NOOKIAH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The first accused in case No. 14 of the Fourth Criminal Sessions of 1953 was charged with two offences. The first was under Section 332, I. P. C., In that he voluntarily caused hurt to a public servant, viz., police constable Masilamani, by injuring him with fingernails while the accused was in his custody. The second charge was under Section 333 I. P. C., that in the course of the same transaction the accused caused grievous hurt to one Govindaswami, another police constable, while in the discharge of his duties as such public servant by twisting and breaking his left ring finger. So far as the second charge was concerned the Jury unanimously found him not guilty. With regard to the first charge, i.e., of an offence under Section 332 I. P. C., for voluntarily causing hurt to Masilamani, the jury were divided in their opinion and as many as six members of the Jury were unable to agree in their conclusions. Such being the case, under Section 305 clause (4) Crl. P. C. the learned Judge directed that the jury be discharged and the accused be tried afresh at the first Criminal Sessions of 1954. Against this order directing a retrial, the first accused has sought to prefer a criminal revision case to this court under Sections 435 and 439, Criminal P. C. The matter was posted before court for preliminary arguments as regards the maintainability of the revision before the same was numbered, since the learned counsel for the petitioner argued that with the introduction of Section 411-A in the Criminal Procedure Code, the High Court exercising its ordinary criminal jurisdiction and trying an offender at the sessions, is subordinate to the appellate side in that an appeal lies from the original trial either when the accused is acquitted or when he is convicted, the revisional jurisdiction conferred under Sections 435 and 439, Criminal P. C. is also attracted and therefore it is open to the petitioner to canvass the correctness of the order of retrial by showing that the verdict of the jury was the result of misdirections and non-directions contained in the learned Judge's charge to the Jury. It was further argued that it was not incumbent upon the learned Judge to order a retrial but that he has the power to make an entry under Section 308 Criminal P. C. that the accused need not be tried again. According to the learned counsel these are questions of law which can be successfully urged in revision.

(2.) We have heard elaborate arguments regarding the maintainability from Mr. Chinnappa Reddi the learned counsel for the petitioner and Mr. N. Koteswara Rao, who appeared for the State Prosecutor. Our 'prima facie' impression that no revision can He has been confirmed after the matter has been discussed threadbare at the hearing, and we therefore give our reasons for holding that Sections 434, 435 and 439, Criminal P. C. would not enable the appellate side to interfere with non-appealable orders of the learned Judge presiding over the Sessions, or correct, or rectify mistake or error, if any, committed during the trial at the sessions.

(3.) The revisional powers of the High Court conferred under Section 439, Criminal P. C. can be exercised in the case of any proceeding, the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. This contemplates three contingencies of which the first is the calling for the records of a case by the High Court, the second is that some court has reported to the High Court and solicited its orders and the third, which is practically 'ejusdem generis' with the earlier one, that the matter comes to the knowledge of the High Court otherwise, i.e., by a party putting an application or the High Court 'suo motu1 acting. So far as the power to call for the records is concerned, the same is laid down in Section 435, Crl. P. C., which is to the effect that the High Court and other courts mentioned therein with which we are not now concerned, may call for an examination of the record of any proceeding before an inferior criminal court situate within the local limits of its Jurisdiction for the purpose of satisfying itself etc. That is, the High Court can call for the records of a proceeding before an inferior criminal court.' Beading therefore Sections 435 and 439, Crl. P. C. together, in the case of a High Court before it exercises jurisdiction, in the first of the contingencies mentioned above, the record has to be called for from an inferior criminal court.It is argued by the learned counsel for the accused, that the Judge sitting on the original criminal sessions of the High Court is an "inferior" court to the appellate side which hears the appeal and therefore it is competent for the appellate side to call for the record of the sessions when approached by a party for that purpose or 'suo motu' by the appellate side itself. We would have had no difficulty in repelling this argument, had it not been for two decisions which have been brought to our notice by the. learned counsel. The first of them is the judgment of Chagla C. J. and Bhagwati J. in 'Krishnaji Vithal v. Emperor', AIR 1949 Bom 29 (A), where the learned Judges in similar circumstances have held that the High Court in sessions is an inferior court to the High Court on the appellate side and therefore a revision lies from the order of the High Court in sessions to the appellate side. The learned Judges conceded that the High Court acting in its, original criminal jurisdiction is not a court subordinate to the appellate side of the High Court, but they say that to equate a subordinate court with an inferior court is wrong in principle and such being the case the expression "inferior court" in Section 439, Crl. P. C. does not carry with it any stigma or suggestion that the court is under the administrative orders of the superior court. The learned Judges give expression to their conclusion in the following passage: