SARJOO Vs. BABADIN

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure, 1973, arises out of the following facts;-

(2.) THE learned Counsel for the petitioners has taken his stand on Sections 482 and 483 of the Code and has argued that the impugned order can be quashed under both or either of these two sections. The argument based on Section 483 is, however, wholly misconceived. That section says that every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate. There is no question of expeditious disposal of any pending matter, as the case already stands decided. With regard to the exercise of superintendence for the proper disposal of cases, proceeding on the assumption that the supervisory power is both judicial and administrative, it is apparent that it can be exercised only over Judicial Magistrate and not Executive Magistrates. Under Section 6 of the Code, Executive Magistrates constitute a class of criminal Courts different from the class of criminal Courts manned by the Judicial Magistrates. Sections 11 to 15 deal with Judicial Magistrates, while Executive Magistrates have been dealt with by Sections 20 to 23. Proceedings under Section 145 lie within the jurisdiction of Executive Magistrates and not judicial Magistrates. The impugned order was passed by an Executive Magistrate and there is thus no supervisory power to correct a mistake committed by such a Magistrate. The claim of the petitioners has, therefore, to be tested under Section 482.

(3.) THE learned Counsel for Babadin has vehemently argued that the revisional order passed by the learned Sessions Judge is final and sacrosanct and cannot be touched by this Court even under Section 482. He invited my attention in this regard to Sub-sections (3) of Sections 397 and 399. Sub-section (1) of Section 397 confers coordinate revisional jurisdiction upon the High Court and the Sessions Judge so that either of them has the power to call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local 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. Once the record has been called for and examined, the Sessions Judge will exercise his revisional power under Section 399 and the High Court under Section 401. However, the right to file two revisions, initially before the Sessions Judge and thereafter before the High Court has been taken away under the new Code. The analytical break-up of Sub-section (3) of Section 397. would clearly point to that fact. The break-up is to the effect (1) if an application has been made by any person, (2) under this Section (397), (3) either to the High Court or to the Sessions Judge, (4) no further application by the same person, (5) shall be entertained by the other of them. The intention is obvious that when an application has been made to either the High Court or the Sessions Judge, it cannot again be entertained by the other of them. The right now stands restricted to one revision only; and it has been left to the option of the revisionist to approach either the High Court or the Sessions Judge, that is to say, to choose the forum where he will ventilate his grievance, but to choose only one forum. The words that are significant in Sub-section (3) of Section 397 are "any person" and "same person". These words point to the situation where both parties may feel aggrieved and both may like to file a revision, or there may be several persons, arrayed on the same side and all may feel aggrieved and may like to file a revision separately from others. In such a situation, some of them may file a revision in the High Court and some before the Sessions Judge. This right of theirs to choose their own forum will not be barred by Sub-section (3) to Section 397, but in either case, each of them will be limited to only one round of their battle, namely, either to wage the war before the High Court or before the Sessions Judge. In a situation where the revisions are from a judgment of conviction and have been filed by one before the High Court and by another before the Sessions Judge, Section 402 will come into play. Where, however, the revisions filed are not against the conviction but against some other order in a criminal proceeding, the prospect of a conflict of opinion between two Courts, can be avoided by the High Court by an order of transfer passed under Section 407 or even by an order under Section 482. The purpose behind Sub-section (3) of Section 399 is different from the object underlying Sub-section (3) of Section 397. It visualizes a situation where an application for revision is made before the Sessions Judge and not before the High Court and provides for the effect of a decision given by the Sessions Judge. In such an event, the decision of the Sessions Judge in relation to the person who has filed a revision before him, shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court. This sub-section makes the revisional order passed by the Sessions Judge final. I am concerned with a situation where the Sessions Judge has dismissed the revision and the argument is two-fold, namely : (1) the revisionist cannot have a second forum to re-agitate the same matter, (2) as finality attaches to the revisional order passed- by the Sessions Judge. There can be no quarrel with this proposition of law. The use of the words "under this section" and "no further application" and "shall be entertained by the other of them", as occurring in Sub-section (3) of Section 397 and the further use of the words "where any application for revision is made" and "no further proceeding by way of revision" and "shall be entertained by the High Court" as occurring in Sub-section (3) of Section 399, can have no other meaning but to abrogate the revisional power of this Court, in a case where such power has already been exercised by the Sessions Judge. It is thus the revisional jurisdiction and the exercise of the revisional power which have been abrogated, but not the inherent jurisdiction and the exercise of the inherent power. A distinction has to be made within these two jurisdicions and the exercise of these two powers. The policy behind both the subsections is to eliminate delay in the disposal of criminal cases which otherwise would have been the result of the right to file two revisions.