PRITHI Vs. STATE

JUDGEMENT

(1.) This petition has been filed u/s, 435 & 561A of the Criminal Procdure Code, hereafter called 'the Code'. At the very outset an objection has been raised by Shri Anoop Singh on behalf of respondent No. 2 to the maintainability of the petition. It is urged that the petition is directed against the order made by Shri M.K. Chawla Additional Sessions Judge, Delhi on 18.4.73 and that order having been made on a petition preferred u/s 435 of code the jurisdiction provided by it stood exhausted. The instant petition could not have been preferred under section 435. It is then emphasised that in the presence of section 439 which provides for invoking the revisionary jurisdiction and settlessits scope section 561 A of the Code cannot be resorted to. Continuing the objection it is urged that even if the petition is treated as having been preferred under section 439 of the Code it is barred by time. It is pointed out that when the petition came up for admission on the 20th of April. 1973, the Court took into consideration Crl. Misc. 267/73 which had been filed along with the petition and the order passed was that certified copies be filed within the period permitted by law and since no certified copy of any order had been filed within the period prescribed by Article 131 of the Limitation Act, 1963, hereafter called "the Act" the petition apart from being barred by limitation suffers from the infirmity that there is no competent petition before the Court. Reliance in this behalf is placed on two provisions. The first one is section 3 in the Act. (......) Article 131 in the Act prescribes the period of 90 days as from the date of the decree or order or sentence sought to be revised within which any Court may be moved under the Code of Civil Procedure of the Code of Criminal Procedure for the exercise of its power of revision. The submission is that a competent petition for revision could be taken to have been preferred within the period of limitation in case the petitioner had complied with the imperative requirements of rule 3-A in Chapter 1-A(b) Vol. V of the High Court Rules and Orders which demanded that every petition for revision was to be imperatively accompanied by a copy of the order in respect of which it may have been preferred. Rule 3-A deserves to be reproduced along with rule 3. Both of them, are :- "R. 3. As regards petitions under section 436 and section 439, Criminal Procedure Code, the Deputy Registrar will not receive petitions for revision of orders of original Courts in non-appealable cases, unless the applicant files with his petition a copy of the order of the Sessions Judge, or District Magistrate, as the case may be, to show that he has applied to one or the other and his petition has been refused. The Sessions Judge or District Magistrate can release a prisoner on bail or suspend a sentence pending a reference to the High Court. R. 3-A. Every petition for revision of an order shall be accompanied by a copy of the order in respect of which such application is made. In the case of petition for revision of the order of an appellate Court a copy of the order of the Court of first instance shall also be filed. In the case of a petition for revision of an order of an appellate Court a copy of the order of the Court of first instance has also to be filed.

(2.) The counsel for respondent No. 2 vehemently urges that the copy of the impugned order sought to be revised has of necessity to be a certified copy. He relies upon the observations contained in State of Uttar Pradesh V. Tobit and others, A.I.R. 1958 Supreme Court 414. There the Supreme Court was concerned with interpretation of the word "copy" as occurring in section 419 of the Code. It was held that the copy required to be filed with the petition of appeal must be a certified copy. In this case it is apparent from the record that although alongwith the petition the petitioner had filed Crl. Misc. 267 of 1973 stating that he was attaching uncertified copies of the impugned orders and grounds of revision and that he had applied for preparation of the certified copies he did not at any time after the institution of the petition file the certified copy of any order whatsoever. Mr. Anoop Singh combines in his argument his reliance on section 3 and Article 131 in the Act with Rule 3-A reproduced above. Rule 3 which precedes rule 3-A contains a prohibition. The Deputy Registrar in case of petitions preferred under section 439 of the Code is not to receive them unless the applicant files a copy of the order of the Sessions Judge or the District Magistrate as the case may be to show that he had applied to one or the other and that his petition had been refused. The provision postulates that before invoking section 439 of the Code, the petitioner has necessarily to avail of the remedy provided by section 435 of the Code.

(3.) The question arises whether a petitioner can by-pass sections 435 and 439 of the Code and move the High Court under section 561 A thereof. The Code contains specific provisions which provide precise remedies. Section. 435 allows that the High Court or any Sessions Judge or the District Magistrate or any sub-divisional Magisrate empowered by the State Government in that behalf may call for and examine the record of any proceedings before any inferior criminal court and then act in accordance with the rest of the provision. On examining any record under section 435 of the Code, the Sessions Judge or the District Magistrate may make any of the directions permitted by that provision. Under section 438 of the Code, the Sessions Judge or the District Magistrate if he thinks fit may submit a report to the High Court for its. orders. Section 439 in sub-section (1) deals with the powers of the High Court to revise the orders passed by the Courts of inferior jurisdiction. Sub-sections 2 to 6 regulate the exercise of that jurisdiction. The object which the legislature achieved by enacting section 439 in detail was to settle precisely the revisionary power of the High Court and its scope. The provision, is:- (...) S. 561A. is : (-) Section 561 A declares that nothing in the Code would be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order which may have already been made under the Code. The High Court can also pass orders to prevent abuse of the process of any Court. It may pass orders otherwise to secure the ends of justice. The Courts possess various kinds of jurisdiction. The Code gives jurisdiction in section 190 to take cogizance of cases. There is the jurisdiction to try the cases. There is the appellate jurisdiction. The Code then contains provisions which deal with revisionary jurisdiction which may be exercised by the various Courts. The extent to which the Sessions Judge or the District Magistrate or any Sub-divisional Magistrate empowered by the State Government in that behalf may exercise the revisionary jurisdiction is limited. The High Court can exercise the revisionary jurisdiction by exercising any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338 of the Code. While allowing the exercise of that jurisdiction the High Court has been empowered to exercise the power of a Court of appeal. The power which the appellate Court may exercise are enumerated in section 424 of the Code. These powers are exercised when a proper petition of appeal in accordance with section 419 is preferred. Section 561-A which is being invoked alongwith section 439 does not provide for the exercise of revisionary jurisdiction. The High Court exercises the jurisdiction under that provision which is inherent in its own constitution. Section 551-A merely declares that no provision in the Code will be deemed to be limiting or affecting the inherent power of the High Court to make any order for the three purposes mentioned therein. Where it becomes necessary to pass an order to give effect to an order already passed under the Code the High Court may pass such an order. Such an order would not be an order passed in exercise of "revisionary jurisdiction". The order to prevent abuse of process of any Court will also be an order passed directly in exercise of inherent jurisdiction. It would not be an order passed in exercise of the revisionary jurisdiction. An order passed otherwise to secure the ends of justice would also be an order passed by the High Court in the given circumstances of a case where either on being moved for it or of its own volition, it considers it necessary to pass such an order. The exercise of the inherent power postulates that it must be exercised with judicial caution. The wide power which the High Court has to pass such orders as may be necessary to secure the ends of justice contains the concept that the orders will be occasioned where prevention of injustice may call for it. The power is to be exercised to do justice. That would mean that the order will not suffer from any taint of arbitrariness and will not infringe any law or any principle of natural justice. The power declared by section 561-A is neither the appellate nor the revisionary power. Apart from other jurisdictions a Court may exercise reviewery jurisdiction. It may exercise such a jurisdiction as is provided by Article 227 of the Constitution of India which is supervisory in its nature. Where an order can be interfered with in exercise of the revisionary jurisdiction and where such a rule as rule 3 reproduced above has been made to regulate it, the aggrieved party has first to approach the Sessions Judge or the District Magistrate and can then take recourse to section 439 of the Code. As required by rule 3-A all patitions which may be filed for the revision of an order have to be accompanied by a copy thereof.