- (1.) BY means of this petition preferred under Articles 226, 227 of the Constitution of India and under section 482 Cr.P.C. the petitioner seeks to impugn the order dated 7th August 1995 passed by the Additional Sessions Judge for Greater Bombay at Bombay, in Criminal Revision Application Nos. 208/95, 209/95, 213/95 and 214/95 dismissing the revision applications filed by the petitioners, challenging the order dated 29.6.1995 passed by the Additional Chief Judicial Magistrate, 37th Court, Bombay releasing certain property in favour of the respondents Nos. 1 to 9 on their executing a bond.
(2.) I have perused the impugned order. The impugned order was arrived at by the Additional Sessions Judge on the consideration that as the order challenged before it was an interlocutory order the same was not revisable. Section 397 of the Criminal Procedure Code reads thus: "397. (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 (1) 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." A perusal of this section amongst others, would show, two things: (a) If a revision application has been made by any person before the Sessions Judge no further application can be made by the same person before the High Court. (b) The revisional powers shall not be exercised in relation to any inter locutory order.
(3.) IT is well settled that what cannot be done directly would not be permitted by law to be done indirectly. The petitioner having filed a revision before the Additional Sessions Judge cannot circumvent the bar of filing a second revision application by approaching this court under Articles 226 and 227 of the Constitution of India and section 482 of the Cr.P.C. The Apex Court in the decision reported in AIR 1979 S.C. 381 (Jagir Singh vs. Ranbir Singh and anr.) has held that the bar of a second revision cannot be circumvented by approaching the High Court in exercise of its writ jurisdiction. This obviously means that the present petition is not maintainable under Articles 226 and 227 of the Constitution of India. In the decisions reported in JT 1987 (4) S.C. page 637 (Rajan Kumar Machanada vs. State of Karnataka) and AIR 1993 S.C. 1361 the Apex Court has clearly held that a party which is perduded from prefering a second revision under section 397 (3) Cr.P.C. cannot get over the bar by approaching the High Court under section 482 Cr.P.C. In both these decisions as an inflexible rule of law the Apex Court has held that on account of the bar engrafted by section 397(3) Cr.P.C. resort cannot be had under section 482 Cr.P.C. In fact in the case reported in AIR 1993 S.C. page 1361 (Dharampal and ors. Vs. Ramshri and ors.), the Apex Court observed that the orders were erroneous in law and inspite of that in paragraph 4 it observed thus: " 4. There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Session Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stay when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under section 482 of the Code and entertained a second Revision Application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr.R.No.180/78 to the Sessions Court against the order passed by the Magistrate on 17th October 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under S.482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside." On account of the ratio laid down in the aforesaid two decisions it would not be open to the petitioners to approach this court under section 482 Cr.P.C.;