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.
Disclaimer : All the contents are for general use and information. Consult your lawyer before acting.
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.
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.
Disclaimer : All the contents are for general use and information. Consult your lawyer before acting.