Madhav Govindrao Vaidya vs State of Maharashtra

M.S. Jamdar, J.—This petition, which was originally filed under Articles 226 and 227 of the Constitution of India, was ordered by the Division Bench of this Court to be treated as a petition under Article 227 of the Constitution and was subsequently amended to make it one under Article 227 of the Constitution read with section 482 of the Code of Criminal Procedure. In view of this; the prayer of the petitioner that the provisions of section 3 of the Police (Incitement to Disaffection) Act, 1922, should be declared as ultra vires of the Constitution, does not survive for Consideration, and as directed by the Division Bench of this Court by the order dated 25th November 1980, the only question that survives for consideration is about the correctness of the approach adopted by the learned Additional Sessions Judge and of the view taken by him on the provisions of the Code of Criminal Procedure.

The petitioner is the Editor of Marathi daily newspaper "Tarun Bharat", which is printed and published at Nagpur. A news item appeared in the issue of the said daily dated 6-9-1973 about the alleged disrespect amongst policemen for their superior officers. The police Inspector, Sitabuldi police station felt that the criticism made in the publication was not honest and tended to create feeling of disaffection in the Police Force in general and the Police Force of Nagpur City in particular, which amounted to an offence u/s 3 of the Police (Incitement of Disaffection) Act, 1922. As the said offence is non-cognizable, he applied to the Judicial Magistrate, First Class, Court II, Nagpur, for permission u/s 155 (21 of the Code of Criminal Procedure, 1898, to investigate the offence. The Magistrate granted permission by his order dated 2-10-1973. This was followed by sanction granted by the Commissioner of police in exercise of the powers u/s 5 of the Police (Incitement to Disaffection) Act, 1922. Thereafter a charge-sheet came to be filed against the petitioner on 27-1-1974 for the aforesaid offence.

2A. Process was directed to be issued against the petitioner and accordingly a summons was issued to him. The petitioner duly appeared in the Court of the Judicial Magistrate and on 23-7-1974 he filed an application u/s 253 (2) of the Code of Criminal Procedure, 1898, for discharging him, as according to him, from the statement recorded by the police during investigation, no offence was disclosed. The Judicial Magistrate rejected the application on the ground that as the case was a summons case, section 253 (2) of the Code of Criminal Procedure, 1898, had no application and that section 249 of the Code of Criminal Procedure, 1898, cannot be invoked at the stage before explaining the particulars of the offence to the petitioner. Being aggrieved by this order, the petitioner filed revision application under sections 397/399 of the Code of Criminal Procedure, 1973, to the Sessions Judge, Nagpur. The learned Additional Sessions Judge, Nagpur, who heard the matter, held that there was no order which could be revised and that he had no jurisdiction to quash the proceeding, which jurisdiction, according to him, vested in the High Court u/s 482 of the Code of Criminal Procedure, 1973. Consequently, he rejected the revision application for want of jurisdiction. It is this order, which is sought to be quashed in this petition.

At the outset, it must be observed that the presumption of the learned Additional Sessions Judge that there was no order which could be revised is clearly wrong. In fact the Magistrate passed three orders in the proceedings. The first order was u/s 155 (2) of the Code of Criminal Procedure, 1898, granting permission to investigate into the offence. The second order was u/s 204 (1) of the Code of Criminal Procedure, 1898, about issuing process against the petitioner, and the third order was rejecting the alternative prayer made by the petitioner at the time of hearing of the application on 23-7-1974 that action u/s 249 of the Code of Criminal Procedure, 1898, should be taken. It is true that the learned advocate, who appeared for the petitioner before the Additional Sessions Judge, conceded that the revision was not against any order passed by the Magistrate and contended that the revision was against the prosecution itself. But that cannot be a justification for ignoring the order about issue of process, which must be deemed to have been passed u/s 204 (1) of the Code of Criminal Procedure, 1898, and the latter order rejecting the application of the petitioner for discharging him or in the alternative stopping the proceeding. Both these orders cannot be considered as interlocutory orders even though the first order about granting permission to investigate the offence can be considered to be one such. It is now well-settled position that an order putting the accused to trial is not an interlocutory order and can be revised u/s 397 of the Code of Criminal Procedure, 1973. The order refusing to stop the proceeding u/s 249 of the Code of Criminal Procedure, 1898 (Section 258 of the new Code) can also be revised u/s 397 of the Code of Criminal Procedure, 1973.

The learned Additional Sessions Judge has held that even under the new Code of Criminal Procedure, the Sessions Judge has no power to quash the proceeding pending in the trial Court and that this power can be exercised only by the High Court u/s 482 of the Criminal Procedure Code, 1973. This, to my mind, is not the correct approach. Section 397(1) lays down that 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. High Court''s powers of revision are enumerated in section 401. Sub-section (1) of section 401 lays down that 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 section307 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. This subsection is exactly in the same words as section 439 (I), the Code of Criminal Procedure, 1898. The only limitation on the High Court''s powers of revision is that no order u/s 401 can be passed 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, and that section 401 does not authorise the High Court to convert the finding of acquittal into one of conviction. The third limitation is that where 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.

4A. Sessions Judge''s powers of revision are mentioned in section 399, which is a new provision. Sub-section (1) of section 399 lays down that in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401. Sub-section (2) of section 399 further provides that where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceedings and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Section 400 further provides that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. It is thus clear that under the new Code, the Sessions Judge and the Additional Sessions Judge are invested with revisional powers which are co-extensive with the revisional powers which the High Court can exercise u/s 401. Of course, sections 399, 400 and 401 are subject to section 397, sub-section (2) of which imposes the limitation that the powers of revision conferred by sub-section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. Hence, a Sessions Judge or an Additional Sessions Judge, hearing the matter which is transferred to him by the Sessions Judge by general or special order, can exercise all the powers, which the High Court can exercise u/s 401 (1) of the Code of Criminal Procedure, 1973, which provision, as mentioned above, is analogous to section 439 (1) of the Code of Criminal Procedure, 1898.

In support of the contention that the learned Additional Sessions Judge had jurisdiction to quash the proceeding, Shri Moonje, learned advocate for the petitioner, placed reliance on the decision of the Division Bench of this Court in In Re: Shripad G. Chandavarkar, . In that case, the learned Judges were hearing a revision application u/s 439 of the Code of Criminal Procedure, 1898. They held that High Court has power at an interlocutory stage to quash the proceeding in order to prevent further harassment to the accused, when it appears that the accused was not guilty on the face of the proceeding. In support of this proposition, the learned Judges relied on the decisions reported in Chandi Pershad v. Abdur Rahman 20 I L R Cal. 131, Choa Lal Dass v. Anant Pershad Misser 25 (I L R) Cal 233, Hari Charan Gorait v. Girish Chandra Sadukhan 38 (I L R) Cal. 68, Queen Empress v. Nageshappa Pai 20 (I L R) Bom. 543, Re S. Kuppuswami Aiyar (I L R) 30 Mad. 561 and Ramanathan Chettiar Vs. K. Sivarama Subramania Aiyar, .

As mentioned above, section 439 (I) of the Code of Criminal Procedure, 1898 and section 401 (1) of the Code of Criminal Procedure, 1973, are almost identical and hence in exercise of the powers conferred by section 397 (1) read with section 401 (1) of the Code of Criminal Procedure, 1973 High Court quash the proceeding in order to prevent further harassment of the accused when it appears that the First Information Report and other documents on which the prosecution seeks to rely do not disclose an offence at all. In view of sections 399 and 400 of the Code of Criminal Procedure, 1973, Sessions Judge and Additional Sessions Judge can also exercise the same powers. Moreover, section 397, which, in view of sections 399 and 400, confer the same powers of revision on the Sessions Judge and the Additional Session Judge as are conferred on the High Court u/s 401 (1), is wide enough to include the power to consider legality of any proceeding. u/s 397 (1), the High Court and the Sessions Judge are empowered to examine the record of any proceeding not only for ascertaining the correctness, legality or propriety of any finding, sentence or order, recorded or passed, but also for the purposes of examining regularity of any proceeding of an inferior criminal Court. The word "proceeding" is wider than the expression "judicial proceeding" and covers everything done and recorded by an inferior Criminal Court, acting as a Court, other than a finding, sentence or order. The learned Additional Sessions Judge, therefore, had jurisdiction to hear and decide the revision application and committed an error in refusing to exercise the jurisdiction vested in him. I therefore, allow the petition and remit the matter back to the Sessions Judge to decide the revision application on merits. No order as to costs.