BRAHMCHARI SATYANARAYAN MAHARAJ Vs. KANTILAL L DAVE

JUDGEMENT

(1.) The question which arises in this revision application is whether in the context of the relevant provisions of the Code of Criminal Procedure 1973 (hereinafter referred to as the New Code) an aggrieved person who invokes the revisional jurisdiction of the High Court directly without approaching the Sessions Court in the first instance could be refused relief on the ground that unless special cirumstances are made out his revision application cannot be entertained because he had failed to move the Sessions Court. Having regard to the importance of the question the matter has been referred to a Division Bench. We do not however propose to decide the entire case on merits. We shall only deal with and decide the question set out above and pass appropriate orders with regard to the disposal of the case on merits in accordance with the view which we ultimately take. Under the circumstances it is not necessary to set out the facts giving rise to the revision application

(2.) In order to appreciate the proper dimension of the point at issue it would be necessary first to make reference to the relevant statutory provisions. Chapter XXVI of the Bombay High Court Appellate Side Rules 1960 which bears the title Criminal Business provides in Rule 14 as under:

(3.) It might be stated that even in the absence of a statutory provision like Rule 14 serveral High Courts in this country had evolved a practice not to entertain a revision application filed by an aggrieved party under the Old Code without approaching the Sessions Judge (or the District Magistrate) in the first instance. So far as the Calcutta High Court is concerned there are three reported decisions which laid down that the High Court would not save on some special ground shown entertain a revision application unless a previous application shall have been made to the lower Court having a concurrent jurisdiction (See QUEEN EMPRESS V. REOLAH I. L. R. 14 CALCUTTA 887 EMPEROR V. ABDUS SOBHAN I. L. R. 36 CALCUTTA 643 AND RASH BEHARI V. PHARI BHUSAN I. L. R. 48 CALCUTTA 534 The decision in Reolahs case (supra) was arrived at as indicated in Abdus Sobhans case (supra) after consultation with the Chief and other Judges of the Calcutta High Court on the point. Similar rule or practice appears to have been obtaining in the High Court of Patna as revealed by BIPIN BEHARI MUKHARJI V. EMPEROR A. I. R. 1938 PAT. 588 PRASAD GARERI V. MT. KESARI A. I. R. 1941 PAT. 444 and CHAIRMAN BIHAR MUNICIPALITY V. MT. RAMNANDI KUER A. I. R. 1941 PAT. 548. The Assam High Court in GOBARDHANA DAS V. CHATURBHUJ A. I. R 1950 ASSAM 165 made reference to a similar practice prevailing in that Court. The Lahore High Court appears to have adopted the same rule (see MOHAMED ISHAQ V. EMPEROR A. I. R. 1927 LAHORE 689 ). The Chief Court of Oudh fell in line with this practice as is evident from the decision in DEVI SINGH V. EMPEROR A. I. R. 1941 OUDH 268. The Allahabad High Court in a Full Bench judgment delivered by an eminent Judge Sulaiman C. J. in SHAILABALA DEVI V. EMPEROR A. I. R. 1933 ALL. 678 referred to the long standing practice which had grown up in the said High Court on similar lines. The Nagpur High Court also followed the same practice (see BHJIRAO V. MT. DADI BAI A. I. R. 1926 NAGPUR 285 AND CHINAI V. EMPEROR A. I. R. 1929 NAGPUR 13 ). The Andhra Pradesh High Court also adopted the same practice see VEERARAMAYYA V. VANKATA SESHAVATHARAM A I R. 1956 ANDHRA 97 AND SHRI RAMA MURTHY V. STATE A. I. R. 1959 ANDHRA 37 F. B.). The Bombay High Court followed similar practice. In QUEEN EMPRESS V. CHAGAN DAYARAM T. L R. 14 BOM. 331 it was observed that the Bombay High Court was of late following the decision of the Calcutta High Court in Reolahs case (supra) and refusing to entertain revision applications in cases where the Sessions Judge or the District Magistrate had concurrent revisional jurisdiction except on special grounds unless a previous application to the lower Court was made. In SAYLARAM V. DHYANESHWAR VISHNU A. I. R. 1942 BOM. 148 it was reiterated that the High Court would not norm. any receive a revision petition unless the lower Courts were previously moved. So far as this High Court is concerned there are two decisions to which reference may be made. In SURAJ MOHAN BABU MISHRA V. STATE OF GUJARAT VII G. L. R. 974 N. G Shelat J. observed that ordinarily the High Court was reluctant to entertain any petition in revision directed against any order passed by the Magistrate. However there was no bar under any provision of law that an application in revision could not lie directly to the High Court and that it must always come through the Sessions Court. When any failure of justice is brought to the notice of the High Court it could certainly interfere and see that justice was done to the party inasmuch as the High Court discharges statutory functions of supervising the administration of justice. The attention of the learned Judge does not appear to have been invited to the decisions of the Bombay High Court referred to earlier which are binding on this Court as also to Rule 14. That is why in DAHYA DEVI V. THE STATE OF GUJARAT XIV G. L. R. 184 D. A. Desai J. observed that it was wellnigh certain that had the attention of the learned judge been drawn to Rule 14 an observation as wide as the one made in Suraj Mohans case (supra) would not have found place in the said decision. D. A. Desai J. further observed that the scheme for special circumstances to be alleged and prima facie established the party aggrieved by an order of the Magistrate must first approach the Sessions Judge and that the High Court would not in the absence of special circumstances entertain a revision application directly. The only High Court which appears to have followed a different practice is the Madras High Court but not invariably. Even in that High Court a view appears to have prevailed that the High Court should not interfere in revision till the other remedy available to the petitioner in the lower Court was availed of (see GOPOBONDU BEHARA V. VENKATASAM PATULU A. I. R. 1924 MADRAS 238 AND KASI VISHWANADHAM V. MADAN SINGH A. I. R. 1948 MADRAS 422).