S NARAYANAN Vs. KANNAMMA BHARGAVI
LAWS(KER)-1968-6-5
HIGH COURT OF KERALA
Decided on June 26,1968

S.NARAYANAN Appellant
VERSUS
KANNAMMA BHARGAVI Respondents

JUDGEMENT

- (1.) The question referred for the decision of the Full Bench is whether a party invoking the revisional jurisdiction vested under S.435, Code of Criminal Procedure can straightaway move the High Court or that he should first move the Sessions Judge or the District Magistrate and then only the High Court. The aggrieved party comes to this court normally under S.439 read with S.435 of the Code. S.435 reads: "The High Court or any Session Judge or District Magistrate, or any Sub Divisional Magistrate empowered by the State Government in this behalf may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his 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." If after perusal of the record called for under the above section, the Sessions Judge or the District Magistrate is of opinion that the order of the inferior court needs correction or setting aside, he must under S.438, report for the orders of the High Court, the result of such examination and when such report contains a recommendation that a sentence (or an order) be reversed or altered, he may order the execution of the sentence or order be suspended and, if the accused is in confinement, he be released on bail. In the case of the High Court on the other hand, when any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, it is open to it in exercise of any of the powers conferred on a Court of Appeal by S.423, 426, 427 and 428, to impose the sentence. Thus the High Court alone can pass effective orders in correction of the order of the Subordinate Magistrate, and so the question is whether the party aggrieved can straightaway come to this Court by passing the Sessions Judge or the District Magistrate as the case may be. We do not see any legal bar to a party coming direct to this Court without first moving the Sessions Judge or the District Magistrate and the practice, here, all along has been to entertain such petitions in the High Court direct. But in some States "a practice of long standing has grown up under which the High Court does not ordinarily entertain an application in revision unless the District Magistrate or the Sessions Judge has been moved first." A Division Bench of this court in Devaki v. Kitta ( 1967 KLT 31 ) upholding the above practice and laying down and settling the procedure for this court, has held that a party invoking the revisional jurisdiction under S.435 has no right to approach this court direct, without moving in the first instance, the Sessions Judge, who according to the learned Judges has concurrent revisional jurisdiction, with this Court. The aforesaid Division Bench decision now stands in the way of a petition in revision under S.435 being received in this Court direct. The learned Judges of the Division Bench have followed in support of their view a Division Bench ruling of the Andhra Pradesh High Court in Veera Ramayya v. Vdayagiri Venkita Seshayatharam (AIR 1956 And. 97). Chief Justice Subba Rao, on a review of the relevant authorities, observed in that case that the practice followed by all the High Courts except Madras, was, not to entertain revisions directly in the High Court from orders of the Subordinate Magistrate, unless the aggrieved party in the first instance had moved the sessions Judge or the District Magistrate as the case may be. Gopalan Nambiyar, J. speaking for the Bench in Devaki v. Kitta (1967 KLT 31) would observe:- "But what is contended by the counsel for the petitioner is that the Sessions Judge cannot pass an effective order in revision, but must refer the case to the High Court under S.438 of the Code to be dealt with under S.439. Even so, the question arises whether as a matter of salutary practice, and in the interests of the better and efficient administration of justice, the party should must move the inferior court having concurrent revisional jurisdiction, before approaching the High Court." We doubt very much whether the practice is really salutary and conducive to the better and efficient administration of criminal justice. Chief Justice Subba Rao seems to have weighed in the decision cited, the points for and against the alleged practice and has observed that the weight of authority and reasoning is in favour of continuing the practice. The points in favour are:- (a) The time of the High Court will not be wasted with frivolous applications; (b) The High Court will have the advantage of the considered opinion of the Sessions Judge or the District Magistrate as the case may be and in most of the cases its work would be facilitated or minimised in disposing of revisions; (c) The subordinate courts are within the easy reach of the parties and the expenditure to be incurred will be comparatively less than in the High Court; (d) It avoids conflict of jurisdiction; and (e) The Legislature in conferring concurrent jurisdiction may reasonably be assumed to have intended that the inferior court should exercise jurisdiction in the first instance. The points against are:- (1) The subordinate courts have no inherent power to make interim orders of stay and, therefore, an aggrieved party may not get the entire relief he seeks if he approaches the sessions court or the District Magistrate's Court in the first instance; (2) The Sessions Court or the District Magistrate's court will not be in a position to make a final order and a party has to make arrangements for representing him in two courts, i. e., in the sessions court or the District Magistrate's Court as the case may be and also in the High Court; and (3) The order of the High Court would be final whereas if the revision petition was dismissed by the subordinate court, another revision may have to be filed in the High Court. The learned Chief Justice would conclude finally that the prevailing practice namely, to prevent a revision under S.435 being preferred direct to the High Court, "would carry out the intention of the Legislature and would better serve the interests of the public from the administrative and judicial point of view." On a careful survey of the authorities bearing on the point and on considering carefully the points for and against, we are of the view that a party invoking the jurisdiction of this court under S.439 read with S.435 should be permitted to come to this Court direct, without first moving the Sessions Judge or the District Magistrate. The jurisdiction vested in this court under S.439 is very vide, and this court in exercising the jurisdiction so vested, is not expected to enquire whether the party seeking the remedy had moved the Sessions Judge first. Chief Justice Subba Rao himself has made this position clear in the following words:- "We should not be understood to have laid down that the High Court has no jurisdiction to entertain a revision in the first instance. The Criminal Procedure Code in terms expressly confers the jurisdiction. Nor do we say that it is an inflexible rule of law that under no circumstances should the High Court entertain a revision if the aggrieved party did not file a revision in the first instance in the inferior court. Nor do we intend to lay down any rule, which, directly or indirectly affects the undoubted inherent powers of the High Court to pass orders, to prevent grave and substantial injury to the parties. But in our view the salutary practice to be followed in this High Court should be that ordinarily the High Court will not entertain a revision unless the aggrieved party approached an inferior Court in the first instance and will not deviate from that practice, except on special exceptional or extraordinary grounds. When there are no such grounds, the mere fact that revision has been admitted by this Court cannot make any difference in the enforcement of the rule of practice, for the party who with open eyes ignored the practice and filed a revision direct in the High Court, cannot take advantage of his deviation from the rule of practice."
(2.) Having conceded the right of a party to approach this court direct under S 435, we do not think it proper to fetter the right by insisting on exceptional or extraordinary grounds being made out for entertaining the petition. What could be 'exceptional or extraordinary grounds', is not clear from the judgment of the learned Chief Justice. Could a party be permitted to plead that the High Court is nearer to him than the Sessions Court or that according to him better legal aid is available in the High Court centre, to justify his coming direct to the High Court We do not think that in entertaining the petition any such grounds could be considered proper or sufficient. The plea that the Sessions Judge or the District Magistrate has no inherent power to make orders of stay and therefore the party would be justified in approaching this Court direct, is also not correct. The section itself confers on the Sessions Judge and the District Magistrate the power to suspend execution of the sentence or order and also to release the accused on bail. But the, Sub Divisional Magistrate does not possess such a power even though he also is possessed of revisional jurisdiction under S.435. In his case the records will have to be forwarded to the District Magistrate for passing such interim orders. This power of passing interim orders of suspension could be exercised even when a recommendation under S.438 is made. It is, therefore, difficult for a party to find exception or extraordinary grounds to justify his action in approaching this Court direct. The result would be that without first approaching the lower court, it would be impossible for an aggrieved party to approach this court because of the insurmountability of the condition imposed. The Gujarat and Patna High Courts have expressed themselves in favour of a party approaching the High Court without first approaching the Sessions Judge or the District Magistrate. A single Bench of the Gujarat High Court in Suraj Mohan v. State (AIR 1967 Gujarat 126) has observed: "It was then said that the applicant has, not gone to the Sessions Court against an order passed by the learned Magistrate and has come directly to this Court. Ordinarily it is true that the High Court, is reluctant to entertain the petition in revision directed against any order passed by, the Magistrate. But even if he had gone to the Sessions Court, it was not possible for it to pass any adequate orders, and it would have been required to refer the matter to the High Court for having suitable orders in the matter. That would have taken a good lot of time and the purpose behind the claim in the petition would obviously be frustrated. There is no bar under any provision of law, saying that an application in revision cannot lie directly to the High Court and that it must always come through the Sessions Court." To the same effect is the Division Bench ruling of the Patna High Court in Sahdev Mandal v. Honga Muran (AIR 1967 Patna 223).
(3.) We cannot shut our eyes to the glaring fact that the Sessions Judge or the District Magistrate is incompetent to render adequate relief to an aggrieved party invoking the revisional jurisdiction vested in them under S.435. If the Court is satisfied that the revision is frivolous, the petition will be dismissed; but on the other hand if it is satisfied that the order of the Subordinate Magistrate has to be vacated, a report to that effect will have to be forwarded to this Court under S.438. In either case, the party will have to appear in this court and present his case again. It is true that if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. But, as a general rule the accused is also served with notice on the reference, and he appears either personally or through pleader. In all cases where the Sessions Judge or the District Magistrate refuses to make a reference, the petitioner' has a right to approach this court. The effect is that an aggrieved party is put to the trouble of presenting his case in two courts, one after the other. The view, that if this practice is followed, the work of the High Court would be minimised, does not appear to us to be convincing. The High Court, in any event, will have to be approached by the aggrieved party at the final stage and it is unreasonable to think that the High Court would cease to be flooded with petitions of this kind if the restriction is tightened. Effective orders can be passed by the Sessions Judge and the District Magistrate, only in dismissal of complaints under S.203 and 204(3) and in orders of discharge. In all other instances the District Magistrate or the Sessions Judge sitting in revision, can only make a reference as contemplated in S.438 if satisfied that the order under revision is wrong and calls for interference. We would also like to point out that it is not correct to say that the jurisdiction vested in the Sessions Judge and the District Magistrate on the one hand, and the High Court on the other, is "concurrent" in the strict sense of the term. The expression "concurrent" connotes "joint and equal in authority". In other words, the two agencies or units should possess coequal powers; but in the present instance the power is not coequal as we have already seen.;


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