimately held that there is no bar for the High Court to entertain and exercising its revisional jurisdiction where it is not exercised by the Sessions Judge by observing that the statutory provisions takes prudence over the rule of practice.
12. In Central Bureau of Investigation v. State of Gujarat reported in (2007) 3 SCC (Cri.) 65, the CJM passed the order directing the CBI to investigate the matter on 29.9.99. The CBI moved an application for recalling the order but this application was rejected on 26.10.99. Then the CBI directly filed the application to the High Court against both the orders which was dismissed on the ground of bypassing Sessions Court, though the Sessions Judge was moved as directed by the High Court and by order dated 17.5.2007 the orders passed by CJM were set aside, and the CBI was directed to investigate the case with special cost and criticism, against which, special appeal was filed before the Hon'ble Supreme Court by the CBI, which was allowed by quashing the order of the High Court with the following observations:
Of course, where it is shown that the investigating agency is not doing proper investigation and/or that there is reason to believe that there is laxity in the investigation, a direction may be given to the CBI to investigate the matter in appropriate cases. This case is not one where any complexity was involved. It was a routine case of theft of Muddamal property. The learned Sessions Judge, therefore, rightly appears to have set aside the orders passed by the learned Chief Judicial Magistrate. The High Court had no basis to doubt the bonafides of the CBI in moving the application before it under Section 397 Cr.P.C. There was no bar for the High Court to entertain the said petition. The criticism levelled against the CBI and its officers and cost imposed do not have any legal sanction. They are accordingly set aside.
13. Thus, from the above observations, it is clear that there is of-course no bar for filing revision directly to the High Court under Section 397 of the Code against the order of the Magistrate but when concurrent jurisdiction is given specially under such circumstances when both are superior courts one to the Magistrate and another to the Sessions, then the propriety demands that elder superior court in Hierarchy must be first approached. This is the customary common law as the first elders are always respected.
14. The scope and ambit of Section 397 of the Code is not only confined to the correctness or legality of the order but also to its propriety. Both the court of Sessions and Magistrate are inferior to the High Court and courts of Judicial Magistrate are inferior to the court of Sessions Judge. When an order is passed by the Sessions Judge, the only remedy left with the aggrieved party is to approach the High Court under Section 397(1) of the Code to question correctness, legality or propriety but when the same is passed by a Magistrate, though power lies to both the Sessions and the High Court but as a matter of prudence and propriety, it will be appropriate to first approach the lower forum except in rare and special circumstances. Such special circumstances may be where the Sessions Judge has directly or indirectly participated in the enquiry or investigation or trial or through his any action or order interest of justice demands that High Court alone should interfere in the order of the Magistrate.
15. Though, there are various sections in the Code of Criminal Procedure where the concurrent powers have been given like anticipatory bail under Section 438 Cr.P.C and regular bail under Section 439 Cr.P.C. and also in Constitution of India with regard to writ jurisdiction to the Hon'ble Supreme Court under Article 32 or before the Hon'ble High Court under Article 226 of the Constitution, but in the matters of bail and writ jurisdiction, the lower forum is always chosen. In my humble view, had the legislature amended Section 397 of the Code in the light of the amendment made in Section 378 in appeal against the acquittal by Act 25 with effect from 23.6.2006, this controversy could have been avoided. In amended Section 378, the power to file appeal against the order of acquittal passed by the Magistrate has been given to the Sessions and of the Sessions to the High Court when a case is instituted on police report.
16. In view of the above discussion, the approach taken by the Bombay High Court in Padmanabh Keshav Kamat's case (supra), which is based on the judgment of the Hon'ble Supreme Court in Pranab Kumar Mitra's case (supra) is a correct proposition of law with regard to the scope and ambit of Section 397 of the Code and on the basis of this, I have no hesitation in coming to the conclusion that when the two forums are available, then certainly it is a matter of propriety for the party to first approach the lower forum, except in rare and special circumstances. By doing this, the party getting order from Magistrate will get double remedy, firstly he will approach the court of Sessions in revision, which is a highest court of criminal trial and after examining the legality, propriety and correctness of the order of sentence, the Sessions Court comes to the conclusion that the order requires no interference under Section 397 of the Code, then the party has still second remedy to approach the High Court under Section 482 Cr.P.C. if both the courts below have passed such orders which either cannot give effect to the orders in this Code or results in abuse of the process of law or otherwise does not secure the ends of justice. Thus, the scope of Section 397 and 482 of the Code are all together different. However, these two remedies cannot be availed simultaneously or one after the other in the High Court. Party filing a petition under Section 397 before High Court cannot invoke the jurisdiction under Section 482 of the Code. Power under Section 482 of the Code is sparingly used and that too under the above referred circumstances. It will be relevant to refer the cases cited in this regard.
17. In Madhu Limaye v. State of Maharashtra reported in AIR 1978 SC 47, it has been held that Section 397 Sub-section (2) cannot lower the scope of Section 482 of the Code but such cases should be few and far between while exercising the jurisdiction of the High Court very sparingly.
18. In Dharampal v. Ramshri reported in 1993 Cri.L.J. 1049, the Hon'ble Supreme Court held that necessary powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. In that case the High Court entertained the second revision as a petition under Section 482 of the Code. This was the case of attachment of property in a proceeding under Section 145 of the Code and on the merits, the High Court was not right in questioning the orders by taking different view.
19. In Ganesh Narayan Hegde v. S.Bangarappa reported in 1995 SCC 441, it has been held that:
While it is true that availing of the remedy of the revision to the Sessions Judge under Section 397 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the compliant is allowed to proceeded with, it would amount to abuse of process of court or that the interests of justice otherwise call for quashing of the charges.
20. From the above discussion, the contention of the learned Counsel for the petitioners that after invoking jurisdiction of the Sessions Judge under Section 397 of the Code, there is bar of petition under Section 482 of the Code is devoid of force as it is always open to the High Court to correct the impugned order passed at any stage i.e. right from filing complaint or FIR till judgment in any inquiry, investigation & trial in any of the three circumstances discussed above namely, (i) when it is necessary to give effect to the order under this Court or (ii) to prevent abuse of the process of the court or (iii) to secure the ends of justice, whereas, barring interlocutory order under Sub-section (2) of Section 397, the revisional court can call for the record of any inferior court to look into the correctness, legality or propriety of the order or sentence including regularity of proceedings under Section 397 of the Code. Thus, this Court cannot interfere in the above revision petitions, which have been filed against the order of Magistrates without first approaching to the next higher court i.e. the court of Sessions under Section 397 of the Code as no special and exceptional reasons have been assigned for filing the revision petition directly in this Court.
21. Consequently, these revision petitions are dismissed. However, the parties are at liberty to file fresh revision petition before the learned Sessions Judge and in that event the period taken during these revision petitions will not come in the way for the purpose of limitation.