DEVAKI Vs. KITTA

JUDGEMENT

(1.) THIS Revision Petition, arising from the proceedings under Section 488 Crl. P. C. , has been referred to a Division Bench in view of the preliminary objection raised to its maintainability on the ground that the Sessions Judge having concuurrent revisional jurisdiction had not been moved first; and in order to settle the practice to he followed in this Court in such matters. That the Sessions Judge has concurrent revisional jurisdiction under Section 435, Crl. P. C. in respect of the order now under revision before us, cannot be disputed. That this would not preclude the High Court from invoking or exercising its revisional powers, is also beyond dispute. But what is contended by the counsel for the petitioner is that the Sessions Judge cannot pass an effective order in revision, but must refer the case to the High Court under Section 438 of the Code to be dealt with under Section 439. Even so, the question arises whether as a matter of salutary practice, and in the interests of the batter and efficient administration of justice, the party should first move the inferior Court having concurrent revisional Jurisdiction, before approaching the High Court The authorities on the question have been surveyed exhaustively in Veera Ramayya v. U. Venkita Seshavatharam, AIR 1936 Andh 97. We refrain from covering the ground again. Chief Justice Subba Rao, on a survey of the authorities noticed that the practice followed by all the High Courts except Madras, was not to entertain revisions directly in the Devaki and Anr. vs. Kitta (13. 12. 1966 - KERHC) Page 3 of 6 (13. 12. 1966 - KERHC) Page 3 of 6 High Court from orders of the Subordinate Magistrate, unless the aggrieved party in the first instance moved the Sessions Court or the District Magistrate's Court as the case may be, having concurrent revisional jurisdiction. The authorities referred to in the decision, make it clear that the rule of practice was followed even in respect of the orders which were revisable only under Section 435 of the Criminal Procedure Code. Chief Justice Subba Rao summarised his conclusions thus: "17. On a consideration of the aforesaid points, we are of the view that the practice obtaining in all the High Courts, except in Madras, would carry out the intention of the Legislature and would better serve the interests of the public from the administrative and Judicial points of view. 18. We should not be understood to have laid down that the High Court has no jurisdiction to entertain a revision in the first instance. The Criminal Procedure Code in terms expressly confers the jurisdiction. Nor do we say that it is an inflexible rule of law that under no circumstances should the High Court entertain a revision if the aggrieved party did not file a revision in the first instance in the inferior Court. Nor do we intend to lay down any rule, which, directly or indirectly affects the undoubted Inherent powers of the High Court to pan orders, to prevent grave and substantial injury to the parties. But in our view the salutary practice to be followed in the High Court should be that ordinarily the High Court will not entertain a revision unless the aggrieved party approched an inferior Court in the first instance and will not deviate from that practice, except on special exceptional or extraordinary grounds. When there are no such grounds, the mere fact that a revision has been admitted by this Court cannot make any difference in the enforcement of the rule of practice, for the party who with open eyes ignored the practice and filed a revision direct in the High Court, cannot take advantage of his deviation from the rule of practice". It may be noted that the practice was settled in the above terms for the Andhra High Court in respect of an order under Section 145 of the Criminal Procedure Code which was revisable only under Section 435. The principle was reaffirmed by a Full Bench of the Andhra Pradesh High Court in A. Sriramamurthy v. State of Andhra Pradesh, AIR 1959 Andh Pra 377. We are in respectful agreement with the observations of Chief Justice Subba Rao quoted above, and they represent, in our view, the salutary practice to be followed in this High Court as well. The fact that it has not been followed here so far, is no reason why we should not commend and settle the same to be followed hereafter, especially as this case has been referred for settling the practice to be followed in such matters. We see no injustice in following the rule of practice laid down by the Andhra High Court as the same is sufficiently elastic to meet the requirements of any individual case.

(2.) WE note that in this Court itself the principle of the Andhra decision was followed in Das Isaac v. Narayanan, 1958 Ker LT 1110 by Koshy C. J. , and in Mohammed Bashir v. K. C. Itty, 1983 Ker LT 932, by Govinda Menon, T. The concurrent revissional power exeicisable by the Sessions Judge in those cases, were under Section 436 of the Crl. P. C. , but that, to our mind, does not make any difference in laying down a rule of practice for this Court.

(3.) AS we are settling the rule of practice to be followed in such matters by this Court only by our present ruling, we are not precluding the revision petitioner for not having moved the Sessions Judge in the first instance, and have heard the revision on the merits.