KESAVAN SIVAN PILLAI Vs. SREEDHARAN RAJAMOHAN

JUDGEMENT

(1.) This matter has been placed before a Full Bench to consider the correctness of two Division Bench rulings of this Court in Abraham v. Thankamma ( 1975 KLT 451 ) and Raman Pillai v. Dakshayani ( 1975 KLT 739 ). Both the decisions were by a Division Bench consisting of Khalid and Janaki Amma JJ. Khalid J. who made the order of reference in the first instance noticed the conflict of judicial opinion on the question, expressed his misgiving as to the correctness of the prior rulings and his embarrassment in the matter, and felt that the matter had to be decided by a Full Bench. It was accordingly referred by a Division Bench of two of us to a Full Bench.

(2.) The two Division Bench rulings referred to earlier took the view that the introduction of S.399 in the new Criminal Procedure Code alters the practice settled for this Court in Narayanan v. Kannamma Bhargavi ( 1968 KLT 495 ) (F B.). The Division Bench noticed that the Sessions Judge bad been given power to pass final and effective orders in all cases, unlike the position in the previous Code where, in certain cases, the Sessions Judges could only report the matter for final orders of the High Court. Taken along with the fact that the code contemplated institution of proceedings in the court of the lowest jurisdiction, the Division Bench was of the view that the Sessions Judge bad to be moved first in revisional jurisdiction also. The Division Bench felt that a harmonious construction of S.97 clause (3) with S.399 clause (3) led to the conclusion that the legislative intent was. as far as possible, to make the Sessions Judge the final Court and that if every party approaches the High Court direct, S.99 clause (3) would become unnecessary. In Abraham v. Thankamma (1975 KLT 451) the position was stated thus:

(3.) It is unnecessary to notice in detail the history of the rule of practice settled for this Court in 1968 KLT 495. With respect to the provisions of S.435, 436, 438 and 439 of the earlier Crl. Procedure Code, a Division Bench of this Court had in Devaki v. Kitta ( 1967 KLT 31 ) laid down that ordinarily and normally a party filing a revision petition must first approach the Sessions Judge and only thereafter come to the High Court. The Division Bench followed the ruling of the Andhra Pradesh High Court in Veera Ramayya v. Udayagiri Venkita Seshavatharam (AIR 1956 And. 97). The Full Bench in 1968 KLT 495 took the view that under the then Criminal Procedure Code the Sessions Judge could not pass an effective order in certain categories of cases, but had to report the matter for the decision of the High Court (vide S.438 of the Criminal Procedure Code); and that in this view, it would not be just or equitable to compel a party to resort in the first instance to the Sessions Judge before approaching the High Court. Let us approach the consideration of the question with respect to the provisions of the present Criminal Procedure Code.