RABINDRA NATH CAHUBEY Vs. CHARAI CHAMAR

JUDGEMENT

(1.) CAN the High Court acting in its revisional jurisdiction under Section 397 of the Criminal Procedure Code 1973, constrict the scope of a petition in revision, directed against a judgment of conviction to the limited point of sentence only - is the significant question necessitating this reference to the Division Bench. Equally at issue is the correctness of the view of a number of judgments of this Court holding to the contrary under the provision of the old Code as also of the present one.

(2.) THE facts deserve notice with relative brevity. The petitioners were brought to trial upon a complaint before Sri Ishwari Prasad, Judicial Magistrate and were convicted under Section 386 read with Section 34 of the Penal Code. And petitioner No. 1 was also convicted under Section 379 IPC and were sentenced to six months' rigorous imprisonment. The petitioners then preferred an appeal before the Sessions Judge, which was heard by the 2nd Additional Sessions Judge, Sasaram, who by his detailed judgment accepted all the findings of the trial Court and further (held) that the offences under Section 386 read with Section 34 IPC were made out against all the petitioners and that the offence under Section 379 IPC was also proved against petitioner No. 1 and accordingly affirmed the convictions and sentences imposed on the petitioners. The petitioners then preferred the present criminal revision application which came up before this Court on the 22nd of Aug. 1980, and the following order was recorded:

(3.) IT is in the light of the above that Section 403 of the Code and the corresponding Section 440 of the old Code have to be viewed. It is instructive to juxtapose the two provisions 403 of the Code 440 of the 403 of the old code"Save as otherwise expressly provided by this Code# no party has any right to be heard either personally or by pleader be fore any Court exercising its powers of revision; but the Court may# if it thinks fit# when exercising such powers# hear any party either personally or by pleader. No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision : Provided that the Court may if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect Section 439, sub -section (2). " The similarity and indeed the identity of the aforesaid provisions would make it crystal clear that for nearly a century under the criminal procedure no party has any right to be heard either personally or by pleader before the Court in the exercise of its revisional jurisdiction. This provision must be taken as a legislative rescission or in any case limitation of the general principle that a party is entitled to be heard before any order affecting it can be made. This indeed highlights the discretionary nature of the revisional jurisdiction.