State of Karnataka vs Maregouda

Rathnakala, J.—The State has filed this appeal against the order passed by the learned Sessions Judge in Crl.A. No. 23/2014 in allowing the appeal filed by the respondent accused. The accused was convicted by the learned JMFC for the offence punishable under Section 78(iii) of Karnataka Police Act, 1963 and was ordered to pay fine amount of Rs. 100/-. Aggrieved accused challenged his conviction before the Sessions Court. After hearing both, the learned Sessions Judge allowed the appeal and set aside the order of sentence passed against accused No. 2 (respondent herein who had already pleaded guilty) by the trial Court.

Sri V.M. Banakar, learned Additional S.P.P. for the appellant/State submits that the appeal filed by the accused was not maintainable under Section 376 (c) of Cr.P.C. and the learned Sessions Judge could not have entertained the appeal as there was overwhelming evidence placed by the prosecution, to bring home the guilt of the accused for the offence under Section 76 (iii) of the Karnataka Police Act.

In reply, Sri J. Basavaraj, learned Counsel for the respondent submits that rightly or wrongly, the learned Sessions Judge considered the case of the accused on it''s merits. Though the appellate jurisdiction of a Court has wider conspectus than the revision, the Sessions Court having concurrent jurisdiction to entertain the appeal and also the revision, since disposed of the matter on merits, this appeal is not maintainable. The State did not question the maintainability of the appeal at the relevant point of time when the matter came for consideration before the learned District Judge. It is for the first time they are raising the new contention before this Court regarding question of law, which cannot be entertained.

It is the mandate of Section 376 (c) of Cr.P.C. that against the order of learned JMFC, imposing fine not extending to Rs. 100/-, no appeal would lie in petty cases. But under Sections 397 and 399 of Cr.P.C. there is no such restriction on the quantum of fine amount to examine the correctness of legality and propriety of it''s order. For the benefit of reference, the said provisions read thus:

"Section 397: Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of Section 398.

(2) The powers of revision conferred by Sub-section (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.

Section 399. Sessions Judge'' s powers of revision.

(1) 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.

(2) 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 proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."

Wherefore there is no bar on the right of the accused to challenge an order of fine or suspension immaterial of it''s quantum in a revision before a District Court. In that view of the matter, the very proceedings before the District Judge is vitiated. This appeal is filed challenging the merits and findings of the District Judge also. Since this appeal is considered only about the legality of the proceedings, the merits of the case is not gone into. The matter needs to be adjudicated before proper forum on its merits.

For the discussion supra, the appeal is allowed. The order of the learned Sessions Judge dated 18.06.2014, in Crl.A. No. 23/2014 is set aside. The matter is remanded to the District Court to convert the appeal into revision and dispose of the revision in accordance with law by affording opportunity to both parties. All the contentions are left open. Ordered accordingly.