S NARAYANAN Vs. KANNAMMA BHARGAVI

JUDGEMENT

(1.) The question referred for the decision of the Full Bench is whether a party invoking the revisional jurisdiction vested under S.435, Code of Criminal Procedure can straightaway move the High Court or that he should first move the Sessions Judge or the District Magistrate and then only the High Court. The aggrieved party comes to this court normally under S.439 read with S.435 of the Code. S.435 reads:

(2.) Having conceded the right of a party to approach this court direct under S 435, we do not think it proper to fetter the right by insisting on exceptional or extraordinary grounds being made out for entertaining the petition. What could be 'exceptional or extraordinary grounds', is not clear from the judgment of the learned Chief Justice. Could a party be permitted to plead that the High Court is nearer to him than the Sessions Court or that according to him better legal aid is available in the High Court centre, to justify his coming direct to the High Court We do not think that in entertaining the petition any such grounds could be considered proper or sufficient. The plea that the Sessions Judge or the District Magistrate has no inherent power to make orders of stay and therefore the party would be justified in approaching this Court direct, is also not correct. The section itself confers on the Sessions Judge and the District Magistrate the power to suspend execution of the sentence or order and also to release the accused on bail. But the, Sub Divisional Magistrate does not possess such a power even though he also is possessed of revisional jurisdiction under S.435. In his case the records will have to be forwarded to the District Magistrate for passing such interim orders. This power of passing interim orders of suspension could be exercised even when a recommendation under S.438 is made. It is, therefore, difficult for a party to find exception or extraordinary grounds to justify his action in approaching this Court direct. The result would be that without first approaching the lower court, it would be impossible for an aggrieved party to approach this court because of the insurmountability of the condition imposed. The Gujarat and Patna High Courts have expressed themselves in favour of a party approaching the High Court without first approaching the Sessions Judge or the District Magistrate. A single Bench of the Gujarat High Court in Suraj Mohan v. State (AIR 1967 Gujarat 126) has observed:

(3.) We cannot shut our eyes to the glaring fact that the Sessions Judge or the District Magistrate is incompetent to render adequate relief to an aggrieved party invoking the revisional jurisdiction vested in them under S.435. If the Court is satisfied that the revision is frivolous, the petition will be dismissed; but on the other hand if it is satisfied that the order of the Subordinate Magistrate has to be vacated, a report to that effect will have to be forwarded to this Court under S.438. In either case, the party will have to appear in this court and present his case again. It is true that if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. But, as a general rule the accused is also served with notice on the reference, and he appears either personally or through pleader. In all cases where the Sessions Judge or the District Magistrate refuses to make a reference, the petitioner' has a right to approach this court. The effect is that an aggrieved party is put to the trouble of presenting his case in two courts, one after the other. The view, that if this practice is followed, the work of the High Court would be minimised, does not appear to us to be convincing. The High Court, in any event, will have to be approached by the aggrieved party at the final stage and it is unreasonable to think that the High Court would cease to be flooded with petitions of this kind if the restriction is tightened. Effective orders can be passed by the Sessions Judge and the District Magistrate, only in dismissal of complaints under S.203 and 204(3) and in orders of discharge. In all other instances the District Magistrate or the Sessions Judge sitting in revision, can only make a reference as contemplated in S.438 if satisfied that the order under revision is wrong and calls for interference. We would also like to point out that it is not correct to say that the jurisdiction vested in the Sessions Judge and the District Magistrate on the one hand, and the High Court on the other, is "concurrent" in the strict sense of the term. The expression "concurrent" connotes "joint and equal in authority". In other words, the two agencies or units should possess coequal powers; but in the present instance the power is not coequal as we have already seen.