-1-
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:: O R D E R ::
(1) S.B. CRIMINAL REVISION PETITION NO. 753/2006
(Natwar Lal Vs. State & Ors.)
(2) S.B. CRIMINAL REVISION PETITION NO. 210/2007
(Ranchhor Vs. State & Ors.)
(3) S.B. CRIMINAL REVISION PETITION NO. 431/2007
(Manish Kumar & Anr. Vs. State & Anr.)
(4) S.B. CRIMINAL REVISION PETITION NO. 496/2007
(Vijay Singh @ Vijay Pal Singh Vs. State)
(5) S.B. CRIMINAL REVISION PETITION NO. 497/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(6) S.B. CRIMINAL REVISION PETITION NO. 498/2007
(Vijay Singh @ Vijay Pal Singh Vs. State)
(7) S.B. CRIMINAL REVISION PETITION NO. 499/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(8) S.B. CRIMINAL REVISION PETITION NO. 500/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(9) S.B. CRIMINAL REVISION PETITION NO. 501/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(10) S.B. CRIMINAL REVISION PETITION NO. 502/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(11) S.B. CRIMINAL REVISION PETITION NO. 503/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(12) S.B. CRIMINAL REVISION PETITION NO. 504/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(13) S.B. CRIMINAL REVISION PETITION NO. 505/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
-2-
(14) S.B. CRIMINAL REVISION PETITION NO. 506/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(15) S.B. CRIMINAL REVISION PETITION NO. 507/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(16) S.B. CRIMINAL REVISION PETITION NO. 883/2007
(Vijay Singh @ Vijay Pal Singh Vs. State & Anr.)
(17) S.B. CRIMINAL REVISION PETITION NO. 549/2007
(Rajendra Manda & Anr. Vs. State & Anr.)
(18) S.B. CRIMINAL REVISION PETITION NO. 953/2007
(Ashapura Construction Vs. State & Anr.)
(19) S.B. CRIMINAL REVISION PETITION NO. 1110/2007
(Jeev Raj Vs. State & Anr.)
(20) S.B. CRIMINAL REVISION PETITION NO. 1260/2007
(Ganpat Ram & Ors. Vs. State)
(21) S.B. CRIMINAL REVISION PETITION NO. 71/2008
(Intzar Ali @ Anjar Ali & Anr. Vs. State)
(22) S.B. CRIMINAL REVISION PETITION NO. 135/2008
(Fua Ram & Ors. Vs. State)
(23) S.B. CRIMINAL REVISION PETITION NO. 142/2008
(Mohan Singh Vs. State & Anr.)
(24) S.B. CRIMINAL REVISION PETITION NO. 268/2008
(Sanjay Prakash Vs. State & Ors.)
(25) S.B. CRIMINAL REVISION PETITION NO. 297/2008
(Dev Raj Vs. State)
(26) S.B. CRIMINAL REVISION PETITION NO. 1315/2007
(Iqbal Singh & Ors Vs. State & Anr.)
(27) S.B. CRIMINAL REVISION PETITION NO. 110/2008
(Smt. Sampat Devi Vs. State & Anr.)
(28) S.B. CRIMINAL REVISION PETITION NO. 808/2006
(Govind Vs. State & Anr.)
(29) S.B. CRIMINAL REVISION PETITION NO. 881/2006
(Dr. Tikam Chand Vs. State)
-3-
(30) S.B. CRIMINAL REVISION PETITION NO. 342/2007
(Khima Ram Vs. State)
(31) S.B. CRIMINAL REVISION PETITION NO. 440/2007
(Prakash Chandra & Ors. Vs. State & Anr.)
(32) S.B. CRIMINAL REVISION PETITION NO. 914/2007
(Rajesh Kumar & Ors. Vs. State)
(33) S.B. CRIMINAL REVISION PETITION NO. 937/2007
(Bhanwar Singh & Ors. Vs. State)
(34) S.B. CRIMINAL REVISION PETITION NO. 955/2007
(Hira Lal Vs. State)
(35) S.B. CRIMINAL REVISION PETITION NO. 798/2007
(Hira Lal Vs. State)
(36) S.B. CRIMINAL REVISION PETITION NO. 1016/2007
(Thawara Ram & Anr. Vs. State & Ors.)
(37) S.B. CRIMINAL REVISION PETITION NO. 1120/2007
(Roop Singh & Ors. Vs. State)
(38) S.B. CRIMINAL REVISION PETITION NO. 1167/2007
(Chiragudeen & Anr. Vs. State & Ors.)
(39) S.B. CRIMINAL REVISION PETITION NO. 1244/2007
(Joga Ram Vs. State & Ors.)
(40) S.B. CRIMINAL REVISION PETITION NO. 1255/2007
(Jeeva Ram Vs. State & Ors.)
(41) S.B. CRIMINAL REVISION PETITION NO. 1262/2007
(Mohan Singh Vs. State & Anr.)
(42) S.B. CRIMINAL REVISION PETITION NO. 1275/2007
(Mahadev Prasad & Ors. Vs. State & Anr.)
(43) S.B. CRIMINAL REVISION PETITION NO. 1319/2007
(Sarfaraj Hussain Vs. State & Anr.)
(44) S.B. CRIMINAL REVISION PETITION NO. 1372/2007
(Mahendra Chhajer @ Babu Chhajer Vs.State)
(45) S.B. CRIMINAL REVISION PETITION NO. 1373/2007
(Mahendra Chhajer @ Babu Chhajer Vs.State)
-4-
(46) S.B. CRIMINAL REVISION PETITION NO. 1385/2007
(Narendra & Anr. Vs. State & Anr. )
(47) S.B. CRIMINAL REVISION PETITION NO. 35/2008
(Surendra Pal Singh Vs. State & Anr. )
(48) S.B. CRIMINAL REVISION PETITION NO. 40/2008
(Ram Avatar Tiwari & Ors. Vs. State & Anr. )
(49) S.B. CRIMINAL REVISION PETITION NO. 74/2008
(Rajendra Kanwar Vs. State & Anr. )
(50) S.B. CRIMINAL REVISION PETITION NO. 137/2008
(Mohan Singh Vs. State & Anr. )
(51) S.B. CRIMINAL REVISION PETITION NO. 139/2008
(Mohan Singh Vs. State & Anr. )
(52) S.B. CRIMINAL REVISION PETITION NO. 140/2008
(Mohan Singh Vs. State & Anr. )
(53) S.B. CRIMINAL REVISION PETITION NO. 143/2008
(Mohan Singh Vs. State & Anr. )
(54) S.B. CRIMINAL REVISION PETITION NO. 160/2008
(Laxmi Narayan & Ors. Vs. State & Ors.)
(55) S.B. CRIMINAL REVISION PETITION NO. 174/2008
(Rampyari Vs. State & Ors.)
(56) S.B. CRIMINAL REVISION PETITION NO. 188/2008
(Mool Chand & Anr. Vs. State & Ors.)
(57) S.B. CRIMINAL REVISION PETITION NO. 196/2008
(Dr. Daulal Vs. State)
(58) S.B. CRIMINAL REVISION PETITION NO. 227/2008
(Kamal Garg & Anr. Vs. State)
(59) S.B. CRIMINAL REVISION PETITION NO. 303/2008
(Phool Chand & Ors. Vs. State)
(60) S.B. CRIMINAL REVISION PETITION NO. 291/2008
(Pradeep Vaishnav Vs. State & Arn.)
(61) S.B. CRIMINAL REVISION PETITION NO. 340/2008
(Ram Chandra Vs. State & Ors.)
-5-
(62) S.B. CRIMINAL REVISION PETITION NO. 341/2008
(Ram Chandra Vs. State & Ors.)
(63) S.B. CRIMINAL REVISION PETITION NO. 351/2008
(Abdul Raheem & Ors. Vs. State & Ors.)
(64) S.B. CRIMINAL REVISION PETITION NO. 364/2008
(Smt. Kanta Vs. State)
(65) S.B. CRIMINAL REVISION PETITION NO. 365/2008
(Ratan Lal Vs. State)
(66) S.B. CRIMINAL REVISION PETITION NO. 370/2008
(Nirmal Kumar Vs. State)
(67) S.B. CRIMINAL REVISION PETITION NO. 371/2008
(Mangi Lal Vs. State)
(68) S.B. CRIMINAL REVISION PETITION NO. 0508/2008
(Najmudeen Vs. State)
REVISION PETITIONS UNDER SECTION
397 CR.P.C.
DATE OF ORDER : 23rd April, 2008
P R E S E N T
HON'BLE MR. JUSTICE DEO NARAYAN THANVI
Mr. M.D. Purohit, Sr. Advocate assisted by Mr. Anand Purohit,
Mr. P.N. Mohnanai, Mr. HSS Kharlia, Mr. Sandeep Mehta,
Mr.Mahesh Boda , Mr. Mridul Jain, Mr. Chaitanya Gehlot,
Mr.Suresh Kumbhat, Mr. Pradeep Shah, Mr. M.K. Garg,
Mr.Niranjan Singh, Mr. J.P.Chhangani, Mr. Sunil Mehta,
Mr.G.R.Punia, Mr.R.S.Choudhary, Dr.Sachin Acharya, Mrs.
Pramila Acharya, Mr. Vineet Jain, Mr.I.R. Choudhary, Mr. Mukesh
Rajpurohit, Mr. Shambhoo Singh, Mr.Dron Kaushik, Mr. Vijay
Purohit, Mr. Mahendra Solanki, Mr.Rajesh Shah, Mr.Rakesh
Sinha, Mr.D.L.Rawla, Mr.M.S.Purohit, Mr. A.D.Charan, Mr.
Deepak Menaria, Mr.N.S.Rathore, Mr.T.R.S.Soda, Mr. Ramdev
Potaliya, Mr. Rajesh Grewal, Mr.B.P.Bohra for the respective
parties.
-6-
Mr. S.K. Vyas ) Government Advocate.
Mr. Vishnu Kachhawaha ) Dy. Govt. Advocate.
BY THE COURT :
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
-7-
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
-8-
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 & Ors. Vs. Shivnath Soni & Anr., reported in 1988(2) RLR
-9-
293, Moda Ram & Ors. Vs. Prithvi Raj, reported in 1984 WLN
364, Om Prakash & Ors. Vs. State of Rajasthan & Ors., reported
in 1987(2) WLN 661, Chijan Das Vs. State of Rajasthan & Ors.,
reported in 1998(2) RCC 57 and Reserve Bank of India Vs.
Ronak Singh & 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 Vs. Ranbir Singh and Anr., reported in AIR 1979 SC
381 and Central Bureau of Investigation Vs. 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
-10-
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
-11-
quoted the observations of Abbott C.J. In Fox Vs. Bishop of
Chester, reported in (1824) 2 B & C 635 as under:
“ t hat it is a well known principle of law that
the provisions of an act of Parliament shall
not be evaded by shift or contrivance...
and also following words of (Maxwell, 11th
Edition, 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 Vs. 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:
“Indeed, 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 S. 439 of
the Code, read with S. 435, do not create any
right in the litigation, but only conserve the
power of the High Court to see that justice is
-12-
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 Vs. Anup R.
Kantak & 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
-13-
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 Vs.
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 Vs. Smt. Sunanda Tejram Gaikwad,
reported in 1996 Cri. L.J. 172, were also quoted as under :
“It is undoubtedly true that S.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,
-14-
the revision application deserves to be
dismissed on this count alone. This Court does
not encourage filing of revision application
under S. 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. Vs. 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 Vs.
Khizar Mohammad and Others, reported in 1997 Cri.L.J. 549,,
the Madhya Pradesh High Court has not discussed the scope of
-15-
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 Vs. 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 Vs. 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
-16-
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
-17-
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
-18-
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
-19-
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 Vs. 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 Vs. 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
-20-
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 Vs. 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
-21-
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.
(DEO NARAYAN THANVI), J
