DAHYA DEVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Dahya Deva original accused in Summary Case No. 874 of 1971 on the file of the Special Judicial Magistrate First Class Railways Viramgam has filed this revision application against his conviction for an offence under section 104 of the Indian Railways Act and sentence to pay a fine of Rs. 10/in default to suffer S. I. for one week.

(2.) When this revision petition was taken up for hearing a question was raised whether this court should entertain this revision application at this stage when the applicant did not choose to move the Session Judge who could as well exercise the revisional jurisdiction conferred upon him by section 435 of the Criminal Procedure Code. Sec. 435(1) of the Criminal Procedure Code provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court etc. A bare perusal of section 435(1) will show that concurrent revisional jurisdiction is conferred upon the High Court and Session Judge. The hierarchy of Courts envisaged in sec. 6 and sec. 6-A of the Criminal Procedure Code would show that the High Court is at the apex and the courts of the Magistrates at the bottom and in between there is the court of Session. Therefore where an order of conviction is recorded by the Magistrate and the order is not appealable under Chapter XXXI of the Criminal Procedure Code it would be open to the aggrieved party to move the High Court or the Sessions Judge to exercise its or his revisional jurisdiction. It is equally true that revisional jurisdiction is conferred both on the High Court and the Sessions Judge. A question is raised by Mr. Shah that if revisional jurisdiction is conferred both on the High Court as well as the Sessions Judge why should there be any obligation upon an aggrieved person first to move the Sessions Judge and then to move the High Court. Mr. Shah drawing his support from one of the observations of N. G. Shelat J. as he then was in Suraj Mohan Babu Mishra v. State of Gujarat-VIII G.L.R. 974 urged that no useful purpose would be served by compelling a person first to move the Sessions Judge to exercise his revisional jurisdiction because in the event if he is satisfied that the order sought to be revised is illegal incorrect or improper or there is any illegality committed in the proceeding in which the order is recorded the Sessions Judge has no power finally to decide the same and he can act as provided by sec. 438 of the Criminal Procedure Code namely to report the case for the orders of the High Court simultaneously making a recommendation that the sentence or the impugned order be reversed or altered and pass consequential orders. Mr. Shah urged that the High Court while exercising the revisional jurisdiction has the powers of the Court of Appeal as provided by sec. 439 of the Criminal Procedure Code and therefore even if aggrieved person has not taken the step to approach the Sessions Judge there is no bar in law to the High Court entertaining the revisional application directly without the party having first approached the Sessions Judge. Mr. Shah relied upon the ratio in Suraj Mohans case (supra).

(3.) The observations in Suraj Mohans case that ordinarily the High Court would not entertain directly a revision application appears to have been made keeping in view one rule though the same has not been explicitly referred to. In Suraj Mohans case the order sought to be revised was made under sec. 523 of the Criminal Procedure Code. A revision application was filed in the High Court against the said order without first moving the Sessions Judge. This revision application was entertained after making two specific observations namely that even if the Sessions Judge had been moved he would not be in a position to pass any adequate orders and he would have been required to refer the matter to the High Court for having suitable orders in the matter and that would take a lot of time and the purpose behind the claim in the petition would obviously be frustrated. The second point on which the petition appears to have been entertained is that there was no bar under any provision of law showing that an application in revision cannot lie directly to the High Court and that it must always come through the Sessions Court. A reference to provision of law possible means a reference to any of the provisions of the Criminal Procedure Code because I am well nigh certain that if the attention of the court was drawn to rule 14 in Chapter XXVI headed Criminal Business in the High Court Appellate Side Rules the said proposition would not have been made. Rule 14 provides as under :-