VEDPAL SINGH Vs. STATE

JUDGEMENT

(1.) The applicant has been convicted by the trial Court for an offence under Section 25 Arms Act and Section 171 I. P. C. and sentenced to fine of Rs. 200/- on the first count and to a fine of Rs. 50/- on the second, vide order of the Metropo litan Magistrate Juhi, Kanpur dated 3-9-1981. Aggrieved thereby he filed a revision in the Court of the District and Sessions Judge, Kanpur, which was dismissed on 3-12- 1981. The same application viz, Vedpal Singh, who had lost before the Court of the. District and Sessions Judge, Kan pur has again filed a revision in this Court, which has been numbered as Criminal Revision No. 1958 of 1981. An objection was raised by the office that a second revision by the same applicant is not maintainable in view of Section 397 (3) Cr. P. C The matter came up before brother R. B. Lal, J. , who admitted the instant revi sion. Before him learned counsel has referred to Sections 402 (4), 401 (5), 399 (2) and 376 (d) and proviso to clause (iii) of the Code of Criminal Procedure. This Court admitted the revision for a consideration of this legal question. Today when the revision has come up before me, learned counsel for the applicant has made a number of sub missions. His first submission is that the revision filed before the District and Sessions Judge, Kanpur was not main tainable in law. The proper remedy for the applicant was to file an appeal before him. His second submission was that even if an1 error had been committed by the applicant in filing a revision before the District and Ses sions Judge, Kanpur, the Sessions Judge should have treated the same as an appeal and decided on merits. In support of this submission certain pro visions of law have been brought to my notice which I shall deal with here after. Section 376 Cr. P. C, bars an appeal in petty cases. Sub-section (c) of Section 376 Cr. P. C. runs as under: "notwithstanding anything con tained in Section 374, there shall be no appeal by a convicted person in any of the following cases, namely- (c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundr ed rupees. . . . . . " Counsel for the applicant has rightly pointed out that in the instant case the trial Court has imposed fine of Rs. 200/- on the applicant for the offence under Section 25 Arms Act. He has therefore, submitted that since the fine imposed was in excess of Rs. 100/-, therefore the bar contained in Section 376 (c) Cr. P. C. was not applicable. As such, he submits that the proper remedy for the applicant was to file an appeal before the District and Ses sions Judge, Kanpur. I do not find any reason to differ with the appli cant's counsel in this connection. I agree with him that the remedy for the applicant was to file an appeal before the District and Sessions Judge, Kanpur instead of a revision. Reliance was placed by the learned counsel for the applicant on Section 401 (5) Cr. P. C. which runs as follows: "where under this Code an ap peal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the applica tion for revision as a petition of appeal and deal with the same accordingly. " Along with this provision reference has also been made to Section 399 (2) Cr. P. C, which runs to the follow ing effect: "where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3) (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-section to the High Court shall be construed as referen ces to the Sessions Judge. " Reading both these sections together there can be no doubt that the Sessions Judge exercises powers analogous to that of the High Court, while exercising revisional jurisdiction, and, therefore, if the High Court has the power to treat a revision as an appeal, the same power vests in the Sessions Judge also. It is thus clear that the Sessions Judge, Kanpur, before whom the revision had been filed by the applicant could treat it as an appeal and dispose it of as such. There is no doubt in my mind that this power vested in that Court. Two questions now remain for consideration: 1. As to what in fact is the nature of the order passed by the Sessions Judge. 2. As to what is the effect of Section 397 (3) Cr. P. C. While dealing with the first ques tion it may be observed that the Sessions Judge has at one place pointed out that "in revision, appreciation of evidence is not desirable unless and until any illegality or miscarriage of justice or perversity is pointed out. " There can be no quarrel with this proposition of law. which has been mentioned in the body of the judg ment. But the further question is whether the judgment stops here at this observation, or whether it goes further to consider the factual submission and contradictions, which are said to exist on the record and which were placed before the Sessions Judge for conside ration. I have very carefully examined the judgment of the Sessions Judge, After this observation of the Sessions Judge, I find that he has actually gone into the factual submission, which have been made before him. He has also considered the contradictions in the evidence which had been point ed out by the learned counsel. The specific question as to what was the dress which was being worn by the applicant at the time of his arrest or whether he was arrested from a diffe rent Mohalla, has been considered by him in detail. He has referred to the evidence on this question, as also the contradictions pointed out and then he arrived at the following findings: ''taking the entire testimony as a whole both these witnesses appear to have corroborated the prosecu tion case on all material points. There appears no contradiction as regards to the presence of the accused on the spot, his wearing of the Police Dress and using the Police token and label etc. , the detention by accused of these two persons at the place as pointed out by the prosecution and also the accused detained both these persons and than started taking search of the person of Chandra Bhan. They have also supported that during the period of this search the police party reached the spot and Darogaji interrogated the accused, who disclosed his name and address on the spot and on his search being made by Daro gaji, a Rampuri knife was recover ed without licence and then the recovered knife and the clothes which the accused was wearing, were sealed on the spot and a re covery-farad was prepared. It has been stated by the prosecution that the accused was wearing khakhi woollen pant. This fact has also been supported by the P. W. 3 Chandrabhan. . . . . . Further I would also like to say that the arrest of the accused on the spot has not been challenged by the revisionist any where either before the lower Court or before me. In these circumstances, there appears no question of falsely implicating the accused whatsoever. " These observations made by the learned Sessions Judge after a consi deration of the evidence on the record, clearly indicates that despite his obser vations regarding limitations of a revisional Court, the Sessions Judge, has actually gone into the merits and facts of the case, considered the evidence and thereafter recorded findings of fact. In effect he has dealt with the revision as an appeal. In that view of the matter, I do not think it would be conducive to the interest of justice to remand the case back to the Sessions Judge for reconsideration of the evid ence on record, because this would amount to a duplicate exercise in futi lity. It was the duty of the appellant's counsel to have pointed out to the Ses sions Judge that the revision had been filed by mistake and that it should be treated as an appeal. But in spite of this omission the fact of the matter was that the Sessions Judge decided all questions of fact mentioned in the case, as submitted by the appellant's counsel, I am fully satisfied that the applicant has in fact been given a pro per hearing and consideration of the revision as an appeal and no prejudice whatsoever has been caused to him. As such no interference is called for in revision. Before parting with this case, how ever, I would like to refer to the office report that Section 397 (3) Cr. P. C. bars the entertain ability of a second revision by the same person before this Court. In reply to this, an argument has been advanced by the learned counsel that because a revision did not lie to the Sessions Judge, but an appeal lay, therefore, the bar of Section 397 (3) Cr. P. C. Judge decided the revi sion on merits and after considering the evidence on the record passed an order on the merits as an appeal, this objection is not sustainable. Even otherwise Section 397 (3) Cr. P. C. does not deprive this Court of its stio moto revisional powers to summon the record of any subordinate Court and to correct an error, irregularity or illegality in oder to prevent a miscarriage of justice, and this is one of those cases in which the revision should be entertained. In the result this revision fails and is hereby dismissed. .