STATE OF GUJARAT Vs. SWAMI AMAR JYOTI SHYAM
HIGH COURT OF GUJARAT
STATE OF GUJARAT
SWAMI AMAR JYOTI SHYAM
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(1.)The State is aggrieved by the orders of both the lower Courts refusing remand of the opponent to Police custody. Hence this petition is invoking Art. 227 of the Constitution and sec. 482 of the Code of Criminal Procedure 1973
(2.)The learned Counsel for the respondent has raised a preliminary objection that virtually this is a second revision application which is expressly barred under Sec. 397(3) of the Code because the learned Metropolitan Magistrate had passed an order refusing remand to Police custody and that order was challenged by the State by filing a revision application to the City Sessions Court at Ahmedabad and therefore no further application by the same person (State) can be entertained and is not maintainable. The learned Counsel for the State submitted that what is barred is a second revision application under sec. 397 of the Code and a petition under Art. 227 of the Constitution invoking Consti- tutional power of the High Court is not barred. Moreover Sec. 482 of the Code provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to secure the ends of justice.
(3.)The learned Counsel for the respondent relied on the judgment in the case of Jagir Singh v. Ranbir Singh & Anr. AIR 1979 SC 381 wherein it is held that object of Sec. 397(3) of the Code is to prevent a multiple exercise of revisional powers and to secure early finality to orders and any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. It was also held that the language of Sec. 397(3) is clear and paremptory and it does not admit of any other interpretation. It was further held that when the Sessions Judge refused to interfere with the order of the Magistrate the High Courts jurisdiction is invoked to avoid the order of the Magistrate and not that of the Sessions Judge. It was therefore held that the bar of Sec. 397(3) could not be circumvented by a subte- rfuge of treating the revision application as directed against the Sessions Judges order and it was held that it was not permissible to do so what may not be done directly cannot be allowed to be done indirectly that would be an evasion of the statute. With regard to Art. 227 of the Constitution the Supreme Court observed that the High Court order could not be sustained under Art. 227 of the Constitution both because the High Court had not purported to exercise that power and also because the power of judicial superintendence under Art. 227 could only be exercised sparingly to keep subordinate Courts and Tribunals within the bound of their authority and not to correct mere errors. The Supreme Court observed that where the Criminal Procedure Code itself banned the exercise of revisional powers by the High Court it would indeed require very exceptional circumstances to warrant interference under Art. 227 of the Constitution since the power of superintendence was not meant to circumvent statutory law. Thus it is clear that even though the petition under Art. 227 of the Constitution would be maintainable the scope would be confined and restricted to the scope of that Article of power of judicial superintendence to keep subordinate Courts and Tribunals the bounds of their authority and not correct mere errors and it would require very exceptional circumstances to warrant interference under Art. 227 of the Constitution as observed by the Supreme Court.
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