Friday, December 27, 2013

Criminal Revision : Sections 397 to 401 of Cr PC.

In  cases where no appeal has been provided by law or in cases where the remedy of appeal has for any reason failed to secure fair justice the criminal procedure code ( in short Cr PC ) provides for another kind of review procedure, viz. revision. Revision lies both in pending and decided cases and it can be filed before a High Court or a Court of Session. Very wide discretionary powers have been conferred on the Sessions Court and the High Court.

The object of the revision is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals.

The purpose of revision is to enable the revision court to satisfy itself 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 the inferior criminal court.

The revisional  jurisdiction is derived from three sources :-
(1) Section 397 to 401 of the Cr PC; 
(2) Article 227 of the Constitution of India; 
(3) The power to issue the writ of certiorari.

Under Section 397(1) of the Cr PC, 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 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.

Under Section 398 Cr PC, the revision Court may make an order for further inquiry. Further inquiry entails supplemental inquiry upon fresh evidence. The power under Section 398, Cr PC is not co-extensive with Section 397, Cr PC but extends far wider as the record can ‘otherwise’ be examined by the revision Court without recourse to Section 397, Cr PC.

Section 399, Cr PC deals with Sessions Judge’s power of revision. Under sub section (1), the Sessions Judge, in the case of any proceeding the record of which has been called for by himself under Section 397(1), may exercise all or any of the powers which are exercisable by the High Court under Section 401(1) of the Code of Criminal Procedure.

Section 401(1) of the Cr PC reads as follows: - In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

The Allahabad High Court in Om Pratap Singh vs. State 1995 Cr LJ 3887 has observed: - the revisional power of this Court under Sections 397 and 401, Cr PC is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by the subordinate Courts. These two Sections do not confer unfettered jurisdiction on this Court for reappraisal of evidence. In fact, the revisional power of this Court is to see that justice is done in accordance with the recognized rules of criminal jurisprudence and the subordinate Courts do not exceed their jurisdiction or abuse their powers vested in them under the Code of Criminal Procedure.

High Court in a revision is empowered to interfere with an order of acquittal and direct fresh trail. While High Court sitting in appeal under Section 386 of the code, can convert finding of acquittal into one conviction, Section 401, subsection (3) debars conversion of acquittal into conviction. High Court, however, would not disturb a finding of fact unless it appears that trail court shut out any evidence, or overlooked any material evidence or admitted inadmissible evidence or where there has been manifest error on a point of fact.

Circumstances in which retrial may be ordered, without being exhaustive are 
(i) where trail court has no jurisdiction to try a case; 
(ii) where trail court has wrongly shut out evidence which prosecution sought to produce; 
(iii) where material evidence has been overlooked; 
(iv) where acquittal is based on a compounding of the offence which is invalid under law; 
(v) where the appellate court has wrongly held evidence admitted by trail court as inadmissible.

In State of Maharashtra vs. Jagmohan Singh Kuldip Singh and Others, 2004 (7) SCC 659, the Supreme Court has held: - ‘in exercise of revisional power High Court cannot undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of trail court and appellate court.'

Where accused was acquitted without considering material evidence with inconsistent and faulty reasoning and probative value of FIR was also ignored, High Court was justified in directing retrial (Ayodhya Dube vs. Ram Sumer Singh, AIR 1981 SC 1415). 
Who can invoke the revisional jurisdiction?

Section 397(1) of the Cr PC does not say on whose motion Court may call for the records of the lower Court, but subsection (3) indicates that an aggrieved party may make an application. So far as High Court is concerned, Section 401(1) expressly authorizes the court to exercise power of revision suo motu apart from the application from a party. The complainant is entitled to move a revision even if state does not. When there was acquittal of the accused that was charged on a police report and the state did not file an appeal against it, the informant, since he had no right of appeal against the order, was held to be competent to apply for a revision.
The revisional jurisdiction when involved by a private complainant against an order of acquittal ought not to be exercised lightly and that it could be exercised only in exceptional case where the interest of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice (Kaptan Singh vs. State of Madhya Pradesh (1997) 4 supreme 211).

However there are two limitations: - 

(1) Section 399(3) of Cr PC provides that in a case where any application for revision is made by or on behalf of any person before the Sessions Judge, no further proceeding by way of revision at the instance of such person shall be entertained by the High Court. 

Suppose a proceeding under Section 145 Cr PC between X and Y terminated before the magistrate in favor of X. The criminal revision of Y before the Sessions Judge was dismissed. A criminal revision before the High Court at the instance of Y shall not be entertained. In the same illustration if Y’s criminal revision before the Sessions Judge was allowed, a criminal revision to the High Court against the order of the Sessions Judge at the instance of X is maintainable.

(2) In a case where under the Code of Criminal Procedure an appeal lies but no appeal is brought, then according to Sub-section (4) of Section 401, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 

While Courts might have expressed different view on the scope of the bar under Sub-section (4) of Section 401, there can be no dispute that suo motu power of the court is not at all affected by the bar in sub-section (4) of Section 401.

Whether where a power is exercised under Section 397 of Cr PC, the High Court could exercise those very powers under Section 482, Cr PC.

Inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, inquiry or other proceedings. The matter is however, no longer res integra as the entire controversy has been set at rest by a decision of the Apex Court in Madhu Limaye vs. State of Maharashtra (1978) 1 SCR, 749, where Apex Court pointed out that Section482 of the Cr PC had a different parameter and was a provision independent of Section 397(2).

In the case of Raj Kapoor vs. State (1980) 1 SCC 43, Justice Krishna Iyer, while distinguishing the power of the High Court under Section 397 vis-a-vis Section 482 of Cr PC observed that Section 397 or any of the provisions of Cr PC will not affect the amplitude of the inherent power preserved in Section 482.

The Apex Court in Mohit vs. State of UP (2013) 7 SCC, 789, observed that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trail cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. 

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