DARSHAN LAL Vs. INDRA KUMAR MEHTA AND A

JUDGEMENT

(1.) REVISION arises out of the order dated 27th of October, 1976 passed by the Sessions Judge, Allahabad dismissing the REVISION filed by the present applicant before him as not maintainable. The facts giving rise to this REVISION can briefly be stated as follows ; Darshan Lal, (hereinafter called the applicant) filed a criminal REVISION for the prosecution of the opposite party No. 2 under Action 420 I. P. C. The trial court found him guilty of that offence and, convicting him there under sentenced him to pay a fine of Rs. 250/-. In default of payment of fine the opposite party No. 2 was directed to undergo six months' simple imprisonment. Dissatisfied with that order the applicant filed a REVISION in the Court of Session. The learned Sessions Judge, however, vide his order dated 27th of October, 1976, rejected the REVISION summarily as not maintainable. The applicant has, therefore filed the present REVISION praying that the sentence awarded to the opposite party No. 2 be enhanced. The limited question for consideration in the present REVISION is whether the learned 6essions Judge rightly rejected the REVISION, filed before him, as not maintainable. According to Section 397 (1) a Sessions Judge can call for and examine the record of any proceedings of an inferior criminal court situate within his jurisdiction for satisfying himself as to correctness, legality or propriety of any finding, sentence or order. The grievance of the applicant in the REVISION filed by him before the Sessions Judge was that the sentence awarded by the trial court was wholly inadequate. The Sessions Judge could, therefore, examine that question in view of the powers conferred on him by sub-section (1) of Section 397 of the Code of Criminal Procedure. Further, under sub-section (1) of Section 399 a Sessions Judge, while dealing with a REVISION, can exercise all or any of the powers which may be exercised by the High Court under sub-section (i) of Section 401. by this it would follow that if the High Court, while dealing with a REVISION can enhance the sentence, the Sessions Judge can also do it. According to sub-section (1) of Section 401 the High Court, while dealing with a REVISION, can exercise any of the powers conferred on an appellate court, by Section 38 j, of the Code. According to clause (c) of section 386 of the Code, the appellate court can, in an appeal for enhancement of sentence, alter the nature or extent of the sentence so as to enhance or reduce the same. In view of this provision contained in Section 386 Cr. P. C. it should be held that the High Court, while dealing with a REVISION, can enhance the sentence. As already stated earlier the powers of a Sessions Judge, while dealing with a REVISION, are the same as that of the High Court. Since the High Court can enhance the sentence while dealing with the REVISION, the Sessions Judge can also do so. On account of the judgment having been partially burnt, it was not possible for us to decipher the whole of the judgment that has been rendered by the sessions Judge in the REVISION filed before him. The approach taken by the learned Sessions Judge in his judgment, 'however, appears to be that, since a complainant 2an move the Government to file an appeal against inadequate sentence, under sub-section (1) of Section 377, he cannot file a REVISION. While saying so the learned Sessions Judge probably had in his mind sub-section (4) of Section 401 which states that, where under this Code an appeal lies and no appeal is brought, no proceeding by way of REVISION can be entertained at the instance of the party who could have appealed. The learned Sessions Judge, however, missed to notice the fact that sub-section (4) of Section 401 bars a REVISION being filed by a person who has got a right of appeal. Subsection (1) of Section 377 does not confer ang right on a complainant to file and appeal against an inadequate' sentence. It is only the State that has got the right to file such an appeal. The mere fact that the complainant could request the Government to exercise its powers under sub-section (1) of Section 377 to file an appeal does not mean that the complainant himself has the right of appeal. That being so, sub-section (4) of Section 401 could not stand in the way of the applicant filing the REVISION before the Sessions Judge. It may not be out of place to mention here that, according to Section 417 of the Code of Criminal Procedure, as it stood before its amendment by 1956 Act, the State could file an appeal against an order of acquittal passed in any case. In other words, an appeal could be filed by the State in a case based on police charge-sheet as well as in a case arising out of a complaint filed by a private party. The complainant did not have a right of appeal at all. The complainant could only move the Government to file an appeal. It was, however, held that a complainant could file a REVISION. After the amendment of the Code of Criminal Procedute in the year 1956, a right of appeal was conferred on a complainant in a case started on a private complaint. In the case arising out of police charge-sheet the State alone could file an appeal. It was, however, held that an informer could file a REVISION against an order passed in a case arising out of a police charge-sheet. Section 439 (5), which is analogous to sub-section (4) of Section 401 of the present Code, barred a REVISION at the instance of a party that has a right of appeal, but it was held that, since an informant did not possess a right of appeal in cases arising out of police charge-sheet, a REVISION filed by him against an order of acquittal passed in such a case was not barred by Section 439 (5) of the Code. Thus on the analogy of Section 417 of the Code of Criminal Procedure also it is apparent that a complainant can file a REVISION against inadequate sentence despite the provision contained in subsection (1) of Section 377 and sub-section (4) of Section 401 of the present Code. The view taken by the learned Sessions Judge that REVISION was not maintainable was clearly erroneous. Learned counsel for the State pointed out that, in view of the provisions contained in sub-section (3) of Section 397 it is not open to us to entertain the REVISION. Sub-section (3) of Section 397 reads as follows ; "397 (3); If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them." It is true that an application under Section 397 was made before the Sessions Judge. The Sessions Judge no doubt did not decide the application on merit. That will, however, not take away the fact that the application had been made. Subsection (3) of Section 397 may, therefore, bar the present REVISION. The: present application has, however, been styled to be an application under Sections 399/401/482. It may not be open for us to entertain this application as REVISION application because of the provisions contained in sub-section (3) of Section 397 but we can exercise our powers under Section 482 of the Code of Criminal Procedure once we are convinced that the order passed by the learned Sessions Judge is erroneous. In the above view of the matter this application is allowed. The order passed by the learned Sessions Judge dated 27tn of October, 1976, is set aside and we direct that the learned Sessions Judge shall entertain Criminal Revision No. 243 of 1976 and shall decide it afresh on merits according to law.