VIJAY KUMAR Vs. KAKI

JUDGEMENT

(1.) THESE matters has been placed before us by a learned single Judge of this Court in view of the conflicting views expressed on the question whether Second criminal revision can be entertained and adjudicated under Section 435 of the Code of Criminal Procedure smvt. 1989 by the High Court when a criminal revision against the order of the trial magistrate has already been dismissed by the learned Sessions Judge ?

(2.) CRIMINAL revision No. 43/2002 was filed before this Court against the order dated May 13, 2002 passed by the learned additional Sessions Lodge whereby criminal revision petition No. 108/2001 filed against the order dated March 13, 2001 of munsiff Judicial Magistrate 1st Class jammu was dismissed. Criminal revision petition No. 43/2002 came up for consideration before the learned single Judge and a contention was raised that the same was not maintainable in view of the decision of this court in Sardar Sardool Singh v. Teja Singh, 2001 KLJ 656 : (2002 Cri LJ 2318)Mohammad Altaf Shah v. Mst. Mahmooda, 1995 KLJ 362 : (1995 AIHC 6079); Pt. Som dut v. Gurbaksh Singh, 1994 KLJ 204 and the judgment in criminal revision No. 63 of 2003, Sudesh Kumar v. Roop Chand Contrary view of taken by another learned single judge of this Court in State v. C. K. Gulhati, 1982 KLJ 285 : (1982 Cri LJ 1923) holding that there is no provision in Section 435 of the Code of Criminal Procedure to warrant the conclusion that once a party had invoked the revisional jurisdiction of the Sessions judge, it cannot again approach the High court in the same jurisdiction, if unsuccessful before the Sessions Judge. The learned judge took the view that the revisional jurisdiction of the High Court, even though concurrent with that of the Sessions Judge, has been kept unaffected under Section 435 of the Code with the result that a party which has first approached the Sessions Judge but without any success, can again approach the High Court in its revisional jurisdiction.

(3.) LEARNED single Judge in C. K. Gulhati's case held that Section 435, as it stood then, did not disentitle a party to invoke the revisional jurisdiction of the High Court in preferring a Second revision even if he had moved the 1st revision before the Sessions court. But we may add a rider, that such a revisional jurisdiction under Section 435 as it stood then, could not have been invoked as a matter of right, since it was a suo motu power conferred on the Sessions Court as well as the High Court. True, there was no such provision in the unamended Section 435 to warrant the conclusion that once a party had invoked the revisional jurisdiction of the Sessions Judge, it could not approach the High Court with a request for invocation of its suo motu powers under Section 435. Under the unamended provision of Section 435, if an application in respect of any proceeding before any Judicial Magistrate other than the Chief Judicial Magistrate had been made under sub-section (1)either to the Sessions Judge or the Chief judicial Magistrate, no further application would be entertained by either of them. Section 435 was substituted by a new Section 435 under the Code of Criminal Procedure (Amendment) Act, 2006. Under sub-section (3) of Section 435 of the amended provision, if an application under this provision is made by any person either to the High Court or the Sessions Judge, no further application by the same person shall be entertained by either of them. But no such provision was made with regard to the concurrent jurisdiction of the High Court and the Sessions judge. It is in such a situation, unamended provision of Section 435 enabled a party to move the High Court to invoke its jurisdiction under Section 435. Further, it may be noted, the amended provisions of Section 435 (2) would not affect the inherent powers of the High Court under Section 561-A of the Code. Even if a second revision is barred under Section 435 (3), the orders can be questioned under Section 561 -A.