Law of Criminal Revision in India

Law of Criminal Revision in India

Law of Criminal Revision in India

 

By : Ms.Bhakti Pasrija Sethi,Advocate

           Supreme Court of India

 

Power of Criminal Revision is conferred upon the Sessions Court and the High Court in such cases where no appeal is provided by Statute or the remedy of appeal has already been exhaused.The prime object of the Revision is to enable the superior courts to satisfy themselves as to the correctness and legality of any finding, sentence or order passed by the Trial Courts.

 

Section 397 to 405 of Criminal Procedure Code, 1973 (herein after called ‘code’) deal with the powers of revision conferred on the higher courts and the procedure to regulate these powers. The basic object behind the code in section 401 is to empower the high court to exercise the powers of an appellate court to prevent failure of justice in cases where the code does not provide for appeal. The power however is to be exercised only in exceptional cases where there has been a miscarriage of justice owing to: – a defect in the procedure or a manifest error on the point of law, excess of jurisdiction, abuse of power, where decision upon which the trial court relied has since been reversed or overruled when the revision appeal is being heard.

The revisional powers though are quite wide, have been circumscribed by certain limitations. Such as (A) in such cases where an appeal lies but there is no appeal brought in, originally no proceeding by way of revision shall be entertained at the instance of the party who would have appealed. (B) The revisional powers are not exercisable in relation to any interlocutory order passed in any appeal, inquiry and trial. (C) The court exercising revisional powers is not authorized to convert a finding of acquittal into one of conviction into one of convection. (D) A person is allowed to file only one application for revision either to the Court of Session or to the High Court.

The various sections are extracted as follows:

Section 397 in CRPC / Code of Criminal Procedure:

Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situated 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.

Explanation.- All Magistrates 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 and 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 proceeding.
(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.

 

Section 398 of Criminal Procedure Code of India – Power to order inquiry.

In examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 of sub-section (4) of section 204 or into the case of any person accused of an offence who has been discharged:

Provided that no court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

  1. Sessions Judges powers of revision.-

(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 sub-sections (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 constructed 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.

  1. Power of Additional Sessions Judge.-

An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge.

  1. High Courts powers of revision.-

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to 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 authorize 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.

  1. Power of High Court to withdraw or transfer revision cases.-

(1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judges for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the questions involved, which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the applications for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge by transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.

(2) Whenever any application for revision is transferred to the High Court that Court shall deal with the same as if it were an application duly made before itself.

(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.

(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other Court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge.

  1. Option of Court to hear parties.-

Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before 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.

  1. Statement by Metropolitan Magistrate of grounds of his decision to be considered by High Court.-

When the record of any trial held by a Metropolitan Magistrate is called for by the High Court or Court of Session under section 397, the Magistrate may submit with the record a statement setting forth the grounds of his decision or order and any facts which he thinks material to the issue; and the Court shall consider such statement before overruling or setting aside the said decision or order.

  1. High Courts order to be certified to lower Court.-

When a case is revised under this Chapter by the High Court or a Sessions Judge, it or he shall, in the manner provided by section 388, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed, and the Court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified; and, if necessary, the record shall be amended in accordance therewith.

The revisional jurisdiction of the Hon’ble High Court is also derived from the Constitution of India. Article 227 of the Constitution of India, 1949 provides for the power of Superintendence to the High Court over all courts and tribunals throughout the territories in relation to which it exercises its jurisdiction except any court or tribunal constituted by or under any law relating to the Armed Forces.

The Honble High Court has also power to issue writ of Certiorari under Article 226 of the Constitution of India. Certiorari means to “certify”. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with that to itself or to quash its order. This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law.

Difference between the Appellate and Revisional Jurisdiction of the High Court

  1. In appeal, the High Court can convert an acquittal into a convention and vice versa, but in revision it cannot convert a finding of acquittal into one of conviction ( refer to Section 401(3).
  2. The power of High Court in appeal is not as wide as that in revision. In exercising its revisional jurisdiction the High Court may even cure any irregularity or impropriety (refer to Section 397 of Criminal Procedure Code) but not in appeal. However, the High Court would not interfere, in revision unless there is a glaring defect in the procedure or a manifest error in law, which has resulted in miscarriage of justice.
  3. In disposing of a criminal appeal against conviction, the court will interfere, unless it is satisfied as to the guilt of the accused, while in revision the High Court will not interfere unless the conscience of the court is aroused to such an extent as to compel it to expressly say that the applicant ought not to have been convicted.
  4. The High Court cannot dismiss an appeal without affording the appellant or his pleader a reasonable opportunity of being heard. Such is not the case in revision proceedings.
  5. There is no provision for abatement of revision proceeding as for appeal.

Judgements on powers of Criminal Revision:

In Amur Chand Agrawal vs. Shanti Bose and another,

 

AIR 1973 SC 799, the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

 

In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system”.

 

In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon’ble Supreme Court observed that High Court “committed an error in making a re-assessment of the evidence” as in its revisional jurisdiction it was not justified in substituting its own view for that of the learned Magistrate on question of fact.

 

In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence.

 

In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under:

 

“It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint”.

 

In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338,the Hon’ble Supreme Court held as under:

 

“The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision petition filed by the respondent was allowed.In a sense it is a non speaking judgement.

 

The Hon’ble Supreme Court in Mohit vs. State of UP (2013) 7 SCC, 789, observed that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trail cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

In the matter of Sheetla Prasad vs.Sri Kant,(2010) 2SCC 190 it has been observed by the Hon’ble Supreme Court that revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce ;(2)where the admissible evidence is wrongly brushed aside as inadmissible (3)where the trial court has no jurisdiction to try the case and has still acquitted the accused ;(4)where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence;and (5) where the acquittal is based on the compounding of offence which is invalid under the law.

 

High Court in a revision is empowered to interfere with an order of acquittal and direct fresh trail. While High Court sitting in appeal under Section 386 of the code, can convert finding of acquittal into one conviction, Section 401, subsection (3) debars conversion of acquittal into conviction. High Court, however, would not disturb a finding of fact unless it appears that trail court shut out any evidence, or overlooked any material evidence or admitted inadmissible evidence or where there has been manifest error on a point of fact.

 

 

 

 

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