MADHAV GOVINDRAO VAIDYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition, which was originally filed under Articles 226 and 227 of the Constitution of India, was ordered by the Division Bench of this Court to be treated as a petition under Article 227 of the Constitution and was subsequently amended to make it one under Article 227 of the Constitution read with section 482 of the Code of Criminal Procedure. In view of this; the prayer of the petitioner that the provisions of section 3 of the Police (Incitement to Disaffection) Act, 1922, should be declared as ultra vires of the Constitution, does not survive for Consideration, and as directed by the Division Bench of this Court by the order dated 25th November 1980, the only question that survives for consideration is about the correctness of the approach adopted by the learned Additional Sessions Judge and of the view taken by him on the provisions of the Code of Criminal Procedure.

(2.) THE petitioner is the Editor of Marathi daily newspaper "Tarun Bharat", which is printed and published at Nagpur. A news item appeared in the issue of the said daily dated 6 -9 -1973 about the alleged disrespect amongst policemen for their superior officers. The police Inspector, Sitabuldi police station felt that the criticism made in the publication was not honest and tended to create feeling of disaffection in the Police Force in general and the Police Force of Nagpur City in particular, which amounted to an offence under section 3 of the Police (Incitement of Disaffection) Act, 1922. As the said offence is non -cognizable, he applied to the Judicial Magistrate, First Class, Court II, Nagpur, for permission under section 155 (21 of the Code of Criminal Procedure, 1898, to investigate the offence. The Magistrate granted permission by his order dated 2 -10 -1973. This was followed by sanction granted by the Commissioner of police in exercise of the powers under section 5 of the Police (Incitement to Disaffection) Act, 1922. Thereafter a charge -sheet came to be filed against the petitioner on 27 -1 -1974 for the aforesaid offence.

(3.) THE learned Additional Sessions Judge has held that even under the new Code of Criminal Procedure, the Sessions Judge has no power to quash the proceeding pending in the trial Court and that this power can be exercised only by the High Court under section 482 of the Criminal Procedure Code, 1973. This, to my mind, is not the correct approach. Section 397(1) lays down that the High Court or any Sessions Judge may 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 and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. High Court's powers of revision are enumerated in section 401. Sub -section (1) of section 401 lays down that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may in its discretion exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section307 and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. This subsection is exactly in the same words as section 439 (I), the Code of Criminal Procedure, 1898. The only limitation on the High Court's powers of revision is that no order under section 401 can be passed to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence, and that section 401 does not authorise the High Court to convert the finding of acquittal into one of conviction. The third limitation is that where an appeal lies, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.