REVISION AND REFERENCE

JAMIA MILLIA ISLAMIA

REVISION AND REFERNACE GUIDED BY DR. ASAD MALIK 

SAHIL CHOWDHURY 5TH YEAR

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ACKNOWLEDGEMENT Firstly, I would like to express my profound sense of gratitude towards the Almighty “ALLAH” for providing me with the authentic authe ntic circumstances which were mandatory for the completion of my research work. I am also thankful to Dr. ASAD MALIK , for his invaluable support, encouragement, supervision and useful suggestions throughout this research work. His moral support and continuous guidance enabled me to complete my work successfully. His intellectual thrust and blessings motivated me to t o work rigorously on this study. In fact this study could not have seen the light of the day if his contribution had not been available. It would be no exaggeration to say that it is his unflinching faith and unquestioning support that has provided the sustenance necessary to see it through to its present shape.

Sahil Chowdhury B.A.LL.B (Hons) 9 th Semester 5th Year 1|Page

TABLE OF CONTENTS INTRODUCTION TO CRIMINAL PROCEDURE CODE, 1973............................................ 3 IMPORTANT CHANGES..................................................................................................... 4 INTRODUCTION TO REVISION ........................................................................................... 6 THE POWER TO CALL FOR AND EXAMINE THE RECORD OF THE LOWER COURT .................................................................................................................................................. 10 THE JURISDICTION OF THE HIGH COURT AS A REVISIONAL POWER ................... 10 THE DIFFERENCE BETWEEN THE APPELLANT AND REVISIONAL JURISDICTION OF THE HIGH COURT .......................................................................................................... 11 SECTION 401 AND ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA ....... 12 WHO MAY APPLY FOR REVISION.................................................................................... 12 WHETHER THE HIGH COURT CAN EXERCISE ITS POWER OF REVISION WHERE AN APPEAL IS PENDING AGAINST THE IMPUGNED ORDER BEFORE THE SESSIONS COURT................................................................................................................. 13 POWERS OF A COURT IN REVISION ................................................................................ 13 WHO CAN INVOKE REVISIONAL JURISDICTION .........................................................14 HOW THE POWERS ARE EXERCISED .............................................................................. 17 CASE LAWS ...........................................................................................................................18 INTRODUCTION TO THE REFERENCE ............................................................................ 21 BIBLIOGRAPHY .................................................................................................................... 26

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INTRODUCTION TO CRIMINAL PROCEDURE CODE, 19731 Prior to the conquest of India by Muslims, the Hindu Criminal Law was prevailing in India, which was well established and well defined. Circumstantial evidence was sufficient to  punish or acquit a criminal. Accused was entitled to produce any witness in his defence. Trial  by ordeal was frequently used to determine the guilt of the person. Also trial by jury existed. The Punishment was considered to be a sort of expiation which removed impurities from the man. After the conquest of India by the Muslims, the Mohammedan Criminal Law came into existence. The courts while deciding the criminal cases were guided by this law. In 1773, the Regulating Act was enacted under which a Supreme Court was established in Calcutta and later on at Madras in Bombay. This introduced English law in India. The Supreme Court was to apply British Procedural Law while deciding the cases of the Crowns subjects. In 1790, Lord Cornwallis found the Mohammedan Criminal Law defective in many respects and introduced reforms. After the Rebellion of 1857, the crown took over the administration in India. The Criminal Procedure Code, 1861 was passed by the British parliament. After the Mutiny in 1857, the British Government dissolved the East India Company and direct responsibility of administration in India was taken by the Crown. Faced many difficulties in controlling Judicial Administration in the absence of suitable substantive as well as procedural legislation. With a view to provide criminal procedural law to the British administrators in India, the British Parliament passed a Code of Criminal Procedure in 1861 which was amended in 1869 and finally replaced by Code of Criminal Procedure 1872. In 1898, the Code of Criminal Procedure was supplemented by a new Code vide Act V of 1898, which formed the basis of the present Code of Criminal Procedure. After Independence, this Code was amended from time to time by various Central and State Acts. In 1955, the amendments in this Code were made with intent to simplify procedures and speed up trials. Finally, in 1973, major amendments were made in the Code of Criminal Procedure, 1898 and the old Code was replaced by the Code of Criminal Procedure, 1973. Criminal Procedure Code, 1973 is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April, 1

 ACT NO. 2 OF 1974 [25th January, 1974.]

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1974. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Additionally, it also deals with public nuisance, prevention of offenses and maintenance of wife, child and parents.

IMPORTANT CHANGES The preliminary enquiry which precedes the trial by Court of Sessions was abolished. Provisions made to enable adoption of summons procedure for the trial of offences  punishable with imprisonment up to 2 years instead of up to 1 year. The scope of summary trial has been widened by including offenses punishable with imprisonment up to 1 year instead of 6 months. The powers of revision against interlocutory orders have been taken away. The provision for mandatory stoppage of proceedings by a subordinate court, on the mere intimation from a party of his intention to move a higher court for transfer of case has been omitted and a further provision has been made to the effect that the court hearing the transfer application shall not stay the proceedings unless it is necessary to do so in the interest of  justice. When adjournments are granted at the instance of either party, the court has been empowered to order costs to be paid by the party seeking adjournment to the other party. Provisions have been made for the service of summons by registered post in certain cases. In  petty cases, the accused has an opportunity to plead guilty by post, and to remit the fine specified in the summons. If court of appeal or revision discovers that any error, omission or irregularity in respect of charge has occasioned failure of justice, it need not necessarily order a retrial. The facility of  part heard cases being continued by successor in office available in respect of Courts of Magistrates has been extended to Courts of Session. Judiciary has been completely separated from the executive. Provisions have been made for legal aid to indigent accused in cases triable by Court of Session. The State government may extend this facility to other categories of cases. The court has been empowered to order  payment of compensation by the accused to the victims of crime to a larger extent than was  provided in the old Code. When a commission is issued for the examination of witnesses for the prosecution, the cost incurred by the defence including pleaders fee, may be ordered to be paid by the prosecution.

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An opportunity is given to the accused to make representation against the punishment before it is imposed. And also in 2013 amendment act, important changes were brought in for the well-being of the society. This is the well-known and accepted fact that the Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and  promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. Of equal importance is the maintenance of peace and law and order in the society. Unless there is peace, no real progress is possible. Societal peace lends stability and security to the  polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in scientific and technological spheres. Just as liberty is precious to an individual, so is the society interested in peace and maintenance of law and order in the society. Both are equally important. This fact was recognized about 2500 years ago by Heraclitus of Ephesus. He had observed:“ A major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license”.2

2

Arthur T. Vanderbilt in his article “ United We Stand”; th

http://lawcommissionofindia.nic.in/reports/177rptp1.pdf, Law commission report of India 177   report

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INTRODUCTION TO REVISION As the code says that there is no right to appeal in every case and it is confined to such cases as are specifically provided by the law. Even in such specified cases the code allows only one appeal and a review of the decision of the appellant court is not normally permissible by way of further appeal to yet another higher court. In order to avoid the possibility of any miscarriage of justice in cases where no right of appeal is available the code has devised another review procedure, namely REVISION. Section 397 to 405 of Criminal Procedure Code deals with the powers of revision conferred on the higher courts and the procedure to regulate these powers. The powers of revision conferred upon the higher courts are very wide and are purely discretionary in nature. Therefore no party has right t heard before any court exercising such powers. The provisions for reviewing the decision of a criminal court are essential for the due  protection of life and liberty and are rooted in the conception that men including the Judges and Magistrates are fallible. Appeal as a review procedure was discussed earlier in Lecture 16. In cases where no appeal has been provided by law or in cases where the remedy of appeal has for any reason failed to secure fair justice, the Code provides for another kind of review  procedure, namely, „revision‟. Very wide discretionary powers have been conferred on the Court of Session and the High Court for the purp ose of „revision‟. While making  provisions for extensive powers of revision for ensuring correctness, legality, and propriety of the decisions of criminal courts, the Code has also taken care to see that this review  procedure does not make the judicial process unduly cumbersome, expensive or dilatory. The basic object behind the code in section 401 is to empower the high court to exercise the  powers of an appellant court to prevent failure of justice in cases where the code does not  provide for appeal. The power however is to be exercised only in exceptional cases where there has been a miscarriage of justice owing to: - a defect in the procedure or a manifest error on the point of law, excess of jurisdiction, abuse of power, where decision upon which the trial court relied has since been reversed or overruled when the revision appeal is being heard. In exercising the power of revision, which is discretionary, the court should always  bear in mind the limitation that grab of exercising its power of revision; it cannot ion effect exercise the power of appeal in the face of statutory prohibitions.

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In cases where no appeal has been provided by law or in cases where the remedy of appeal has for any reason failed to secure fair justice the criminal procedure code provides for another kind of review procedure, viz. revision. Revision lays both in pending and decided cases and it can be filed before a High Court or a Court of Session. Very wide discretionary  powers have been conferred on the Sessions Court and the High Court. The object of the revision 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 of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. The purpose of revision is to enable the revision court to satisfy itself 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 the inferior criminal court. The Revisional jurisdiction is derived from three sources:a) Section 397 to 401 of the Cr PC;  b) Article 227 of the Constitution of India; c) The power to issue the writ of certiorari. Under Section 397(1) of the Cr PC, 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 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. Under Section 398 Cr PC, the revision Court may make an order for further inquiry. Further inquiry entails supplemental inquiry upon fresh evidence. The power under Section 398, Cr PC is not co-extensive with Section 397, Cr PC but extends far wider as the record can „otherwise‟ be examined by the revision Court without recourse to Section 397, Cr PC.

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Section 399, Cr PC deals with Sessions Judge‟s power of revision. Under sub section (1), the Sessions Judge, in the case of any proceeding the record of which has been called for by himself under Section 397(1), may exercise all or any of the powers which are exercisable by the High Court under Section 401(1) of the Code of Criminal Procedure. Section 401(1) of the Cr PC reads as follows: - 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 Section 307 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. 3  The Allahabad High Court in Om Pr atap Sin gh vs. State    has observed that the revisional

 power of this Court under Sections 397 and 401, Cr PC is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by the subordinate Courts. These two Sections do not confer unfettered jurisdiction on this Court for reappraisal of evidence. In fact, the revisional power of this Court is to see that justice is done in accordance with the recognized rules of criminal  jurisprudence and the subordinate Courts do not exceed their jurisdiction or abuse their  powers vested in them under the Code of Criminal Procedure. The High Court in a revision is empowered to interfere with an order of acquittal and direct fresh trail. While High Court sitting in appeal under Section 386 of the code, can convert finding of acquittal into one conviction, Section 401, subsection (3) debars conversion of acquittal into conviction. High Court, however, would not disturb a finding of fact unless it appears that trail court shut out any evidence, or overlooked any material evidence or admitted inadmissible evidence or where there has been manifest error on a point of fact. Circumstances in which retrial may be ordered, without being exhaustive are a) where trail court has no jurisdiction to try a case;  b) where trail court has wrongly shut out evidence which prosecution sought to produce; c) where material evidence has been overlooked; d) where acquittal is based on a compounding of the offence which is i nvalid under law;

3

 1995 Cr LJ 3887

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e) Where the appellate court has wrongly held evidence admitted by trail court as inadmissible. 4 

In State of M ahar ashtr a vs. Jagmohan Sin gh Ku ldi p Sin gh and Other s , the Supreme Court has held: - „in exercise of revisional power High Court cannot undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of trail court and appellate court.' 5 In the case of Ayodhya Du be vs. Ram Sum er Singh  , where accused was acquitted without

considering material evidence with inconsistent and faulty reasoning and probative value of FIR was also ignored, High Court was justified in directi ng retrial. The revisional powers though are quite wide, have been circumscribed by certain limitations. Such as a) in such cases where an appeal lies but there is no appeal brought in, originally no  proceeding by way of revision shall be entertained at the instance of the party who would have appealed.  b) The revisional powers are not exercisable in relation to any interlocutory order passed in any appeal, inquiry and trial. c) The court exercising revisional powers is not authorized to convert a finding of acquittal into one of conviction into one of convection. d) A person is allowed to file only one application for revision either to the Court of Session or to the High Court if once such an application is made to one court, no further application by the same person shall be ent ertained by the other court. All this provisions and the limitations are being given by the section 401 of the Criminal  procedure code of 1973. Further the researcher would like to go with its provisions separatel y and what all lies with the high court in such matters with the help of the case laws.

4

 2004 (7) SCC 659  AIR 1981 SC 1415

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THE POWER TO CALL FOR AND EXAMINE THE RECORD OF THE LOWER COURT

According to Section 397(1), the High Court or a Sessions Court may call for and examine the record of any proceeding before any inferior criminal court situate within its local  jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding or order of such inferior court. On examination of such record if the High Court or the Sessions Court considers any corrective action necessary, it has ample powers to do so under Sections 398-401. The „proceeding‟ referred to in Section 337(1) above includes any judicial proceeding taken  before any inferior criminal court even though it may not relate to any specific offence. The expression „inferior criminal court„ only means judicially inferior to the High Court (or Sessions Court). All Magistrates, whether executive or judicial, and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge [Explanation to Section 397(1)]. 6 The Sessions Judge is also inferior to the High Court within the meaning of Section 397(1), and the High Court may call for and examine the record of any proceedings before a Sessions Judge? 7 The High Court or the Sessions Court may, when calling for such record under Section 397(1), direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail on his own bond pending the examination of the record [S.397(1)]

THE JURISDICTION OF THE HIGH COURT AS A REVISIONAL POWER The High Court‟s power to jurisdiction to act as a revisional court has to be deduced from all the provisions in section 397-401 read together. The points on which they are read together are as follows:

6

  Collector passing an order of confiscation or otherwise under the Essential Commodities Act or the Government constituting as an appellate authority under that Act cannot be considered as inferior criminal court: G.C.Venkateswarlu v. State ofA.P., 1986 Cri LJ 1713 (AP HC). 7  Machandra v. Jambeswar, 1975 Cri LJ 1921, 1922 (Ori HC); Thakur Das v. State of M.P., (1978) 1 SCC 27: 1978 SCC (Cri) 21, 28: 1978 Cri LJ 1.

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

The High Court may itself call for the record of an inferior court under section 397 either on the application of a party aggrieved suo moto which is secti on 401(1).



When the high court has before it on appeal the record of a criminal proceeding, it may exercise its power of revision under section 401 in respect of a matter in regard to which it could have otherwise exercised its power of revision even where the appeal is incomplete. It should be noted that where in a proceeding on appeal the court proposes to exercise its revisional powers; its intention to that effect should be made clear in its orders. If however high court proceeds in exercise of its power as an appellant court, assuming that the appeal is complete and subsequently it is discovered that appeal was incompetent and that accordingly the order passed by the high court was void, the order cannot be saved by treating it as having been passed by the High Court as a court of revision.



The High Court may also exercise its revisional powers where the defect in the record of a case before an inferior court comes to its knowledge in any other manner.

THE DIFFERENCE BETWEEN THE APPELLANT AND REVISIONAL JURISDICTION OF THE HIGH COURT Though sub section (1) of the section 401 of the criminal procedure code extends all the appellate powers of the High Court to its revisional jurisdiction, it is subject to exceptions specified in the other sub-section as a result of which the following points of distinction should be noted. i.

In appeal, the High Court can convert an acquittal into a convention and vice versa,  but in revision it cannot convert a finding of acquittal into one of conviction that is in Section 401(3).

ii.

The power of High Court in appeal is not so wide as that in revision. In exercising its revisional jurisdiction the High Court may even cure any irregularity or impropriety Section 397 of Criminal Procedure Code that is not so in appeal. But normally, the High Court would not interfere, in reyision unless there is a glaring defect in the  procedure or a manifest error in law, which has resulted in flagrant miscarriage of  justice.

iii.

In disposing of a criminal appeal against conviction, the court will interfere, unless it is satisfied as to the guilt of the accused, while in revision the High Court will not 11 | P a g e

interfere unless the conscience of the court is aroused to such an extent as to compel it to expressly say that the applicant ought not to have been convicted on the evidenced. iv.

The High Court cannot dismiss an appeal without affording the appellant or his  pleader a reasonable opportunity of being heard. But in revision the High Court is not  bound to hear the applicant or his pleader save while enhancing any sentence, in which case the accused shall be heard as of right, this is in section 401(2) or criminal  procedure code.

v.

There is no provision for abatement of revision proceeding as for appeal.

SECTION 401 AND ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA In an appropriate case, it may be permissible for High Court to protect a person from illegal  prosecution, by granting an appropriate write such as writ of mandamus. Section 401 of Cr.P.C and Article 227 grants the extraordinary constitutional power to the High Court under Article 227 which cannot be taken away by anything in section 397, 401 of the Cr.P.C. Of course the High Court can interfere under Article 227 only if the conditions necessary for application of that provision exist such as where the order in question is without  jurisdiction or founded on no evidence. But Art. 227 cannot be used to interfere with a matter in the discretion of the inferior Court.

WHO MAY APPLY FOR REVISION There is a consensus of opinion that unless the High Court acts Suo Moto, it can be moved to exercise its power of revision only when an aggrieved party makes an application under section 397(1) to call for the records, such aggrieved party may be the accused himself or the complainant or some other person. When a case has been instituted on police report, a private  party cannot, therefore, make such application and move the High Court to call for the records and to exercise its power under section 401, in revision unless there are exceptional circumstances. But when the records come up before the High Court on appeal against conviction by the accused, the High court entertained a revision petition for enhancement of the sentence filed by a brother of the deceased and enhanced the sentence, after issuing notice upon the accused. The Supreme Court upheld this order as a suo motu exercise of its 12 | P a g e

revisional power, for the purpose of which anybody could draw the attention of the High Court to the illegality or irregularity in the order or sentence. In short, the application of a  person who has no locus standi may be treated as information to induce the High Court to  precede suo motu in a present case. Section 401(4) says that when a party is entitl ed to appeal against an order, it is not entitled to apply in revision without first appealing against such order. Hence, where a state government has failed to appeal against an order or acquittal, it cannot move in revision against that order. Under sub section (4) of section 378, a complainant is entitled to appeal if a. the case has not been instituted on his complaint and  b. if the High Court grants him special leave to file such appeal. Hence, in such a case, the complainant cannot apply for revision without first seeking the special leave to appeal from the High Court. The complainant, in cases other than the above, or even a third party, may apply for revision, provided only there are exceptional grounds such as: Absence of jurisdiction, Miscarriage of Justice.

WHETHER THE HIGH COURT CAN EXERCISE ITS POWER OF REVISION WHERE AN APPEAL IS PENDING AGAINST THE IMPUGNED ORDER BEFORE THE SESSIONS COURT The usual rule of practice is that the High Court would not excise its revisional power under section 401, in a case where the aggrieved party has appealed against the judgment or order  before an inferior court, until that appeal is disposed of. But there may be exceptional cases where the ends of justice required that appeal itself be heard by the High Court and n such a case, it is open to the High Court to call for the records of the appeal under its revisional  power, hear and dismiss the appeal and thereafter enhance the sentence under its revisional  power.

POWERS OF A COURT IN REVISION The revisional powers of a High Court are very wide. Section 397 which is linked with Sec. 401 indicates the circumstance in which such powers can be exercised. Such powers are intended to be used by the High Court to decide all questions as to the correctness, legality or  propriety of any finding, sentence or order, recorded or passed by an inferior criminal court 13 | P a g e

and even as to the regularity of any proceeding of any inferior court. The object of conferring such powers on the High Court is to clothe the highest court in a state with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of  justice arising from erroneous or defective orders. Section 401(1) confers on the High Court all the powers of the appellate court as mentioned in Sections 386, 389 390 and 391. It also empowers the High Court to direct tender of pardon to the accused person as contemplated by S.307. Apart from these powers the court has given additional powers in respect of specific cases falling under S. 106(4), 356(4), 357(4)….etc. Any order passed in any proceedings under the Code, except when it is specifically barred such as an interlocutory order, is revisable by the High Court under S.401. The revisional powers under 397 and 401 are entirely discretionary. There is no vested right of revision in the same sense in which there is vested right of appeal. These sections do not create any right in the litigant, but only conserve the powers of the High Court to see that  justice is done in accordance with the recognized rules of criminal jurisprudence and that subordinate criminal courts do not exceed their jurisdiction, or abuse the powers vested in them by the Code.

WHO CAN INVOKE REVISIONAL JURISDICTION Section 397(1) of the Cr PC does not say on whose motion Court may call for the records of the lower Court, but subsection (3) indicates that an aggrieved party may make an application. So far as High Court is concerned, Section 401(1) expressly authorizes the court to exercise power of revision suo motu apart from the application from a party. The complainant is entitled to move a revision even if state does not. When there was acquittal of the accused that was charged on a police report and the state did not file an appeal against it, the informant, since he had no right of appeal against the order, was held to be competent to apply for a revision. While Courts might have expressed different view on the scope of the bar under Sub-section (4) of Section 401, there can be no dispute that suo motu power of the court is not at all affected by the bar in sub-section (4) of Section 401. Whether where a power is exercised under Section 397 of Cr PC, the High Court could exercise those very powers under Section 482, Cr PC. 14 | P a g e

Inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, inquiry or other proceedings. The matter is however, no longer res integra as the entire controversy has  been set at rest by a decision of the Apex Court in the case of M adhu L im aye vs. State of 8 

Maharashtra , and where Apex Court pointed out that Section 482 of the Cr PC had a

different parameter and was a provision independent of Section 397(2). 9  In the case of Raj K apoor vs. State , Justice Krishna Iyer , while distinguishing the power of

the High Court under Section 397 vis-a-vis Section 482 of Cr PC observed that Section 397 or any of the provisions of Cr PC will not affect the amplitude of the inherent power  preserved in Section 482. 10  The Apex Court in the case of M ohi t vs. State of U P  , observed that any order which

substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Secti on 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a  particular aspect of the trail cannot be said to be interlocutory order so as to be outside the  purview of the revisional jurisdiction of the High Court. The High Court can exercise its powers suo moto or on any petition of any aggrieved party or even on the application of any person. However, there are 2 limitations: 

In a case where any application for revision is made by or on behalf of any person  before the Sessions Judge, no further proceeding by way of petition shall be entertained by the High Court. Suppose a proceeding under Section 145 Cr PC between X and Y terminated before the magistrate in favor of X. The criminal revision of Y before the Sessions Judge was dismissed. A criminal revision before the High Court at the instance of Y shall not be entertained. In the same illustration if Y‟s criminal revision before the Sessions Judge

8

 (1978) 1 SCR, 749  (1980) 1 SCC 43 10  (2013) 7 SCC 789 9

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was allowed, a criminal revision to the High Court against the order of the Sessions Judge at the instance of X is maintainable. 

In a case where under this Code an appeal lies but no appeal is brought, then according to sub-section 4 of S.401, no way of revision shall be entertained at the instance of the party who could have pleaded. This rule is based on sound policy that a person who has not exhausted his remedies by law should not normally be allowed to invoke revisional jurisdiction of the High Court.

A private party has no locus standi in a case instituted on a police report and has right to demand an adjudication on an application in revision. He cannot claim locus standi even if the Public Prosecutor permits him to seek revision. But it cannot be said that a private party has no right to bring to the notice of the Sessions Judge or the High Court any illegality committed by the subordinate court. There may be exceptional circumstances I which, on a revision application filed by a private party, revisional jurisdiction may appropriately be exercised. However, while dealing with such a revision application it would not be irrelevant to bear in mind the fact that court's jurisdiction has been invoked by a private party and that the criminal law is not to be used as an instrument wreaking private vengeance by an aggrieved party against the person who according to that party has caused i njury to it. Keeping this fact in view if the court finds that there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been flagrant miscarriage of justice, revisional jurisdiction should be exercised. In a case, while the appeal was pending in the Sessions Court a revision application was filed in the HC by the complainant ho also prayed for transferring the appeal from the Sessions to the High Court to  be heard along with the revisions. The court rejected the prayer for the transfer and ruled that the criminal revision case should remain pending until the disposal of the appeal by the Sessions Court to enable the complainant to pursue the same after the appeals are disposed of  by the Sessions Court. 11 In the case of Kaptan Singh vs. State of M adhya Pradesh   The revisional jurisdiction when

involved by a private complainant against an order of acquittal ought not to be exercised lightly and that it could be exercised only in exceptional case where the interest of public  justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. 11

 ((1997) 4 supreme 211).

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HOW THE POWERS ARE EXERCISED The exercise of jurisdiction under S.401 is discretionary and such powers are to be used only in exceptional cases where there is a glaring defect in the procedure or there is manifest on  point of law and consequently there has been a flagrant miscarriage of justice. The exercise of revisional power is justified only to set right grave injustice not merely to rectify every error however inconsequential. Merely because the lower court has taken a wrong view of law or misapprehended the evidence on the record cannot by itself justify the interference or revision unless it has also resulted in grave injustice? It is no doubt not possible nor  practicable to lay down any rigid test of uniform application and the matter has to be left to the sound judicial discretion of the HC in each case to determine if it should exercise it extraordinary power of revision to set right injustice. Ordinarily the HC court will not interfere; but in a case where there has been gross injustice, or where evidence has been overlooked or not considered in its true perspective, the HC must interfere. While exercising the power of revision, the HC has to work I conformity with two statutory limitations: 

The powers of revision shall not be exercised in any interlocutory order;



The court having exercised such power shall not have the power to convert a finding of acquittal into one of conviction.

Section 401(1) provides that in the exercise or revisional jurisdiction the HC may exercise any of the powers of the court of appeal. As the court of appeal is entitled under 386(a) to reverse an order of acquittal or to direct a retrial, the HC in the exercise of its revisional  powers would also be entitled to record a conviction by reversing the order of the acquittal. But 401(3) prohibit the High Court from converting a finding of acquittal into one of conviction. This places limitations on the power of the HC to set aside a finding of acquittal in the revision, particularly when the state had not thought fit to appeal to the HC against the finding of the acquittal and where the HC is exercising the revisional jurisdiction at the instance of private parties. In a number of decisions, the Supreme Court has held that the revisional power of the HC to set aside the order of the acquittal at the instance of private  parties should be exercised only in exceptional circumstances where there is some glaring defect in the procedure or there is a manifest error on the point of law.

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It would follow from the above that where an acquittal is based on the compounding an offence and the compounding is invalid under the law, the acquittal would be liable to be set aside by the HC in the exercise of such jurisdiction. In a case, the acquittal recorded by the Sessions Court was reversed and the accused was convicted by the HC, acting on the letter from a prosecution witness, by treating it is a criminal revision petition. The SC disapproved of the HC's action in t he following words:  No doubt the HC in exercise of its revisional powers can set aside an order of acquittal if it comes within the ambit of exceptional circumstance enumerated above, but it cannot convert an order acquittal into an order of conviction. The only course left is to order for a retrial.

CASE LAWS In this chapter researcher would like to discuss some of the case laws which deals with the Section 401 of the Criminal Procedure Code. Connected herewith is the question about the options open to the High Court in case a  judgment of acquittal, when examined within the parameters laid down by D.Stephens vs. , is found to call for interference. The High Court cannot convert the acquittal into Nosibolla  conviction. The earlier Code of 1898 also gave similar powers to the High Court by Section 439. The earlier Code and the present one by Sections 439(4) and 401(3) respectively have imposed a restriction by enacting that the revisional jurisdiction cannot be exercised to convert an acquittal into conviction: In the case of Bansi L al and Othr es v. Laxman Singh    : - The five appellants were tried by the Court of Additional Sessions Judge, Delhi on a charge of murder under Section 302 read with Section 34 of the Indian Penal Code. After a very detailed consideration of the evidence adduced in the case, the learned Additional Sessions Judge acquitted the appellants giving them the benefit of doubt. The respondent herein, who is a son of the deceased victim of the murder preferred a criminal revision petition before the High Court of Delhi under Section 397/401, Cr.P.C. challenging the order of acquittal passed by the learned Additional Sessions Judge. A learned Single Judge of the High Court allowed that revision petition, set aside the acquittal of the appellants and remitted the case to the trial Court for retrial.

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Aggrieved by the said judgment of the High Court the appellants have come up to this Court with this appeal and the main contention raised by them is that the learned Single Judge of the High Court has transgressed the bounds of his revisional jurisdiction in re-appreciating the evidence and setting aside their acquittal. In the case of Jaspreet Sin gh v. A.P Singh :- This revision petition under Sections 397/401, Cr.P.C. is directed against the judgment of learned Additional Sessions Judge, New Delhi, dated 18.2.2005, sitting as a Court of appeal, thereby dismissing the appeal filed by the  petitioner herein against his conviction of sentence. The petitioner herein was prosecuted by the DRI for the offence punishable under Sections 132/135(1) (a) of the Customs Act (for short the Act) and after trial was convicted for the said offences and sentenced to 6 months rigorous imprisonment and fine of Rs. 1000/- for the offence punishable under Section 132 of the Act or in default of payment of fine to undergo one and a half month's simple imprisonment. The petitioner was further sentenced to 3 years rigorous imprisonment and a fine of Rs.1000/- or in default of payment of fine to further undergo simple imprisonment of one and a half months. Aggrieved by his conviction and sentence the appellant preferred an appeal but without success, the learned appellate Court upholding the conviction as well as the sentence. Even the plea for reduction/modification of sentence did not find favour with the appellate Court. Though in the body of the revision petition, the petitioner sought to assail both conviction and sentence as illegal and unwarranted, but during the course of hearing of the petition, Mr. Mehta learned Counsel for the petitioner stated at the Bar that he did not wish to press the grounds on which conviction of the petitioner has been challenged. Accordingly, he confined his submissions only so far as it relates to the quantum of sentence as awarded to the  petitioner by the learned trial Court and upheld by the appellate Court. In the case of L alsai Kh unte v. Nir mal Sin ha and Or s    the Supreme Court of India has observed that: - The convict had earned a remission and the period of imprisonment reduced  by the period of remission would have had the effect of removing disqualification as the  period of actual imprisonment would have been reduced to a period of less than two years. The Constitution Bench held that the remission of sentence under Section 401 of the Criminal Procedure Code (old) and his release from jail before two years of actual imprisonment would not reduce the sentence to one of a period of less than two years and save him from incurring the disqualification. 19 | P a g e

An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and free the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The Page 1084 power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. 12

In the case of Dh aram Pal v. Ram shr ee  , the court held that the second application is not applicable under section 482. Also in case of In the case of State of M aharashtr a v. Jagmohan Sin gh Ku ldi p Sin gh Anan d and Ors  . The Supreme Court observed that the Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Session Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "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 regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate  powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

12

 1995

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INTRODUCTION TO THE REFERENCE SCOPE AND APPLICATION

In Sub section 1 provides for references to the high court by any court when it is satisfied that a pending case involves a substantial question as to the validity of any act, ordinance or regulation. The determination of which is necessary for the disposal of the case under article 228 of the Indian constitution if there is any substantial questions as to the interpretation of the constitution, the high court may transfer the case to itself for the determination of the question. The scope of article 228 compared with that of section 395 13 Condition for a reference 1. The court is to be satisfied that the question of the validity of an act or ordinance or regulation or provisions contained therein is raised in a case pending before it. 2. The court is to be satisfied that the determination of the point is necessary for the disposal of the case 3. The court must be of the view that such act/ordinance and is valid or inoperative but has not been so declared by a superior court. 14 Without giving thought to the last aspects and without forming a view as to the invalidity or inoperative character of the provision. The court cannot proves to state a case and make reference under 395 of the crpc 15. When considering the question of validity of any provision, the court should not itself make the decision and to follow it of any other high court to which it was not subordinate by disregarding the provisions of section 395 16. Subsection 2 confers only on Court of Session or metropolitan magistrate an additional power to refer to the high court for its opinion a difficult or important question of law or on which there is reasonable doubt arising in the hearing of the case.

13

 State of bihar v. a. f. a. Hamid; AIR 1954  State v. Keshav Chandra Naskar, AIR 1962; 15  N. Surya Narayana v. Forest Range Officer, AIR 1968. 16 IBID 14

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17 In case of State of A ssam v. Amir r uddin  , the magistrate cannot refer to the high court the

question whether acquittal obtained by fraud shouldn‟t be set aside. No question of validity of act is involved. SECTION 395 OF THE CRIMINAL PROCEDURE CODE: REFERENCE TO HIGH COURT

Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative,  but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the decision of the High Court. Explanation – In this section, “Regulation” means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State. A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending  before it or him to which the provisions of Sub-Section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case. Any Court making a reference to the High Court under Sub-Section (1) or Sub-Section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon. In one of the case the accused sought reference of matter to High Court under S.395 18  Cri.P.C.in the matter of Shi r i sh Suresh Well in g Vs. Sangeeta Avin ash M arath e & Others ,

the Bombay High Court ruled: "The main purpose of section 395 is to obviate any difficulties which has arisen at the time of trial or hearing of a case before the Magistrate or District court with regard to the constitutional validity of a provision and entire disposal of the case is dependent upon the determination of such constitutional validity then only the Magistrate can refer the matter to the High Court. Moreover in such cases the Magistrate himself must arrive at a subjective

17

 1986  (2001 (1) LJSOFT 5)

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 satisfaction that a particular case involves the testing of the vires of any Act or regulation, and then only he can refer the matter. When he is satisfied that it is invalid, he must refer the matter to the High Court. This power of the Magistrate cannot be invoked by an application by the accused. The section itself indicates that a case pending before him involves the question and the determination of the question is necessary for disposal of the case, if it is of the opinion that such Act is invalid or inoperative. First of all the Magistrate must satisfy himself that such a question has arisen in the case. Therefore it is a matter not by merely raising that question by party to the proceeding. If the learned counsel's argument is accepted we are driven to a rediculous position that any accused can make an application before that Magistrate alleging that particular Act under which he is prosecuted is invalid and scuttle the trial. That is not the intent and purport of the section. The intention of the legislature is to obviate the difficulty of the Magistrate or District court in deciding the case before them. If the Magistrate feels or satisfied himself that the Act is invalid, he can invoke  sec. 395 but it cannot be so readily invoked by merely demonstrating that the particular  section is invalid."  19 In the case of Dhar ambir Khattar vs Uni on of I ndia & Another  , the application for

reference to the High Court under Section 395, CrPC ought to have been allowed. It is furthermore the case of the petitioner that the case pending before the said Special Judge involves a substantial question of law as to the interpretation of the Constitution and the determination of which is necessary for the disposal of the case and, therefore, this court ought to exercise the powers conferred upon it under Article 228 of the Constitution of India  by withdrawing that case from the Special Judge and thereafter either dispose the case itself or determine the question of law and return the case to the Special Judge for disposal in conformity with the decision of this court. A reference was made to the decision of the Supreme Court in the case of H ukam Chand 20 

Shyam L al v. Uni on of I ndia  as also to the Supreme Court decision in People's Uni on of 21 

Civil L iberti es (PUCL) v. Union of I ndia.

22  The Supreme Court in State v. Navj ot Sandh u  , that this is not a case for exercise of power

under Article 227 of the Constitution and the same cannot be used as a disguise for an appeal 19

 on 21 November, 2012  (1976) 2 SCC 128 21  1971 (1) SCC 301. 22  2003 (6) SCC 461 20

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which is not provided by the statute. Secondly, assuming that we agree with the request of the  petitioner and quash the impugned order dated 02.11.2007, where does it take the petitioner. The fact remains that by quashing the order dated 02.11.2007, a reference to this court does not automatically ensue. All that it means is the order rejecting the reference is set aside. 23 In the case of Sessi ons Judge vs State  decline to answer the reference and questions raised

 by the learned Judge and referred to this Court as, Reference itself is wholly untenable and unwarranted. With this, present Reference is disposed of. 24 In the case of I n Re: M . Raja Ram Reddy  , references should be made only when the court

is satisfied that a case pending involves a real and substantial question as to the validity of the act or regulation. A mere plea that an act is ultra-virus is not sufficient. 25 In case of Br ajesh B ahudur Sin gh v. State of Jh arkh and  , the subordinate cannot make a

reference to high court unless question refer to arise in a particular case is pending before it. 26 In the case of I n Re A. S. Kri shna  , the court will not answer the hypothetical question of 27 law. Also in case of People for Ani mal, H aryana v. State of H aryana  , court making a

reference to the high court, even if takes objection to jurisdiction may release while forwarding a reference or thereafter can either commit the accused to jail or release him on 28  bail. In the case of P.P v. Dr . B. Kr ishna Sami  , in an appeal against the judgement founded

on the decision given on reference under section 395. It is not open to single judge to review the decision. 29 In the case of State Of Or issa Vs. H ari Beher a  , the court has discussed the

Constitutionality Validity of section 395.According to Section 395(1) of the Code of Criminal Procedure, where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is

23

 on 25 March, 2013  1952 25  AIR 2005 26  1954 27  2006 28  1957 29  LAWS(ORI)-1993-11-4, Decided on November 04,1993 24

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subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the decision of the High Court. Article 228 of the Constitution also provides that if the High Court is satisfied that a case  pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may: 1. Either dispose of the case itself; or 2. Determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment. While making a reference to the High Court the subordinate Court shall state a case setting out its opinion and the reasons therefore. But, the subordinate Court cannot make a reference on the ground that a different view of law was taken by some other High Court. It must follow the law laid down by the High Court to which that Court is subordinate. REFERENCE ON OTHER QUESTION

According to Section 395(2) of the Code of Criminal Procedure, a Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case j ending before it or him to which the provisions of Section 395(1) of the Code do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case. The reference under Section 395(2) of the Code can be made only on a question of law and not on a question of fact. The question referred to must have arisen in the hearing of the case  but not a hypothetical question of law. PROCEDURE WHEN REFERENCE IS IN PENDING

As per Section 395(3) of the Code of Criminal Procedure, any Court making a reference to the High Court under Section 395 may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.

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BIBLIOGRAPHY

1. K.N. Candrasekharan Pillai (rev.), R.V. Kelkar, Lectures on Criminal Procedure, 4th ed. 2006, Eastern Book Company, Lucknow. 2. P. Sarkar and P.M. Bakshi (rev.), S.C. Sarkar, The Law of Criminal Procedure, 7th ed. 1996, rep. 2001, India Law House, New Delhi. 3. Y.V.Chandrachud (rev.), Ratanlal and Dhirajlal, The Code of Criminal Procedure, 16th ed. 2002, rep. 2003, Wadhwa & Co. Nagpur, New Delhi. 4. M. R. Mallick, B. B. Mitra on the Code of Criminal Procedure, 1973, Kamal Law House, Calcutta, 1987. 5. Matthew lippman , Contemporary criminal Law; Concepts, cases, and controversies, SAGE Publications, United States Of America, 1st and 2nd Edition, 2007 and 2010 6. P. Ramanatha Aiyar, Code of Criminal Procedure, Modern Publishers (India), Lucknow, 1999. 7. http://www.pucl.org/Topics/Law/2003 8. www.indiankaknoon.com 9. www.legalservicesindia.com 10. www.vakilno1.com 11. www.manupatra.com 12. www.lawcommissionofindia.nic.in 13. www.scconline.com

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