PUVVULA ABBULU Vs. STATE

JUDGEMENT

(1.) In Alapati Sriramamurthy, In re, a Full Bench of the Andhra Pradesh High Court following Veera Ramayya v. Seshavataram, laid down a rule of practice that, except under exceptional circumstances, the High Court would not entertain a revision petition under sections 435 and 439 of the Criminal Procedure Code of 1898, unless Sessions Judge was moved in the first instance. While laying down the rule of practice the Full Bench noticed that such was the rule of practice followed by the High Courts of Allahabad, Bombay, Calcutta etc., though not of the Madras High Court or the Andhra Pradesh High Court until the decision in Veera Ramayya v. Seshavattram. The Full Bench thus consciously departed from the practice followed by the Madras High Court and the Andhra Pradesh High Court till then, with a view to fall in line with the other High Courts. But that was under the Criminal Procedure Code of 1898. The Code of 1898, has now been repealed and the Code of Criminal Procedure, 1973 has been taken its place. Our learned brother Chennakesav Reddy, J., has referred to us the question whether the rule of practice would continue to be followed after the coming into force of the new Code.

(2.) Section 435 of the Code of Criminal Procedure, 1898, enabled the High Court or any Sessions judge or District Magistrate to call for and examine the record of any proceeding before any inferior Criminal Court situated within the local limits of its or his 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. It also provided that if an application had been made either to the Sessions Judge or the District Magistrate no further application should be entertained by the other of them. Section 436 enabled the High Court or the Sessions Judge, on an examination, of the record under section 435 or otherwise, to direct the District Magistrate by himself or by any Magistrate or by any Magistrate subordinate to him to make further inquiry into any complaint which had been dismissed under section 203 or section 204 (3) or into the case of any person accused of an offence who had been discharged. Section 437 enabled the Sessions Judge or the District Magistrate, on examining the record of any case under section 435 or otherwise, if he considered that such case was triable exclusively by the Court of Session and that an accused person had been improperly discharged by the inferior Court, to cause such person to be arrested and instead of directing a fresh enquiry order him to be committed for trial upon the matter of which he had been improperly discharged. Section 438 enabled the Sessions Judge or the District Magistrate, on examining under section 435 or otherwise, the record of any proceeding, to report for the orders of the High Court the result of such examination. Section 439 empowered the High Court, in the case of any proceeding the record of which had been called for by itself or which had been reported for orders or which otherwise came to its knowledge, to exercise any of the powers conferred on a Court of appeal, etc. Thus, except in the limited class of cases an improper discharge or an improper dismissal of a complaint for which provision for interference by the Sessions Judge was made in sections 436 and 437, Criminal Procedure Code, the sessions Judge was not competent to exercise any revisional powers such as those conferred on the High Court by section 439, Criminal Procedure Code. The sessions Judge could only report the result of his examination to the High Court for orders under section 438, Criminal Procedure Code, notwithstanding that he was concurrently empowered with the High Court to call for and examine the records under section 435, Criminal Procedure Code. The High Court, of course, always held the power to exercise revisional powers whether or not the Sessions Judge had been moved. The refusal of the Sessions Judge to make a reference to the High Court under section 438 did not exhaust the jurisdiction of the High Court to directly entertain a revision petition. Nor did the failure of a party to move the Sessions Judge in the first instance bar such person absolutely from moving the High Court. The rule of practice laid down bv the Full Bench in the case of Alapati Sri Ramamurthy was thought to be advantageous to the litigants as it would be less expensive for the parties to approach the Sessions Judge and request him to make a reference to the High Court. It was also thought that the time of the High Court would not be unnecessarily spent in examining the record of cases. The High Court would also have the opinion of the Subordinate Court before it.

(3.) Now under the Criminal Procedure Code of 1973 there have been some radical departures from the Code of 1898. The powers of the Sessions Judge to interfere in revision are no longer confined to cases of improper discharge and improper dismissals of complaints. Under section 399 (1) and (2) of the present Code the Sessions Judge, in the case of any proceeding the record of which has been called for by himself, may exercise all or any of the powers which may be exercised by the High Court under section 401 (1). Section 401 (1) enables the High Court to exercise in its revisional jurisdiction many of the powers conferred on a Court of appeal by sections 386, 389, 390, 391, etc. The conferment of full revisional powers on the Sessions Judge by the 1973 Code should make the observations of the Full Bench in Alapati Sriramurthy's case applicable with greater force and vigour. However, that cannot be, because of section 397 (3) and section 399 (3). Section 397 (3) provides that if an application under section 397 to call for the records of an inferior criminal Court 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. Section 399 (3) provides that where any application for revision is made by or on behalf of any person before the Sessions Judge the decision of the Sessions Judge thereon in relation to such a person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court. The effect of these two provisions is that, while a person has the choice to move either the High Court or the Sessions Judge under section 397, if he chooses to go before the Sessions Judge he cannot thereafter go before the High Court even if the Sessions Judge rejects his revision application. This is quite unlike the position under the 1898 Code. As already pointed out by us, under the 1898 Code the dismissal by the Sessions Judge of a revision petition filed by a person did not bar that person from moving the High Court to exercise its revisional powers. Such being the situation under the present Code an nsistance by a rule of practice that a person should approach the Sessions Judge and not the High Court would result in the destruction of the right of he person to move the High Court under section 397. The rule of practice laid down by the Full Bench under the old Code is inconsistent with the scheme of the new Code. The High Court can no longer follow the rule of practice and refuse to entertain a petition under section 397 (i) on the ground that the Sessions Judge has not been moved because once the Sessions Judge is moved, the High Court's jurisdiction will stand ousted by sections 397 (3) and 399 (3). We are therefore of the view that the rule of practice laid down by the Full Bench in Alapati Sriramamurthy cannot any longer be followed. The papers may now go before the learned single Judge for appropriate orders. Revision maintainable.