B.S.YADAV, J. - (1.) THE brief facts, leading to this petition are that the present petitioners were prosecuted under section 500 of the Indian Penal Code on a Criminal complaint filed by the present respondent Savitri Devi. The learned Judicial Magistrate I Class, Karnal who tried the case, found the petitioners guilty and convicted them for the above offence but released them under section 3 of the Probation of Offenders Act, 1958 (No. 20 of 1958) after admonishing them.
(2.) SAVITRI Devi filed revision in the Court of the learned Sessions Judge, Karnal who treated it as an appeal and ordered each of the petitioners to pay Rs. 500/- as compensation to Savitri Devi for the loss or injury caused to her reputation. He also ordered the petitioners to pay Rs. 100/- each as costs of the proceedings to her. Feeling aggrieved, the petitioners have filed the present revision petition. The learned counsel for the petitioners argued that the learned Sessions Judge was not competent to treat the revision filed before him, as an appeal. In support of his arguments, he has cited The State v. Raghbir Singh, 1971 PLR 771. In that case, the accused, after conviction had been accorded the benefit of sections 3 and 4 of the Probation of Offenders Act by the trial Court. The State did not file any appeal, though section 11(2) of the said Act gave a right of appeal. State filed a revision petition in the Sessions Court for the enhancement of the sentence of the accused. The learned Sessions Judge recommended the case to this Court for enhancement of sentence. While disposing of the revision petition, it was remarked :- "It is undisputed that the revisional jurisdictional under section 439, Criminal Procedure Code, is discretionary. The petitioning State which had a statutory right and remedy by way of the appeal had not exercised the same. On general principles and also on the specific provisions of section 439(5), a party who has a right of appeal cannot be allowed to have resort to revision proceedings. I am hence disinclined to interfere at the instance of the State in the present case and would consequently decline the reference." It is to be noted that the above observations were made in relation to section 439(5) of the Code of Criminal Procedure, 1898 (Act 5 of 1898). That sub-section read as follows; "439(5). Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who would have appealed." However, the corresponding provision of the new Code of Criminal Procedure, 1976 has been incorporated in section 401 and the provisions relevant to this judgment are sub-sections (4) and (5) which read as follows :- "401. (4) Where under this Code, an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereof and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." In the (old) Code, there was no provision like sub-section (5) of section 401. Therefore, under the (new) Code, if a revision has been filed erroneous belief that no appeal lies thereto, such revision can be treated an appeal if it is considered necessary in the interests of justice to do so. It was not disputed by the learned counsel for the petitioner that though in sub-section (5), the words "High Court" have been used' but in view of section 399, that power can be exercised by the Sessions Court also.
(3.) IN the present case, it was urged on behalf of complainant before the Sessions Judge that the revision petition had been filed under the erroneous belief that no appeal lay against the impugned order of the learned trial Court and therefore, the revision should be treated as an appeal in view of section 401(5) of the (new) Code. In the interests of justice, the learned Sessions Judge treated the revision petition as an appeal. The learned counsel for the petitioner could not point out any defect in the exercise of the jurisdiction by the learned Sessions Judge.;