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R.N. Lal, J.—This petition is considered on (be reference made by S.S. Hasan, J (as be then was) doubting the decision reported in 1984 B.B.C.J. 871 (Rabindra Nath Cboubey and Ors. v. Charai Chaman and Anr. decided by a Division Bench of this Court consisting of S.S. Sandhawalia C.J. and B.P. Griyaghey J. (as they then were). Similar matter had come up before another Division Bench of this Contain Criminal Revision No. 1023 of 1930 consisting of S.S. Sandhawalia, C.J. and S.S. Hasan, J. The petition was dismissed by S.S. Sandhawalia, C.J. but S.S. Hasan, J. did cot agree and held that the matter should be referred to the Hon''ble Chief Justice to place before a larger Bench because there were several decisions of this Court taking a contrary view in the matter but it stood dismissed for default on 15.10.1987 for non-compliance of the Court''s peremptory order dated 24.9.1987.
In the present case, S.S. Hasan, J. formulated the reference to be considered by a Full Bench that if a limited rule is issued on the question of sentence, the Court can go into the merits of the case and acquit the Petitioner, once for all. Thus, the matter has come up before this full Bench for consideration.
The Petitioner was a member of C.R.P.F. bearing No. 700620457 Ct. of G.C.C.R.P.F. Mokamaghat who was undergoing simple imprisonment for 25 days u/s 10(d) and 10(m) of C.R.P.F. Act, 1949 awarded by Sri S.S. Soul, Judicial Magistrate, 1st Class and Assistant Commandant Group Centre, Mokamaghat for leaving of lines while made to undergo punishment of confinement of lines for 15 days with effect from 19.2.82 to 5.3.82 and also ;for absenting himself without leave with effect from 1.3.82 to 15.3.82. The period of eighteen days of sentence of imprisonment was adjusted towards his detention in the judicial custody, The remaining sentence of seven days simple imprisonment had been served out by the Petitioner.
Later the complaint was filed on 6.3.82 by Sri S.D. Pandey, Dy. Superintendent of Police, Comandant (Administration) of G.C.C.R.P.F. Mokamaghat against the Petitioner Rama Nand Choudhary on 6.3.82 in the court of aforesaid Magistrate with the allegation that the Petitioner was a member of force G. C. C. R.P.F. Mokamaghat and was awarded 15 day''s confinement of lines u/s 11(3) of the C.R.P.F. Act by the Commandant with effect from 19.2.82 to 5.3.82 with forfeiture of all pay and allowance. The Petitioner while under-going the aforesaid sentence left the lines on 1.3.82 at 6.10 hours before he was set at liberty by the lawful authority. He absented himself from the lines with effect from 1.3.82 and so he committed no offence u/s 10(a) and 10(m) of the C.R.P.F. Act. After framing of the charge against the Petitioner he was tried and was held guilty and awarded above sentence by a Judgment delivered in case No. 1 of 1982 by Sri S.S. Soni, Judicial Magistrate, 1st Class and Assistant Commandant, C.R.P.F. Mokamaghat, Bihar on 22.4.82. The Petitioner went up in the appeal before the Sessions Jadge, Patna and the appeal was hoard and decided by learned 2nd Additional Sessions Judge, Patna in Criminal Appeal No. 180/82 dated 31st July, 1984 by which Sri A.N. Jha, learned 2nd Additional Sessions Judge dismissed the appeal and maintained the conviction and sentence. The learned appellate Court in its finding stated that "the findings of facts arrived at by the court below were not challenged. However, he pressed the appeal more or less on humanitarian grounds and mainly passed the appeal on modification of the sentence of imprisonment but under the provision of C.R.P.F. Act the sentence of imprisonment entails dismissal from the service.
The Petitioner came up in criminal Revision bearing No. 1052/84 against the aforesaid judgment and the petition was admitted by H.L. Agrawal, J. (as he then was) on 13.2.85 which reads as follows:
This petition will be heard on the question of sentence. Issue notice and call for the records.
The Petitioner insisted that the petition be heard on merit in spite of the limited rule granted, when the records were called for. Hence this reference to the Full Bench.
5A. The ratio decided in 1984 BBCJ 871 in Criminal Revision No. 808/80 on 5.7.84 had been doubted which has laid down that such a petition cannot be heard on merits.
Mr. Dayal, learned Counsel for the Petitioner, submitted that the High Court ought to look into the merits of the case, if an illegality in the conviction or sentence is brought to the notice and the said illegality has got to be removed. As such, this is wrong to think that if a petition is admitted on the point of sentence only, merits cannot be gone into. He relied on ILR volume-III Patna-804 Hussain Buksh Mian v. King Emperor. In this case the cow had strayed into the fields. Later the cow was skinned by the 2nd and 3rd Appellants and they were convicted for an offence u/s 379 and 429 of the Indian Penal Code. The Court held that where a theft of animal had been committed, the more killing of it afterwards by the person who stole it for the purpose of eating it himself cannot add another offence. The Court felt that the real offence committed was theft of the cow and its susequent killing and being oaten by him does not justify their being separately convicted in addition to the conviction and sentence on the charge of theft of an offence punishable under the provisions of Section 429 of the Indian Penal Code. Accordingly the conviction and sentence recorded were set aside and the Appellant was set at liberty. The fine, if paid, was ordered to be refunded. Learned Counsel has relied on case reported in Shaikh Idris and Others Vs. Emperor, and Kuldip Das Vs. Emperor, supporting his contention but the case reported in 1984 B.B.C.J. 871 Rabindra Nath Choubay and ors. v. Charai Chaman and Anr. distinguished the principle involved though there was no discussion regarding ILR Pat 804 (supra). In a case reported in 1981 B.B.C.J. 421 S.P. Mallik v. State of Bihar and Anr. S.S. Hasan, J. had himself felt that "I feel that once the record of a proceeding of an inferior court is before this Court, no restriction imposed in the order calling for the records will inhibit the discretion of the Court disposing of the application to go into the matter on merit and correct any illegality or impropriety in arty proceeding." and the learned Judge''s said view continued in Bishan Singh, Gurdial Singh, Hardial Singh, Surjit Singh, Harbans Singh and Hazur Singh Vs. The State of Punjab, as also Ghanshyam and Others Vs. State of Uttar Pradesh, the conviction and sentence were interfered with as accused had gone up in appeal before the appellate court and hence the Court of appeal was well within its jurisdiction to at aside or interfere with an illegal conviction and sentence but in a petition u/s 397 of the Code of Criminal Procedure, the jurisdiction is very limited. Section 397 of the Code of Criminal Procedure reads as follows:
Calling for records to exercise powers of Revision--The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within it 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.
This shows that the Court has jurisdiction to examine the records for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed with regard to the regularity of any proceedings. Thus the provision had got to be read with the provision contained in Section 401 of Criminal Procedure, which runs as follows:
High Court''s power of Revision--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the powers consent on a Court of Appeal by Sections 380, 389, 390 and 391 or on a Court of Sessions by sec. 307 and, when the judges composing the Court of Revision and equally divided in opinion, the case shall be disposed of in the manner provided by sec. 392.
This clearly shows that he High Court may in its discretion, exercise any of the powers conferred on a Court of Appeal. Thus, the power of the Court becomes discretionary, so far as the question of Revision is concerned. This gets further highlighted by the provisions contained in Section 403 of the Code of Criminal Procedure which runs as follows:
Option of Court to hear parties--Save as otherwise expressly provided by the Code, no party has any right to he heard either personally or by pleader before any Court. exercising its powers of Revision, but the Court may, if it thinks fit when exercising such powers, hear any party either personally or by pleader.
Thus no party has a right to be heard before any Court exercising its power of Revision, though the Court may in its discretion exercise such powers and hear any party either personally or through any pleader.
6A. Now, it is abundantly clear that power u/s 397 of the Code of Criminal Procedure is essentially discretionary in nature and Court may or may not exercise its discretion, may or may not hear the Petitioner or any of the parties and may or may not interfere with the conviction and sentence unless the Court, is itself satisfied about the illegality and the incorrectness of the order or judgment. The Appellant has a right to be heard in appeal but the same is not so in a petition u/s 397 of the Code of Criminal Procedure. In the instant case in which the petition was admitted only on the point of sentence and a limited rule was issued; can the Court be asked by the Petitioner to go into the merits of the case? In my view, It is not so. Rather, the order is a composite order consisting of two parts; first part being dismissal of the petition regarding the point of conviction the Court exercised its jurisdiction and did not find the petition to be fit for being considered on the question of conviction. However, in the second part of the order, the Court felt that it may examine the quantum of sentence in view of various circumstances pleaded by the Petitioner u/s 397 of the Code of Criminal Procedure and hence the petition was admitted for the second part only and not for the first part. In other words, the opening of the first part stands closed and only the second part remains to be examined in exercise of its jurisdiction by the Court.
There is no substantive and statutory right for the Petitioner to be heard on the question of quantum of sentence much less on the merits of the case as clearly laid down u/s 403 of the Code of Criminal Procedure (Supra). Even in Balai Chandra Hazra Vs. Shewdhari Jadav, while considering the powers under Article 137 of the Constitution of India, the Hon''ble Supreme Court held that "although, an order of this Court confining special leave under Article 136 to certain points would imply a rejection of it so far as other points are concerned, yet, the Supreme Court has a constitutional power under Article 137 of reviewing its own orders. This power may, in very exceptional cases, consistently with rules made under Article 145 of the Constitution, be so exercised, in the interests of justice, as to expand the leave itself subject to due notice to the Respondents concerned and fair opportunity to meet the results of an extention of grounds, of appeal. "This goes to show that even considering the matter under Article 137 of the Constitution the Supreme Court can expand the leave itself in very exceptional cases only. But this power is not available to the High Court, though the High Court may if so satisfied look into the merits of the case suo motu in Its own discretion and not at the behest of any of the parties, even if any of the parties like to get the limited rule converted into an opeu rule.
Mr. Dayal, learned Counsel for the Petitioner, tried to take the Court to the records of the trial court and submitted that circumstances appearing against the accused-Petitioner were not placed before the accused while recording his statement u/s 313 of the Code of Criminal Procedure, even the evidences of prosecution witnesses were wrongly considered but here again the same question cornea up as to whether the parties have any statutory right to ask the Court to go into the merits of the case. This point has already been considered above and Section 403 of the Code of Criminal Procedure clearly puts a restriction on such a right.
The Petitioner had gone up in appeal and he did not challenge the appeal on facts rather the appeal was pressed on humanitarian grounds as question of imprisonment entailed dismissal from the service and he even prayed to the appellate court that a fine could be substituted for imprisonment, but the said plea was not accepted by the court of appeal. This further inhibits the scope of argument advanced by Mr. Dayal in submitting that this Court should go into the merits/facts also as the facts had not been challenged before the learned appellate court.
B.P. Griyaghey, J. had referred the point for consideration by n larger Bench while sitting singly but later he heard criminal Revision No. 808 of 1980 with S.S. Sandhawalia, C.J. (as they then were) and held that in the Revisional jurisdiction the High Court could limit the admission of the petition for Revision directed against the judgment of conviction on the point of sentence only, (1984 B.B.C.J. 871) Rabindra Nath Choubey and Ors. v. Charai Chaman and Anr. A number of decisions mostly decisions of the Single Judge Bench have been considers in that decision inducing a case reported in Shaikh Idris and Others Vs. Emperor, in which there were convictions u/s 457 and 480 of the Indian Penal Code and separate sentence of three months rigorous imprisonment and fine of Rs. 15/- each had been imposed but it was not said if the sentences were to run consecutively or concurrently. In the Revisional jurisdiction, the High Court considered the matter and consolidated the two sentences and the Court held that it held the power to re Under Sectionise the sentence, if it so felt. Since the accused were in jail for more than three months, they were set at liberty. Hut the case here is different us the sentences are not to be considered here, but the question is if Court can go into the merits of the case. The Petitioner has been under wrong impression that B.P. Griyaghey, J. doubted any judgment of Division Bench of this Court. In another case reported in 1977 Cr. L.J. (N.O.C.) 233, we can see that one of the several convicts came up in Revision1'' before the High Court which was allowed and the accused Petitioner was acquitted. The other accused had not filed any Revision but the Court held that they could be acquitted by the Revisional Court.
In a case reported in 1971 B.L.J.R. 967 Rajeshwar Prasad and Ors. v. state of Bihar the rule of enhancement was issued by the learned Single Judge of this Court the Petitioners came up u/s 439 of the Code of Criminal Procedure. Tins Court (Full, Bench) considered State Vs. Theyyan, which had observed that:
No doubt interference in Revision u/s 439 of the Code of Criminal Procedure is a matter of discretion vested in the High Court it is obvious that the discretion contemplate by the Section is a judicial discretion. Where the High Court is satisfied that the subordinate Judge has committed an illegality, the proper, course to be adopted by the High Court is to interfere and set right the illegality. This aforesaid view was partly upheld by the Patna High Court which said that it cannot be doubted that the power of Revision is a discretionary power and the Court may or may not Interfere with an order but in the aforesaid case, the rule of enhancement was discharged on the ground that both sides received injuries and the occurrence was seven years old. Both sides were close neighbours and the occurrence had taken place over a triffling matter. Thus, the earlier order i.e. rule of enhancement was not interfered with, to Narain Prasad Vs. The State of Rajasthan and Another, . the Court held that:
the Revisional jurisdiction in normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law and consequently there has been a flagrant miscarriage of justice. The process of appraising the evidence led by two parties can be equated almost to the process of holding a balance, the time honoured symbol of justice.
Appreciation of evidence is a mental process involving selection, assessment and conclusion, which statement ought to weigh and how much, cannot be rigidly kid down. The two courts below have consistently held that the accused-Petitioner by creating row prevented the Food Inspector from taking the sample and there is nothing for us to hold otherwise. Thus, the order of the court below was not interfered with, though too Court found that it has discretionary power to interfere into the order if there has been any flagrant miscarriage of justice. In that case the court was not satisfied with the pleas of the accused.
Recently in Sahab Singh and others Vs. State of Haryana, the Supreme Court held that the High Court is empowered to call for the record of the proceeding of any court subordinate to it u/s 397 read with Section 401 of the Code, of Criminal procedure. It is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence if the High Court suo motu issued rule of enhancement of sentence in its Revisional jurisdiction. In this case, the State Government had not filed an appeal for enhancement of sentence even though the failure on the part of the State Government to prefer an appeal did not however preclude the High Court from exercising suo motu power of Revision. Sub-section 4 of Section 401 of the Code of Criminal Procedure operates as a bar to the party, which has a right to prefer an appeal but has failed to do so, but that Section cannot stand in the way of the High Court exercising Revisional jurisdiction suo motu, The Revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the trial court and thus the order of the High Court was set aside.
Mr. Jawahardhari Singh, learned Counsel for the State, submitted that the limited rule as in the instant case is a composite order. The court can interfere only in exceptional cases if the High Court is satisfied that the order has resulted in gross miscarriage of justice. This power can be exercised even suo motu by this Court but any of the contesting parties has no right to say that the Court must go into the merits of the case. Accordingly, the case reported in Suggi Bind and Gajadhar Bind Vs. State, though it was not specifically discussed the later judgement. But the principle had been thoroughly discussed in 1984 B.B.C.J. 871 (supra). Much was argued regarding the view expressed in 1939 Lahore 1195 Harnam singh v. Emperor which stated that even appeal admitted on the question of sentence only does not preclude the same being argued on merits (if it iii found that no offence was committed by the Petitioner in the eye of the law, he will be entitled to claim his release forthwith; otherwise his petition may be liable to dismissal as the sentence that he has already served may not be considered adequate), But this View has been modified by the later decision as discussed earlier in Narain Prasad Vs. The State of Rajasthan and Another, and Sahab Singh and others Vs. State of Haryana, . In Sheo Saran Thakur and Others Vs. Bishwa Nath Thakur, a Division Bench of this Court held that the power of allowing composition of offence in an appropriate case was not interfered with under the provision of Sub-section 6 of Section 345 of the Code of Criminal Procedure (Old) even though an application had been admitted on the question of sentence only rather it was also that the being the position, it is immaterial whether an open rule was given at the time of admission or an application was admitted only on the question of sentence. So, the only requirement is that the High Court should be satisfied about the illegality in its own discretion and in exceptional cases this order can be interfered with. In 1974 B.L.J.R. 267 Mohan Poddar v. State of Bihar M.M. Prasad J. (as he then was) held that "there is no dispute and it is well established that the hands of this Court are not fettered by such a limited rule granted at the time of admission. It must, however, be remembered that this does not have the effect of laying down that in every case which has been admitted to be heard only on the question of sentence, the Court hearing the matter would consider the entire case on merits and then decide whether it is a case in which relief should be granted only on the question of sentence or in respect of conviction. If that were so, it would amount to nullifying the purpose for which the limited rule is issued What, I used to say is that it cannot be laid down as a general proposition of law that in all cases the Court must examine the entire facts of the case although rule has been issued only in a limited manner, ft must be only in extraordinary cases that this Court would deviate from the well established practice of hearing the case only for a limited purpose if a limited rule has been issued," Thus the considered view has come up that the court need not go into the merits at the instance of any of the parties in all cases rather the court can in exceptional cases or in exercise of its extraordinary jurisdiction may go into the merits of the case even though limited rule has been issued, if it finds patent error of law and gross miscarriage of justice in the order.
Mr. Jaiswal learned Counsel appearing on behalf of C.R.P.F. submitted that since a limited rule was issued for hearing on the point of sentence only, the Court may not go into the merits of the case as the Court had already applied its mind with regard to other points and did not accept the petition on those points except that on Sentence only. He relied on a case reported in ILR Volume-XI Patna series Page 697 Kuldip Das v. Emperor in which it was held as hereunder:
In my judgement, we are bound by the order of dismissal in part passed at the time of presenting the appeal and the only portion of the appeal which remains for decision is that in respect of which there was not an order of dismissal, that is to say the question of sentence,
The same view was reiterated in AIR 1971 SC 1792 Ram Swarup and Ors. v. state of Haryana in which Bhagawavi, J held that "But the Special leave granted by this Court being limited to the question as to the nature of the offence, we cannot permit the Appellants to go behind the findings of fact recorded by the High Court." The court found no reason to interfere into the order of conviction and sentence recorded by the High Court. This was very much relied upon in 1984 B.B.C.J. 871 (supra).
Mr. Jaiswal further added that the legal provision as contained in Section 403 of the Code of Criminal Procedure is quite clear W this point and no party has a right to be heard even before the Revision Court unless the Court itself wants to hear. The Court can hear the parties only when it sees flagrant miscarriage of justice or in its own discretion, To crown all, Mr. Jaiswal relied on State of Orissa Vs. Nakula Sahu and Others, . In which it was held that "It is now well settled that normally the jurisdiction of the High Court u/s 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on ft point of law which has consequently resulted in flagrant miscarriage of justice, The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, is a discretion which is informed by tradition, methodised by analogy and disciplined by system.
After considering all the points argued by different learned Counsel for the parties, I am of the view that u/s 403 of the Code of Criminal Procedure, no party has statutory right to be heard by the revisional Court but the Court may hear any of the parties, if it so likes, or may even hear the parties suo motu when the petition has been admitted on the point of sentence only, which is a composite order which, means that the petition was not admitted far consideration of the point of conviction, but only for consideration of the quantum of sentence. However, if the Court itself finds in exceptional circumstances that there has been flagrant miscarriage of justice, it can go into the merits of the case in its own discretion even though most of the parties be silent including the State as reported in Nadir Khan Vs. The State (Delhi Administration), . This view had been further exercised in State of Orissa Vs. Nakula Sahu and Others, . It was held by this Court in Cr. Revision No. 808 of 1980 as reported in 1984 B.B.C.J. 871 (supra) that "though there is no cast iron rule against it, yet by hallowed practice, the scopes of the Revisional jurisdiction is not a third reappraisal of evidence afresh but the same is directed to the somewhat larger issue of the correctness, legality or propriety of any finding, sentence or order." The same thing has been very clearly stated by the Supreme Court in State of Orissa Vs. Nakula Sahu and Others, .
To conclude, there is no merit in this application and the view expressed in 1934 B.B.C.J. 871 (supra) is held to be good with the emphasis that no party has any right to address a Revisional Court unless the Court so wants suo motu as discussed above. Thus, the reference is replied accordingly. Let the Revision application be heard on the question of sentence only by an appropriate Bench under the orders of the Hon''ble the Chief Justice.
I have perused the judgment of my learned of my learned brother R.N. Lal, J. and I agree with his reasons and conclusions but in view of the importance of the question involved in this case, I wish to add some reasoning�s of mine.
The moot question for consideration before this Full Bench is whether the High Court in its Revisional jurisdiction can go into the merit of the case and acquit the Petitioner, if a limited rule is issuer, on the question of sentence only at the time of admission of the Revision application.
The facts have already been narrated in the judgment of try learned brother. Therefore, it is not necessary to repeat the same.
The Petitioner was convicted and sentenced by the trial court. Being aggrieved by the aforesaid order of conviction and sentence, the Petitioner preferred an appeal before the Sessions Judge and the learned 2nd Additional Sessions Judge dismissed the appeal and maintained the conviction and sentence. The Petitioner came up in criminal revision before this Court and at the time of admission, limited rule on the question of sentence was issued and the records were called for. When the matter was taken up for final hearing before S.S. Hasan J. (as he then was), learned Counsel appearing on behalf of the Petitioner wanted to press the application on merit in spite of the fact that limited rule was granted to the Petitioner. The learned State counsel submitted that in view of the decision of this Court it the case of Rubindra Nath Choubey and Ors. v. Charai Chaman and Anr. 1984 B.B.C.J. 871, the Petitioner cannot press the application on merit. It appears that a similar question arose in Cr. Revision No. 1023 of 1980 and the matter was again referred to a larger Bench by Griyaghey, J (as he then was) vide order dated 28.11.1983 which carne up for decision before a Division Bench consisting of the then the Hon''ble the Chief Justice S.S. Sandhawalia and S.S. Hasan, J. The Hon''ble Chief Justice had announced his own decision dismissing the application but S.S. Hasan, J did not agree with the said decision in view of some conflicting decisions of the Division Bench faking contrary view to the decision held in the case of Rabindra Nath Choubey and Ors. v. Charai Chaman and Anr. (supra) and also under the impression that Griyaghey, J had doubted his own judgment in the case of Rabindra Nath Choubey and Ors. v. Charai Chaman and Anr. (supra) which is not factually correct. Rabindra Nath Choubey''s case (supra) was decided on 5.7.1984 whereas reference of Cr. Revision No. 1023 of 1980 was made on 23.11.1983 i.e. prior to the decision of Choubey''s case. Therefore, there was no occasion for Griyaghey, J to doubt his own judgment in Rabindra Nath Choubey''s case as it was delivered subsequently. The matter was placed before the Hon''ble the Chief Justice who referred this case before us for deciding the significant question noticed above.
It is necessary to indicate here that so far as Criminal Revision No. 1023 of 1980 in concerned, it stood dismissed for non-compliance of a peremptory order dated 24.9.1987, as it appears from the records of the aforesaid case,
In the case of Rabindra Nath Cuoubey and Ors. v. Charai Chaman and Anr. (supra), the Division Bench after considering number of decisions held that the High Court in its revisional jurisdiction cannot hear the application on merit where application has been admitted on the question of sentence only and limited rule has been issued. The aforesaid Division Bench relying upon the decisions in the case of Jagdev Singh and Another Vs. State of Punjab, and Ram Sarup and Others Vs. State of Haryana, also overruled Suggi Bind and Gajadhar Bind Vs. State, Kamaleshwari Thakur and Others Vs. State, Budhu Uraon and Ors. v. state of Bihar and 1982 B.L.J.R. 11 S.P. Mallik v. State of Orissa.
Mr. Dayal, learned Counsel appearing on behalf of the Petitioner in support of his contention referred to the decisions reported in III ILR (1924) Pat 804, Shaikh Idris and Others Vs. Emperor, , Kuldip Das Vs. Emperor, . So far as Shaikh Idris and Others Vs. Emperor, is concerned the Division Bench in the case of Rabindra Nath Choubey and Ors. v. Charai Chaman and Anr. (supra) has observed.
As already noticed, since the question was not even raised nor adjudicated before it the Bench decision in Sk. Idris''s case (supra) is in no way a precedent either directly or by way of an analogy. I am clearly of the view that the observation in the said case is no warrant for the proposition that where a Revision petition has been admitted expressly on the point of sentence alone, nevertheless accused is entitled to re-agitate the issue on evidence and merits as well. This case is therefore, plainly distinguishable.
Therefore, the case of Sk. Idris (supra) was distinguished by the Division Bench on the ground that what is of the essence in a decision is its ratio and not every observation and further that it is not a profitable task to extract a sentence here and there from a judgment and to build a point upon it. Of course limited rule was Issued in the aforesaid case but the Division Bench while examining the records doubted the legality of separate sentence under Sections 380 and 447 of the Indian Penal Code (for short ''Penal Code'') and found the case very suspicious, Therefore, it was cryptically observed that it, would he sufficient to remit the unexpired portion of the sentence and acquit the accused. In my opinion, the case of Sk. Idris will not help the Petitioner in this case and it was rightly distinguished by the Division Bench in the case of Rabindra Nath Choubey and Ors. v. Charal Chaman and Anr. (supra).
In order to appreciate the points involved in this case, it is necessary to examine the provisions of Section 397, 401 and 403 of the Code of Criminal Procedure (for short ''the Code'') Sub-section (1) of Section 397 of the Code reads as follows:
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 of the purpose of satisfying itself or himself as to the correctness, legality of propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding 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.
I am not concerned with Sub-section (2) and (3) of Section 397 of the code for the purpose of diciding the question involved in this case,
Section 401 of the Code reads as follows:
401 High Court''s power of revision.
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge the High Court may, in the discretion, exercise any of the powers conferred on a Court of appeal by Section 386, 389, 390 and 391 or on the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Coda an appeal lies and no appeal is brought no proceeding by way of Revision shall be entertained at the instance of the party who could have appealed.
(5) where under this Code and appeal lies but an application for Revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for Revision as a petition of appeal and deal with the same accordingly.
Section 403 of the Code reads as under:
Option of Court to (sic) parties. Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Curt exercising its powers of Revision but the Court may if it thinks fit, when exercising such powers, hear any party either personally or by pleader.
The object of this revisional legislation u/s 397 of the Code is to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction, in. order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted en the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals. The Courts numerated in Section 397 have power to call for the records of subordinate courts for the purpose of satisfying themselves as to the correctness, legality or propriety of the orders passed by the lower courts. The object of the legislation in this section is to set right some patent defect or error.
Section 401 deals with the High Court''s power of Revision. The High Court possesses a general power of superintendence over the actions of Courts subordinate to it. On its administrative side, the power is known as the power of superintendence. On the judicial side, it is known as the duty of revision. The High Court can, at any stage, of its own motion, if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them. The revisional jurisdiction of the High Court is discretionary. The Section confers no right on a person convicted either by the trial court or a lower appellate court to invoke the revisional jurisdiction of the High Court. The exercise of that jurisdiction is subject to the limitations imposed by the Section, that is to say, it is purely discretionary. The High Court can exercise the jurisdiction on its own motion even without any application having been made to it. In this connection, it is also relevant to see the provision of Section 403 of the Code which has been quoted above. Section 403 has laid down that save and otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercising its power of Revision but the Court may if it thinks fit, when exercising such powers hear any party either personally or by pleader. Section 403 provides that no party has any right to be heard in Revision either personally or by pleader except in case where any patent and illegal order has been passed which is prejudicial to the accused persons. Therefore, the High Court in as Revisional jurisdiction can, if it so wishes, consider the question of sentence and can interfere if the sentence is manifestly excessive but it must be exercised sparingly and only in clear cases.
Considering the aforesaid provisions of law, in my considered View, as a matter of right, no party has a right to address the Court on merit if the High Court has given indulgence to the party to hear the matter on the limited question of sentence, only.
The reason is obvious. When the party files Revision application, against the conviction and sentence, the High Court examines the impugned judgment and if it does not find any glaring defect in the procedure or an error on a point of law resulting in a flagrant miscarriage of justice, generally dismisses the application. But if the Court issues limited rule on the question of sentence, and calls for the records, it means that by implications the Court has passed a composite order, that means the Court has dismissed the Revision application so far as conviction of the Petitioner is concerned, but granted indulgence to the party to examine the matter on the question of sentence only because it is purely a discretionary remedy. Once the Court dismisses the application on the point of conviction, then the High Court can not hear the application on merit because it means that the High Court has reviewed its earlier decision taken at the time of admission of the application which, in my opinion, the High Court can not do.
There is a distinction between Revision and appeal, The Revision is not a right and is only a procedural facility afforded to a party while appeal it a continuation of the proceeding The jurisdiction of the High Court in revisional application can be exercised only in exceptional cases and is severely restricted and it cannot embark on re-appreciation of evidence.
Now coming to the decisions referred to above by Mr. Deyal, in the case of Hussain Buksh Mian v. Emperor, (sic) ILR (1924) Pat 804 rule was issued on the question of sentence only. In the aforesaid case three persons, namely, Hussain Buksh, Pachkhodi Mian and Khairati Mian were convicted of certain offences in connection with a theft and killing of a cow. The first applicant was convicted of an offence punishable under the provisions of Section 429 of the Penal Code (mischief by killing cattle) and was sentenced to one years rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine, he was to undergo four months further rigorous imprisonment, Second and third applicants were each found guilty of two different offences; first of an offence punishable u/s 379 of the Penal Code (theft) and secondly of the same offence as that of which the first applicant had been convicted. In respect of first offence i.e. theft, they were sentenced to each to six months rigorous imprisonment while in respect of the offence punishable u/s 429 of the Penal Code, they were each sentenced to a further one year rigorous imprisonment. The sentences were ordered to run concurrently. The appellate Court upheld the convictions but modified the sentences which had been passed. An application was then made in the High Court in its Revisional jurisdiction and a rule was issued on the question of sentence only. The Division Bench while examining the records of the case found that so far as second and third applicants, who were convicted of both offences of theft and mischief are concerned, the circumstances do not warrant any such double convictions. Therefore, it was held that the double sentence for theft and mischief was illegal and improper, and Their Lordships held that the two convictions'' recorded against the second and third applicants cannot stand and as such Their Lordships set aside this conviction u/s 429 (mischief) With regard to question of sentence upon these two applicants, Their Lordships held as follows:
With regard to question of sentences upon these two applicants, as their conviction under the provisions of Section 429 has to be set aside only sentence which will stand against them will be that recorded against them in connection with the offence of theft of which they have been convicted; i.e. a sentence of six months rigorous imprisonment. Under the circumstances of this case, I see no reason why that sentence should really be reduced; it was a somehow barefaced theft and the carrying out of it shown from the evidence the determination and effrontery of the applicants.
However, Their Lordships further observed that the position of the first applicant was some what different and he was not seen when the theft was committed. Therefore, Their Lordships for want of sufficient, evidence set aside the conviction recorded against the first applicant.
On the basis of this ruling, Mr. Dayal strenuously argued that even in the limited rule, the High Court can examine the evidence but as I have already indicated above that revisional jurisdiction can be exercised only in exceptional cases where the Court finds patent illegalities which resulted in miscarriage of justice. In the aforesaid case of Hussain Buksh and Ors. v. Emperor (supra), Their Lordships found that there was manifest illegality so far as conviction concerned. Therefore, the High Court exercised its power but that does not mean that the aforesaid ruling in the case of Hussain Buksh and Ors. v. Emperor (supra) has laid down a general rule for exercising Revisional power almost all the cases. Therefore, this case will not help the Petitioner.
In the case of Kuldip Das Vs. Emperor, , three persons were tried by the Court of Sessions with a jury on charge under Sections 147 and 395 of the Penal Code and were convicts and sentenced. One of the Appellants came in appeal before this Court and the order which was passed in the appeal was:
The appeal is dismissed except as to the question of sentence on which only it will be heard.
Another Appellant Raghunandan Singh also filed appeal in which the following order was passed:
This appeal will be heard with the appeal of Kuldip Das en the question of sentence only. Quoad ultra it in dismissed.
In the aforesaid case, the learned Counsel had urged that though the appeals have been admitted on one point only, they are under the Code and the decisions, entitled to be heard upon the whole appeal. Reliance was placed upon the decision in the case of Gaya Singh v. Emperor AIR 1925 Pat 453 which followed the decision in the case of Nafar Sheikh Vs. Emperor, . Reliance was also placed upon the decision in the case of Rameshwar Prashad Verma Vs. Emperor, but Their Lordships held that where a Bench hash admitted the appeal on the question of sentence''s only having determined adversely of other considerations which could be advanced in favour of the Appellants, it is not open to the Bench hearing the appeal to go behind such an order of dismissal. Their Lordships also doubted the decision in the case of Gaya Singh v. Emperor (supra) and distinguished the case of Rijhu v. Emperor (supra). This case in my view is not at all helpful to the Petitioner rather it goes against him so far as the determination of the question involved in this cage is concerned. We are considering the Revisional jurisdiction of the High Court and not the appellate jurisdiction. Kuldip Das''s case (supra) rather strengthens our view in a sense that when in appellate jurisdiction Their Lordships did not hear the appeal no merit when it was admitted on the question of sentence only where the scope is larger than the Revisional jurisdiction, the question does not arise in the Revisional jurisdiction of this Court which can be invoked only in exceptional or to say, rarest of rare cases.
The learned Counsel has also drawn tention to a decision in the case of Sha Prasad Sah v. The State of Bihar 1990 J. 200 1990 (2) PLJR 342 but in the said case rule of enhancement of sentence been issued in two Revision applications were disposed of by the common judge referred to above Where it was held that a rule of enhancement of sentence has issued by this Court in exercise of its (sic) jurisdiction the Court may necessary have to examine the case on merits which entitle the accused to obtain an order of ittal. Thus, in Their Lordships view, the (sic) rule issued by this Court with regard to (sic) of sentence only, loses all its (sic) in view of issuance of notice to the accused persons directing them to show cause as to sentences should not be enhanced.
The facts of this case is quite distinguishable the facts of the present case. It was rightly served that where rule of enhancement of tence is issued by the Court in exercise of revisional jurisdiction, naturally, the Court is examine the case on merits. But that is the case here. Therefore, this case is also at all, helpful in deciding the question involved Under Sectioned in this application.
Reference may be made to some of decisions of the Supreme Court. In the case of Pranab Kumar Mitra Vs. The State of West Bengal and Another, the Supreme Court has observed that indeed the revisional jurisdiction vested in the High Court a discretionary power which is to be exercised said of justice. Whether or not the High Court will exercise its revisional Jurisdiction in particular 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 Old Code read with Section 435 (of the old Code) equivalent to Sections 401 and 397 of the new Code do not create any right in the litigant, but only converse 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.
It is well established that the hands of this Court are not fettered by such a limited rule granted at the time of admission but it must, however, be remembered that this does not have the effect of laying down that in every case which has been admitted to be heard on the question of sentence only, the Court would consider the entire case'' on merits and then decide whether it is a case in which reliefs should be granted only on the question of sentence or in respect of conviction. It must be only in extraordinary cases that this Court, would Deviate from the well established practice of hearing the case only for a limited purpose if a limited rule has been issued.
Even in the case of Narain Prasad Vs. The State of Rajasthan and Another, the Full Bench has observed that Revisional jurisdiction is normally to be exercised only in exceptional cases where there is glaring defect in the procedure or there is a manifest error on the point of law and consequently there has been a flagrant miscarriage of justice.
Great stress was laid down by the learned Counsel for the Petitioner upon a decision In the case of AIR 1939 295 (Lahore) . In the aforesaid case the application was admitted on the question of sentence only but while hearing the matter, Their Lordships found that there was some confusion and conflict as to the interpretation of the word "detained" used in Section 498 of the Penal Code. The matter was referred to the Division Bench and the Division Bench after hearing counsel for the Petitioner and the learned. Advocate General for the Crown answered the reference in the following words:
That the word ''detains'', in our opinion clearly implies some act on the part of the accused by which the woman''s movements are restrained and this again implies unwillingness on her part. ''Detention'' cannot include persuasion by means of blandishment or similar inducments, which would leave the woman free to go if she wished. We are also of opinion that the word ''details'' cannot he reasonably construed as having inference to the husband.
Therefore, the Division Bench referred the case to the learned Single Judge for decision on merits, I have already indicated above that, where the Court found that there has been some misconception and misinterpretation of law which resulted in miscarriage of justice, the Court certainly can interfere into the matter. In the case of Harnam Singh v. Emperor (supra) Their Lordships found that some confusion has been made regarding the interpretation of word ''detained''. Therefore, their Lordships directed the learned Singh Judge to hear the application on merit hut that does not mean that this case has laid down a general proposition of law that once Ire application has been admitted on the question of sentence High Court is bound to hear the party on merit as well.
In this connection, reference may be made to the decision in the case of Jagdev Singh and Another Vs. State of Punjab, which has been noticed in the case of Rabindra Nath Choubey (supra), In the aforesaid case, the Supreme Court observed as follows:
The counsel has however, contended that whole case should be considered to be open for consideration by this Court, the restricted special leave notwithstanding because the discretionary power of the Court under Article 135 of the Constitution intended to be exercised to set right grave injustice and if a case for such interference is made out even at this stage, the limitation imposed while granting special leave should not be held as a bar to the power of the Court to set right such grave injustice, is misconceived and difficult to accept. While granting special leave this Court considered the whole case and came to the conclusion that in the interest of justice only the applicability of the Act required examination. On no sound principle can this Court now ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting special leave.
In the case of Ram Sarup and Others Vs. State of Haryana, the Supreme Court held that special leave granted being limited only to the question of sentence, Appellant cannot be permitted to go behind the findings of fact.
Both the aforesaid two decisions km also been explained in the case of Balai Chandra Hazra Vs. Shewdhari Jadav, . In the aforesaid case, the Supreme Court has held as under:
Article 136 confers power on this Court in its discretion to grant special leave from any judgment, decree, determination sentence or order in any case or matter passed or made by any Court or Tribunal in the territory of India. Ordinarily once special leave is granted, it is against the judgment, decree, etc. However, by practice this Court sometimes limits the leave to certain special points. If the leave is limited to specific points, obviously the whole case is not open before the Court hearing the appeal.
Thu Supreme Court has also taken notice of the decision in Nafe Sing v. State of Haryana, 1971 3 SCC 934 where the Supreme Court declined to examine the question because special leave was limited to the question of sentence only.
In this connection, I may also refer to the case of State of Orissa Vs. Nakula Sahu and Others, where the Supreme Court has observed that although the revisional power of the High Court u/s 439 read with Section 435 (old Code) is as wide as the power of Court of appeal u/s 423 of the Code (old), it is now well settled that normally the jurisdiction of the High Court u/s 439 is to be exercised only in exceptional cares where there is glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Inspite of wide language of Section 435, the High Court is not expected to act u/s 435 and 439 as if it is bearing an appeal.
Having examined the question very closely and having considered the matter in all its ramification in the light of the provisions of law and number of decisions stated above, I unhesitatingly hold that once the Bench at the time of admission of a criminal Revision application has applied its mind and issued a limited rule on the question of sentence only, it is not open for the Bench to go behind the order of the admitting Bench and the party cannot press the application on merit. In that view of the matter, there is no merit in this reference and the view express in the case of Rabindra Nath Chouby (supra) is held to be a good law. The admitting Bench expressly directed that the Revision petition would be heard on the question of sentence only. I would, therefore, decline from entering into the merits.
For the reasons stated above, I am of the opinion that the High Court cannot go in the merit of the case because limited rule was issued at the time of admission of this Revision application. Therefore, let the Revision application be placed before the Hon''ble the Chief Justice to place it before an appropriate Bench to hear the application on the question of sentence only.
The reference is answered accordingly.
Indu Prabha Singh, J.
I agree.