GHIMIRAY BHUTIA Vs. WANGEY LEPCHA

JUDGEMENT

(1.) THIS application seeks to invoke the jurisdiction of this Court under Article 226 and Article 227 of the Constitution but has been pressed and argued as a criminal revisional application as well.

(2.) THE accused-applicant has filed this application challenging the order passed by the Court of Session in exercise of its revisional powers under Section 436 of the Cri. P. C. 1898 and there can be no doubt that under that Code, which is still the law in force in Sikkim relating t0 Criminal Procedure, a revisional application against such an order to the High Court is permissible. Under the new Code of Criminal Procedure of 1973, which has not vet been extended to this State of Sikkim, any further revision to the High Court against any order passed by the Court of Session in revision is barred under Section 397 (3), which has made such an order by the Court of Session final and no longer assailable by any further revisional application to the High Court. And in such a case, a party dissatisfied with any such revisional order of the Court of Session can move the High Court only by invoking its jurisdiction under Article 226 or Article 227. as no statutory provision can take away or affect the right of a party to invoke the constitutional jurisdictions of this Court. When the Code of Criminal Procedure, 1898 was the law in force in the whole of India, the powers and the constitutional jurisdictions of the High Court under these Articles were not generally invoked because the revisional power under Section 439 of the Code was sufficiently wide and comprehensive for all practical purposes. And since that Code is still the law in force in Sikkim, vesting this High Court with wide and comprehensive powers to entertain revisional applications against revisional orders passed by the Court Of Session, then ordinarily there can be no reason as to why the constitutional jurisdiction of the High Court under Article 226 or Article 227 shall be allowed t0 be invoked without exhausting the ordinary remedy available by way of revision to this very Court under the ordinary procedural law, even though the existence of an alternative remedy may not, per se. be a bar to the exercise of the constitutional jurisdictions.

(3.) BUT Mr. A. Moulik. the learned Advocate appearing for the accused-petitioner, has franklv submitted that the reason for the petitioner not pursuing the usual and ordinary remedy by way of revision and for resorting to the constitutional remedy under Article 226 is that the remedy by way of revision was barred by time on the date when this application was filed in this Court, the same having been filed on 11-382 while the impugned order of the Court of Session was passed on 17-81. In Sikkim. the Limitation Act of 1963, which provides in Article 131 for a period of limitation for civil and criminal revisions, has not yet been extended and it has been observed by this Court in Kinzang Dahdul v. Ransul Kharga 1978 Cri. L. J. 1569 at 1572-73 as hereunder: