NARAYAN SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THE learned District and Sessions Judge, Neemuch has invited attention of this High Court by sending a PUD dated 2 -4 -2004 regarding imposing of Rs. 1,500/ - fine upon the accused Narayansingh and Krishnakunwarbai by the learned Chief Judicial Magistrate, Neemuch in Cri. Case No. 584/2000 vide judgment dated 8 -1 -2004 thereby convicting the accused persons under section 323 of the Indian Penal Code whereas for the offence under section 323 Indian Penal Code, the maximum fine of Rs. 1,000/ - is prescribed. The learned District and Sessions Judge, Neemuch has also mentioned in the PUD that he has no suo -motu powers of revision to correct this illegality as per provision under section 399 of the Code of Criminal Procedure (For short 'New Code'). Therefore, he has referred the matter for correcting this illegality retarding imposition of fine by the learned Chief Judicial Magistrate, Neemuch. There cannot be two opinions about illegality committed by the then Chief Judicial Magistrate by imposing fine of Rs. 1,500/ - upon the accused persons because the maximum fine can be imposed for the offence under section 323, Indian Penal Code is only Rs. 1,000/ -. But, the debatable point has arisen in this revision whether the Sessions Judge has suo -motu revisional power or not to determine this issue for the sake of convenience, it would be apt to reproduce herein -below the relevant sections of the New Code i.e. 397, 399 and 401 giving revisional powers: - 397(1) 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.

(2.) EXPLANATION : -All Magistrate, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub -section, of section 398. (2) The powers of revision conferred by sub -section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. (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. -X - -X - -X - 399(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub -section (1) of section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub -section (1), the provisions of subsections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub -sections to the High Court shall be construed as references to the Sessions Judge. (3) 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 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 or any other Court. -x - -x - -x - 401(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes in 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 section 307 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. (2) No order under this section shall be made 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. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code 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. (5) Where under this Code an appeal 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 interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. -x - -x - -x - Under section 397(1) of the New Code, power of High Court and Sessions Judge are at par to call the record of the inferior Court for examining 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. The wording of this section is clear that the High Court or Sessions Judge can suo -motu call for and examine the record of the inferior Court. See: : AIR 1966 SC 911, Thakur Ram vs. State of Bihar, and : 1977 Cri.L.J. 302, Sona Ullah Mir and others vs. State. Also see : 1976 Cri.L.J. 1967, Patel Siddegowda vs. Sidde -Gowda and ors. and : 1988 Cri.L.J. 534, Baldev Singh vs. State of Haryana.

(3.) A bare reading of section 397 of the New Code suggests that it is not necessary for the accused or the prosecution to challenge an order before the learned Sessions Judge and the learned Sessions Judge has suo -motu powers of revision to satisfy himself about the correctness, legality or propriety of any finding, sentence or order passed by the inferior Court. In the old Criminal Procedure Code of 1898, the corresponding section 397 was 435 and the learned Sessions Judge was having powers to call for the record and examine the same. On examination, if he found any illegality, irregularity or impropriety in the order passed by the inferior Court, he was duty -bound to report the matter to the High Court under section 438 of the Code of Criminal Procedure, 1898 (For short 'the Old Code'). Now in new Criminal Procedure Code of 1973 (New Code), there is no such provision. Section 399 of the New Code is providing Sessions Judge's power of revision. Under section 399(1) of New Code, the Sessions Judge is empowered to exercise all or any of the powers which can be exercised by the High Court under Sub -section (1) of section 401 of New Code. Under section 399(3), any order in revision passed by the Sessions Judge shall be final and no further proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other Court. This provision clearly shows that the revisional power of the High Court and Sessions Court are concurrent. See: : 1997 Cri.LJ. 549, State of Madhya Pradesh vs. Khizar Mohammad and others section 399(1) also authorises the Sessions Judge to exercise all or any of the powers which may be exercised by the High Court under sub -section (1) of section 401 of the new Code. Under the Old Code, the Sessions Judge was not empowered to pass the order, if he found any illegality, irregularity or impropriety in any finding, sentence or order recorded or passed by the inferior Court. Now in the new Code, parallel powers are given to the Sessions Court as well as to the High Court and at the instance of the person only one revision is maintainable. There is specific bar under section 399(3) New Code, for filing second revision by same person. This difference between the old and new Code of Criminal Procedure clearly establishes that after calling for the record by the Sessions Court as per provision under section 397 of the New Code whether at the instance of the party/person or suo motu has to decide by invoking powers under section 399 read with section 401 of the New Code. In the New Code, there is no provision for referring the matter by the Sessions Judge to the High Court. This itself clearly establishes that when the Sessions Judge has suo -motu power to call the record of the inferior Court, to see legality, regularity, propriety or correctness in any order or sentence passed by the inferior Court and if he finds any illegality, irregularity, impropriety or incorrectness in passing any order or sentence by the inferior Court, he can interfere with the said order.