Vinod Kumar Kukreja and Another vs State of Uttar Pradesh

Giridhar Malaviya, J.—Vinod Kumar Kukreja smd Vipal Kumar Kukreja have filed the present revision in the High Court against the judgment and order dated 27-2-1989 of the IVth Additional District Judge, Aligarh in Criminal Revision No. 30 of 1988, whereby he had set aside the order dated 27-11-1987 of the Chief Judicial Magistrate, Aligarh in Case No. 259 of 1986 State v. Vinod Kumar Kukreja and Ors. by which he accepted the application of the accused persons to try them himself u/s 330, 323, 504, IPC as according to them no offence u/s 306 IPC was made out against them.

At the stage of admission of the revision in the High Court, a question was raised before the learned Single Judge whether the revision against the order of revising authority viz. IVth Additional District Judge was maintainable in the High Court or not? Considering this question to be of general importance, the learned Single Judge after hearing the learned Counsel for the parties at some length and after perusing the cases cited by them deemed it proper to refer the following question to a larger Bench:

Whether a revision against an order of the Sessions Judge passed in exercise of his revisional jurisdiction, concurrent with the High Court, in a revision preferred by a party against the order of an inferior court lies to the High Court by the other party?

We have heard Sri Markandey Katju, learned Counsel appearing for the applicant and Sri K.C. Saxena, learned Additional Public Prosecutor for the State in this case.

It will be useful to quote some of the provisions of the Code of Criminal Procedure concerning revision to be filed either before the court of Sessions or High Court. Section 397 Code of Criminal Procedure reads as under:

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 (I) 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 of the Code of Criminal Procedure reads as under:

Sessions Judges'' power 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-section (2) and (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 decisions 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.

A perusal of these two sections made it absolutely clear that the High Court can call for and examine the record of any proceeding before any inferior criminal court situate within its local jurisdiction for the purposes enumerated u/s 397 itself. The court of Additional Sessions Judge or for that matter that of the Sessions Judge is a court inferior to the High Court and as such the High Court has full jurisdiction to entertain a revision against the orders of the Sessions Court. However, Sub-clause (3) of Section 397 Code of Criminal Procedure is in the form of an exception to Sub-section (1) of Section 397, which gives jurisdiction to the Courts to entertain revisions against the orders of the inferior criminal courts. This exception is on the right of a party to maintain only one revision with the result that in cases where a person has first challenged the order of the inferior court in the court of Sessions and has not conceded before the Court of Sessions, in that event that person has been prevented to make a second application in revision before the High Court. No such exception has been made in the case where the revision has been filed in the High Court by a person who had not challenged the order of the first court in the court of Sessions. On a plain reading of the section mentioned above, it leaves no room for doubt that a revision by a person in the High Court, who was an opposite party in a revision before the court of Sessions, shall lie to the High Court against the order of the Sessions Judge which has allowed the revision of the person who had challenged the order of a court inferior to the court of Sessions before the Sessions Judge. Even Sub-clause (3) of Section 399 Code of Criminal Procedure does not restrict the right of a person who had not preferred a revision earlier against the order of inferior court in the court of Sessions to file a revision in the High Court. All that Section 399(3) says is that where any application in revision is made by any person before the Sessions Judge, the decision of the Sessions Judge in respect of 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 (Emphasis supplied). Thus the restriction u/s 399(3) is also imposed in respect of a revision in the High Court by such person who has already preferred a revision in the court of Sessions and is not applicable to an opposite party in a revision which had been filed in the court of sessions. Thus the conclusion is irresistible that a revision by a party which was only an opposite party in the court of Sessions shall lie in the High Court against an order of Sessions Judge passed in a revision pending before it.

Sri Markandey Katju, learned Counsel for the applicant wanted to place reliance on the judgment of In Re: Puritipatti Jega Reddy, and Kasinath Biswal v. Hira Bhoi 1987 Cri.L.J. 350 in support of his contention that a revision at the instance of opposite party in the revision before the court of Sessions is maintainable in the High Court. However, these are cases relating to the cases at the instance of the same party in the High Court which was unsuccessful in the court of Sessions and both these decisions consider the powers of the High Court u/s 482 Code of Criminal Procedure holding that in suitable cases, although a second revision by such person is barred, the revision being not maintainable, an application in the High Court u/s 482 Code of Criminal Procedure would lie. This point is not involved in the present case and in any case the said controversy is settled by the Full Bench judgment of our High Court in the case of H.K. Rawal v. Nidhi Prakash 1989 AWC 632. As these cases have no relevance on the question in issue, it is not necessary to discuss these cases.

The result is that our answer to question referred is in the affirmative, which is as follows:

A revision against an order of Sessions Judge passed in exercise of its revisional jurisdiction shall lie to the High Court at the instance of the party who was an opposite party in the revision before the court of Sessions.

Let the papers of this case be now placed before the learned Single Judge with our answer.