H M JOSHI Vs. MANOJKUMAR JAIN

JUDGEMENT

(1.) The question which has engaged the attention of this Court in these three matters is as to whether a party like Municipal Corporation (not being State as such) has the remedy of revision under Sec. 397 of the Criminal Procedure Code before the Sessions Court, if it is aggrieved against the inadequacy of the sentence ? In this context the relative scope and amplitude of Secs. 377, 386, 397 and 401(4) is required to be considered and further that in case such revision is held to be legally maintainable, whether the order passed by the Sessions Court rejecting the revision on the ground of the same being not maintainable is open to be remedied by this Court under Sec. 482 Cr. P. C. ? Criminal Appeal No. 832 of 1995 The Chief Judicial Magistrate, Bhavnagar passed an order dated 5-3-1993 whereby he imposed a fine of Rs. 300.00 in default to undergo 5 days' S. I. for the offence under Sec. 398 of the Bombay Provincial Municipal Corporations Act, 1949 in Criminal Case No. 16809 of 1993 against the respondent No. 1 for a Municipal offence in the matter of evasion of octroi. Against this order dated 5-3-1993, the Bhavnagar Municipal Corporation preferred a Criminal Revision Application No. 117 of 1995. The learned Sessions Judge, Bhavnagar by his order dated 1-7-1995 held that the Revision Application under Sec. 397 of Cr. P. C. was not maintainable. The grievance of the Bhavnagar Municipal Corporation before the Sessions Court was that the punishment of fine of Rs. 300.00 only was inadequate, meaning thereby that through the Revision Application before the learned Sessions Judge, Bhavnagar Municipal Corporation had sought enhancement of the sentence. Against this order dated 1-7-1995 passed by the learned Sessions Judge, Bhavnagar holding the Criminal Revision Application to be not maintainable under Sec. 397 of Cr. P. C., Bhavnagar Municipal Corporation has preferred the present Appeal under Sec. 377 read with Sec. 386 and Sec. 482 of the Cr. P. C. Criminal Appeal No. 833 of 1995 The Chief Judicial Magistrate, Bhavnagar passed an order dated 4-3-1993 imposing a fine of Rs. 250.00 and in default to undergo 5 days' S. I. against the respondent No. 1 for an offence under Sec. 398 of the Bombay Provincial Municipal Corporations Act, 1949 in Criminal Case No. 16800 of 1993. Against this order dated 4-3-1993, Bhavnagar Municipal Corporation preferred a Revision Application before the Sessions Court, Bhavnagar under Sec. 397 of the Cr. P. C. with a grievance that the fine of Rs. 250.00 is inadequate and thus the Revision for enhancement of the sentence. This Revision Application was held to be not maintainable by the learned Sessions Judge, Bhavnagar by order dated 1-7-1995 passed in Criminal Revision Application No. 119 of 1995. Against this order date 1-7-1995 passed by the learned Sessions Judge, Bhavnagar this Appeal has been preferred under Sec. 377 read with Sec. 386 and Sec. 482 of the Cr. P. C. Criminal Appeal No. 834 of 1995 The Chief Judicial Magistrate, Bhavnagar passed an order dated 5-3-1993 imposing a fine of Rs. 300.00 and in default to undergo 3 days' S. I. against the respondent No. 1 for an offence under Sec. 398 of the Bombay Provincial Municipal Corporations Act, 1949 in Criminal Case No. 16802 of 1993. Against this order dated 5-3-1993 Bhavnagar Municipal Corporation preferred a Revision Application before the Sessions Court, Bhavnagar under Sec. 397 of Cr. P. C. with a grievance that the fine of Rs. 300.00 is inadequate and thus the Revision for enhancement of the sentence. This Revision Application was held to be not maintainable by the learned Sessions Judge, Bhavnagar by order dated 1-7-1995 passed in Criminal Revision Application No. 118 of 1995. Against this order dated 1-7-1995 passed by the learned Sessions Judge, Bhavnagar this Appeal has been preferred under Sec. 377 read with Secs. 386 and 482 of the Cr. P. C.

(2.) While challenging the orders dated 1-7-1995 passed by the learned Sessions Judge, Bhavnagar in all the three aforesaid Criminal Revision Applications, Mr. Thakker appearing for the Bhavnagar Municipal Corporation has submitted that the Revision Applications filed by the Bhavnagar Municipal Corporation under Sec. 397 of the Cr. P. C. were maintainable, but the learned Sessions Judge has committed a serious jurisdictional error while holding that the Revision Applications were not maintainable under Sec. 397 of the Cr. P. C.

(3.) Mr. Budhbhatti and Mr. Prajapati appearing on behalf of the respondents in the respective Appeals in which they are representing the respondent No. 1 have submitted that in case of inadequacy of the sentence, the Appeal could be preferred under Sec. 377 of the Cr. P. C. and under Sec. 401(1) of Cr. P. C. In case no Appeal is preferred for enhancement of the sentence, no proceedings by way of Revision could be entertained at the instance of the party and, therefore, the Revisions have been rightly held to be not maintainable by the Sessions Court. It has been further argued by them that the present impugned orders are the orders which have been passed by the learned Sessions Judge rejecting the Revisions preferred under Sec. 397 of the Cr. P. C. and there is no question of second revision or any Appeal against the impugned orders rejecting the Revision Applications.