U.K.Varma - (1.) THIS revision is directed against the order of Shri N. K. Mehrotra, IVth Additional District and Sessions Judge, Varanasi dated 8-2-85 whereby he had decided both the Criminal Revisions No. 319 of 1984 (Harihar Prasad v. State of U. P. and Jai Krishna Das) and No. 334 of 1984 (Jai Krishna Das v. State of U. P. and Harihar Prasad).
(2.) THE counsel for Jai Krishna Das opposite party has raised this preliminary point that the revision is incompetent as the applicant Harihar Prasad had earlier exhausted his remedy by filing the criminal revision no. 319 of 1984 against the order of Sri B. K. Srivastava, Ilnd Judicial Magistrate, Varanasi dated December 4, 1984 in the court of the Sessions Judge, Varanasi. The sub-clause (3) of section 397 of the Code of Criminal Procedure 1973 which contains a bar to the filing of the second revision, reads as follows :- "Section 397-Calling for records to exercise powers of revision- (1) ......... (2) ....... (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." The section 399 which speaks about finality attaching to the order of the Sessions Judge in the specified situation is as follows :- Section 399 : Sessions Judge's power of revision- (1) ........... (2) ......... "(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 proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other court."
(3.) THE counsel for Harihar Prasad referred lo the decisions in Inayat Ullah Rizvi v. Rahimullah reported in 1981 Cr. Law Journal, at page 1398 and Wajid Mirza v. Mohd. Ali Ahmad reported in 1982 Cr. Law Journal at page 80 to impress that the revision is maintainable as the IVth Additional Sessions Judge had substituted another order in place of the order of the llnd Judicial Magistrate, Varanasi directing release of the Bus no. URH 1113 in favour of Jai Krishna Das which would not have been passed in Criminal Revision no. 319 of 1984 at his instance but in the Criminal Revision no. 334 of 1984 filed by the opposite party. The counsel for Jai Krishna Das submitted that he did not dispute the proposition of law laid down in the above cases of Inayat Ullah Rizvi and Wajid Mirza for they only say that the second revision to the High Court by the defeated party who had not filed the revision in the court of sessions would not be hit by the bar contained in the clause (3) of section 397 of the Code of Criminal Procedure. He, however, vehemently maintained that it could not be ignored that Harihar Prasad applicant had filed the criminal revision no. 319 of 1984 before the Sessions Judge, Varanasi for the vacation of the attachment order and release of the bus aforesaid in his favour. He placed reliance on the Supreme Court decision in Rajan Kumar Manchanda v. State of Karnataka, reported in 1988 Alld. Crl. Cases at page 54 wherein it has been held that a second revision does not lie before the High Court when the first revision by the same party has already been rejected by the Sessions fudge. The Supreme Court made it clear that the bar contained in clause (3) of section 397 could not be bye-passed by seeking relief under section 482, CrPC dealing with the inherent powers of the High Court. The Supreme Court while setting aside the order of the Karnataka High Court had not entered into the merits of the case and had restored the judgment of the Sessions Judge on the sole ground that there was a finality attached to the order of the Sessions Judge when the applicant had already exhausted his right by filing a revision before him. The mere fact that the IVth Additional District and Sessions Judge instead of maintaining the order of Ilnd Judicial Magistrate, Varanasi had directed release of the Bus in favour of Jai Krishna Das could not give any right of revision to the applicant as the same is not stipulated by any provision of the Code of Criminal Procedure in supersession of the bar contained in Clause (3) of section 397 thereof and the order having become final under clause (3) of section 399 CrPC. The result of the above discussion is that the preliminary point raised by the counsel for Jai Krishna Das regarding the non-maintainability of this revision is upheld. ORDER;