VARGHESE Vs. DEVASIA

JUDGEMENT

(1.) This is a petition filed under S.482 of the Code of Criminal Procedure to quash the order of the Sessions Judge, Alleppey dismissing Crl. R. P. No. 102 of 1976

(2.) It appears, in M. C. No. 27 of 1969, the Executive First Class Magistrate, Alleppey, passed an order under S.145 of the Code. The legality and propriety of this order was challenged by No. 1 of the A Party before the Sessions Judge, Alleppey in Crl. R. P No. 102 of 1976. It also appears that on the date on which the Crl. R. P. came up for bearing, the revision petitioner and his advocate were absent, and the court dismissed the petition in limine. This order is now challenged.

(3.) The Sessions Judge has power of revision by virtue of S.397 to 399 of the Code of Criminal Procedure, 1973 (for short the 'Code'). The Sessions Judge is empowered to call for and examine the record of any proceeding before any inferior criminal court within his jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, or the irregularity of any proceeding of such inferior court. On examination of such record, the Sessions Judge may exercise his powers of revision consistent with the provisions of S.398 and 399 of the Code. These provisions will show that the power of revision is a power to call for and examine the record of the proceedings of an inferior court. Once the Sessions Judge decides to call for the record of any such proceeding for the purpose of examining the same with a view to satisfy himself regarding its correctness, legality or propriety or irregularity he has the further duty to examine the record. He can examine the record for this purpose without insisting on the presence of a party, the counsel or the prosecutor. In fact, S.403 of the Code makes it clear that except as expressly provided by the Code, no party has a right to be heard either personally or by a Pleader before a court of revision. One of the exceptions is contemplated by the proviso to S.398 of the Code which states that any direction for enquiry into the case of a person discharged shall not be made unless he has the opportunity of showing cause. Of course, as a matter of course courts of revision hear parties or their counsel. This does not mean that absence of party or counsel will enable the court to dismiss the revision for default or in limine. Whether party or counsel is present or not and whether he addresses arguments or not, court has the duty to examine the record. That duty cannot be abdicated on the ground that the party or counsel is absent. In fact, in the light of S.403 of the Code, one can even say that except in exceptional cases, hearing a party or counsel is only a facility which a court extends to him. Even where a party or counsel fails to appear before court, the court has a duty to examine the record and perform its functions as contemplated by the provisions of the Code. There cannot be a dismissal for default of a criminal revision petition.