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Revision

Powers of the High Court while dealing with the revisional jurisdiction are very limited as distinguishable from the appellate jurisdiction. The revisional court has only to see the correctness, legality or propriety of any finding, sentence or order and regularity of any proceedings. It is equally true that the power of revision extends not only to consider and examine the legality of the orders but also the correctness or propriety of the proceedings and the orders passed. The court in the appropriate cases can go into the questions of fact to see the legality and propriety of the proceedings. If it is found that the conclusions arrived at are without any basis or evidence or based upon inadmissible evidence this Court can set aside the orders. The revisional court has to satisfy itself that the court below has decided the case on legal and admissible evidence and has not been swayed away by considerations not relevant for the purpose of deciding the relevant questions before it. Even though the revisional court cannot go into the question of sufficiency or insufficiency of the evidence justifying the finding of fact arrived at yet it has the power to examine the admissibility of evidence, on the basis of which finding was arrived at by the trial court. ("Prejudice" is generally defined as meaning "to the harm, to the injury, to the disadvantage of someone". It also means injury or loss.This definition is relevant to understand the expression prejudice to an accused , as no order in revision is to be passed which prejudices the accused without giving him an opportunity of hearing) CRIMINAL APPEAL NO.956 OF 2019 PRAKASH JAIN & ORS. v. THE STATE OF KARNATAKA It is a well settled principle of law that though

the High Court has the power to enhance the sentence sou

motu, such power should be exercised sparingly and in

exceptional circumstances and furthermore this power

should not be exercised without issuing notice to the

accused. This notice cannot be an illusory notice. As

far as the present case is concerned, it appears that

during the course of hearing notice was given. However,

it is not clear whether such a notice was an oral notice

or a notice in writing. In our view, such a notice would

not satisfy the legal requirements. Any notice for

enhancement must indicate why the Court wants to enhance

the sentence and it must give reasonable time to the

accused to answer the notice. Eknath Shankarrao Mukkawar vs State Of Maharashtra on 12 April, 1977 "We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or 'the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extent under section 397 read with section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues. as before in the new Code."


Supreme Court of India

Nadir Khan vs The State (Delhi Administration) on 3 June, 1975 "It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal-justice, keeps a, constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. is now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by rearrangement of the sections. It is true the new Code has expressly given a right to the State under s.377 Cr. P.C. to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Art. 136 of the Constitution…S. 401 expressly preserves the power of the High Court, by itself to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. The provisions under s. 401 read with s. 386(c) (iii) Cr. P.C. are clearly supplemental to those under s. 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government, as the case may be.


Revsional Court should hear accused in revision petition against the dismissal of the protest petition :-

CRIMINAL APPEAL NO.2183 OF 2011 SUBHASH SAHEBRAO DESHMUKH Vs SATISH ATMARAM TALEKAR decided on June 18, 2020

in a revision petition preferred by the complainant before the

High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint

under Section 203 of the Code at the stage under Section 200 or after following the process

contemplated under Section 202 of the Code, the accused or a person who is suspected to have

committed the crime is entitled to hearing by the Revisional Court. In other words, where the

complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to

the legality of the said order being laid by the complainant in a revision petition before the High

Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. What is an interlocutory order?


Halsbury’s Laws of England, 3rd Edition, Vol. 22,

interlocutory order is described as follows in para 744 under Section 1608.

Interlocutory judgment or order :- An order which

does not deal with the final rights of the parties, but either

(1) is made before judgment and gives no final decision

on the matters in dispute, but is merely on a matter of

procedure, or (2) is made after judgment, and merely

directs how the declaration of right already given in the

final judgment are to be worked out, is termed

‘interlocutory’. An interlocutory order, though not

conclusive of the main dispute, may be conclusive as to

the subordinate matter with which it deals.


In Central Bank of India v. Gokal Chand; AIR 1967 SC 799

the Supreme Court has pointed out that “interlocutory orders are merely

procedural and do not affect the rights or liabilities of the parties in the

pending proceeding and that they are merely steps taken towards the final

adjudication and for assisting the parties in the prosecution of their case in

the pending proceeding.”


V. C. Shukla vs State Through C.B.I.; 1980

AIR 962, the Court held that, “The term ‘interlocutory order’ used in

section 397(2) of the Code relates to various stages of the trial, namely

inquiry, trial or any other proceeding. The object seems to be to cut down

the delays in stages through which a criminal case passes before it

culminates in an acquittal, discharge or conviction. Having regard to the

very large ambit and range of the Code, the expression interlocutory order

would have to be given a broad meaning so as to achieve the object of

the Code without disturbing or interfering with the fairness of the trial.”

In the above case the Court further pointed out that, “The term

interlocutory is to be understood and taken to mean the converse of the

term ‘final order’. The essential attribute of an interlocutory order is that

it merely decides some point or matter essential to the progress of the suit

or collateral to the issue sought but is not a final decision or judgment on

the matter under issue. An intermediate order is one which is made between

the commencement of an action and the entry of the judgment.”



Amar Nath & Ors. vs. State of Haryana 1978(1)

SCR 222, the Hon’ble Supreme Court has held that the expression

‘interlocutory order’ in Section 397(2) has been used in a restricted sense

and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an ‘interlocutory order’.

For instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under s. 397 (2) of the 1973 Code.


K.K. Patel and Anr. vs. State of Gujarat and

Anr.; 2000(41)ACC 351(SC) it is observed that in deciding whether an

order challenged is interlocutory or not, the sole test is not whether such

order was passed during the interim stage but the feasible test is whether

by upholding the objection raised by a party, it would result in culminating

the proceedings.


In Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels

Ltd. and Anr. reported in 2002 (1) Mh.L.J. 81, the Supreme Court

has observed that- Whether an order is interlocutory or not, cannot be

decided by merely looking at the order or merely because the order was

passed at an interlocutory stage. The Supreme Court further lay down

that the safe test is that if the contention of the petitioner who moves the

superior Court in revision, as against the order under challenge, is upheld,

would the criminal proceedings as a whole culminate? If they would, then

the order is not an interlocutory order in spite of the fact that it was

passed during any interlocutory stage.

REMEDY AGAINST SUMMONING ORDER U/S.

204 CRIMINAL PROCEDURE CODE, 1973 1.Order of Issuance of process u/s. 204 Cr.P.C. is not an interlocutory

order.

2. Revision under section. 397 Cr.P.C. is maintainable against an Order of Issuance

of process u/s. 204 Cr.P.C.

3. Remedy against Order of Issuance of process under section. 204 Cr.P.C. is

also lies u/s.482 Cr.P.C.

4. A Magistrate cannot revoke his Order of Issuance of process under section

204 Cr.P.C due to the bar under section 362 of the CrPC as it amounts to review. Adalat Prasad vs. Rooplal Jindal & Others; AIR 2004 SC 4674,

it has been interpreted by different courts that the only remedy against

summoning order u/s 204 Cr.P.C. for the accused is to invoke the inherent

power of the High Court u/s. 482 Cr.P.C. In the said case the Hon’ble

Apex Court has, while negating the power of review of a summoning

order by the Magistrate, held that, “Hence in the absence of any review

power (Section 362 bars it) or inherent power with the subordinate criminal courts, the

remedy lies in invoking Section 482 of Code.” (Keep in mind the ratio of this judgment was confined to the question holding that if the Magistrate had issued process, he could also recall such an order, was a correct view or not? It was the only question which

fell for consideration. It is to be noted that it was the only question

argued, deliberated and decided by the Supreme Court in this context supreme court answered that remedy lied in 482 , it did not go into the question whether the order of issuing process was itself an interlocutory order or not ?) Subramanium Sethuraman vs State of Maharashtra & Anr; AIR 2004 SC 4711. In this case, while upholding the ratio of Adalat Prasad’s case (supra), the Court held

“As observed by us in Adalat Prasad’s case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of

the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. (The question which fell for consideration before the Supreme Court (in Subramaniam Sethuraman’s case) was whether the decision in the

case of Adalat Prasad would require reconsideration as in the case of Adalat Prasad , the Court proceeded on the basis that the case was a summons case but in reality it was a warrant case covered by Chapter XIX of the Criminal Procedure Code. That was the question which arose

for consideration. Again the issue for consideration before the Supreme Court was whether the “Magistrate” could recall the order issuing process in a summons case as well as warrant case and the Court upheld the law laid down by them in Adalat Prasad’s case and further observed that law laid down by them in Adalat Prasad’s case shall apply summons as well

as in warrant case) whether a summoning order is an interlocutory order and if yes, whether revision of the same

u/s. 397 Cr.P.C. is barred? In this regard long before today in the case of

Amar Nath & Ors. vs. State of Haryana 1978(1) SCR 222, Supreme

Court has held that, “The impugned order of the Judicial Magistrate (for

summoning the accused) could not be said to be an interlocutory order

and does not fall within the mischief of s. 397(2) and, therefore, a revision

against this order was fully competent under s. 397(1) or under s. 482 of

the Code because the scope of both the sections in a matter of this kind is

more or less the same.”

In the case of Madhu Limaye vs. The State of Maharashtra;

AIR 1978 SC 47, the Supreme Court considered the very issue whether

the revision against the order taking cognizance or issuing process or

framing charge was maintainable. The Supreme Court observed in para

10 that the order of the Court taking cognizance or issuing process is not

an interlocutory order. Dhariwal Tobaco Products Ltd. & Ors. Vs. State

of Maharashtra & Anr.; 2009(64)ACC 962, the Apex Court again

held that, “Indisputably issuance of summons is not an interlocutory order

within the meaning of Section 397 of the Code.”

It must be borne in mind that power under 397 read with 401 of Cr. PC is different from inherent power under 482 .

in Central Bureau of Investigation v. Ravi Shankar Srivastava, [ (2006) 7 SCC 188 ] this Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, held :-


" Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise." Bindeshwari Prasad Singh @ B.P. ... vs State Of Bihar (Now Jharkhand) on 13 August, 2002

the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. Supreme Court of India

Vimal Singh vs Khuman Singh & Anr on 8 October, 1998

ambit of power of High Court under Section 401 of the Code, the High Court in its reversional power does not ordinarily interfere with judgment of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accoused deserves conviction. No doubt, the High Court in exercise of its reversional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. Infect, Sub-section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction Allahabad High Court

Taj Khan And Ors. vs Rex on 14 November, 1951

Powers of appellate court and revisional court cannot be combined into one so as to alter the find of sentence of acquittal into that of conviction. Bihari Prasad Singh vs The State Of Bihar (2000) (1) SCC 346 Court cannot refuse to exercise its revisional jurisdiction of the ground that accused has not surrendered . Supreme Court also took note that Patna HC rules also donot prescribe for such a course . Revision application by a third party? The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution “would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction”. In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court’s process. Can we state that in this third category the inherent power can be exercised? “The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. Prabhu Chawla vs State Of Rajasthan & Anr on 5 September, 2016 (3 judges bench)


“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.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more.” Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable. State of Punjab Vs. Davinder Pal Singh Bhullar and others etc


The Section 482 of Cr.P.C. talks about the inherent powers of the High Court. The inherent powers of the High Court are not the one conferred by the code, but the ones which the High Court already has in it and the code merely preserves this power. Section 397(2) of Cr.P.C. is just a bar so as to result in a speedy trial and prevent unnecessary delays and multiplicity of the same proceedings. In Madhu Limaye V/s. The State of Maharashtra [(1977) 4 SCC 551], a three-Judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397 (2) of the Code. This Court held that the bar on the power of revision was put in order to facilitate expedient disposal of the case but in Section 482 it is provided that nothing in the Code which would include Section 397 (2) also, shall be deemed to limit or affect the inherent powers of the High Court. On an harmonious construction of said two provisions in this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegation of defamatory statements were published in the newspapers against the Law Minister, the State Government had decided to prosecute the appellant for offence under Section 500, IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognisance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that Court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on the maintainability, this Court held that power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code. 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. 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. 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."

(remember magistrate cannot give direction to CBI to investigate :- Central Bureau of Investigation through S.P. Jaipur Vs. State of Rajasthan & another [2001) 3 SCC 333] has laid down the principles as to whether direction can be given to the CBI under Section 156(3) Cr.P.C. It was held that magisterial power cannot be stretched under the said provision beyond directing the officer incharge of a police station to conduct the investigation and no such direction can be given to the CBI.)


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