High courts power of revision

Introduction

As the code says that there is no right to appeal in every case and it is confined to such cases as are specifically provided by the law. Even in such specified cases the code allows only one appeal and a review of the decision of the appellant court is not normally permissible by way of further appeal to yet another higher court. In order to avoid the possibility of any miscarriage of justice in cases where no right of appeal is available the code has devised another review procedure, namely REVISION. Section 397 to 405 of Criminal Procedure Code deals with the powers of revision conferred on the higher courts and the procedure to regulate these powers. The powers of revision conferred upon the higher courts are very wide and are purely discretionary in nature. There fore no party has right t heard before any court exercising such powers.

The basic object behind the code in section 401 is to empower the high court to exercise the powers of an appellant 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. In exercising the power of revision, which is discretionary, the court should always bear in mind the limitation that grab of exercising its power of revision; it cannot ion effect exercise the power of appeal in the face of statutory prohibitions.

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 if once such an application is made to one court, no further application by the same person shall be entertained by the other court.

All this provisions and the limitations are being given by the section 401 of the Criminal procedure code of 1973. Further the researcher would like to go with its provisions separately and what all lies with the high court in such matters with the help of the case laws.

Jurisdiction Of The High Court As A Revisional Power

The High Courts power to jurisdiction to act as a revisional court has to be deduced from all the provisions in section 397-401 read together. The points on which they are read together are as follows:

  1. The High Court my it self call for the record of an inferior court under section 397 either on the application of a party aggrieved suo moto which is section 401(1).

  2. When the high court has before it on appeal the record of a criminal proceeding, it may exercise its power of revision under section 401 in respect of a matter in regard to which it could have otherwise exercised its power of revision even where the appeal is incomplete. It should be noted that where in a proceeding on appeal the court proposes to exercise its revisional powers; its intention to that effect should be made clear in its orders. If however high court proceeds in exercise of its power as an appellant court, assuming that the appeal is complete and subsequently it is discovered that appeal was incompetent and that accordingly the order passed by the high court was void, the order cannot be saved by treating it as having been passed by the High Court as a court of revision.

  3. The High Court may also exercise its revisional powers where the defect in the record of a case before an inferior court comes to its knowledge in any other manner.

Difference Between The Appellant And Revisional Jurisdiction Of The High Court:

  1. Though sub section (1) of the section 401 of the criminal procedure code extends all the appellate powers of the High Court to its revisional jurisdiction, it is subject to exceptions specified in the other sub-section as a result of which the following points of distinction should be noted.

    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 that is in Section 401(3).

    2. The power of High Court in appeal is not so wide as that in revision. In exercising its revisional jurisdiction the High Court may even cure any irregularity or impropriety Section 397 of Criminal Procedure Code that is not so in appeal. But normally, the High Court would not interfere, in reyision unless there is a glaring defect in the procedure or a manifest error in law, which has resulted in flagrant 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 on the evidenced.

    4. The High Court cannot dismiss an appeal without affording the appellant or his pleader a reasonable opportunity of being heard. But in revision the High Court is not bound to hear the applicant or his pleader save while enhancing any sentence, in which case the accused shall be heard as of right, this is in section 401(2) or criminal procedure code.

    5. There is no provision for abatement of revision proceeding as for appeal.

Section 401 And Article 226 And 227 Of The Constitution Of India:

In an appropriate case, it may be permissible for High Court to protect a person from illegal prosecution, by granting an appropriate write such as writ of mandamus.

Section 401 of Cr.P.C and Article 227 grants the extraordinary constitutional power to the High Court under Article 227 which cannot be taken away by anything in section 397, 401 of the Cr.P.C. Of course the High Court can interfere under Article 227 only if the conditions necessary for application of that provision exist such as where the order in question is without jurisdiction or founded on no evidence. But Art. 227 cannot be used to interfere with a matter in the discretion of the inferior Court.

Who May Apply For Revision

There is a consensus of opinion that unless the High Court acts Suo Moto, it can be moved to exercise its power of revision only when an aggrieved party makes an application under section 397(1) to call for the records, such aggrieved party may be the accused himself or the complainant or some other person. When a case has been instituted on police report, a private party cannot, therefore, make such application and move the High Court to call for the records and to exercise its power under section 401, in revision unless there are exceptional circumstances. But when the records come up before the High Court on appeal against conviction by the accused, the High court entertained a revision petition for enhancement of the sentence filed by a brother of the deceased and enhanced the sentence, after issuing notice upon the accused. The Supreme Court upheld this order as a suo motu exercise of its revisional power, for the purpose of which anybody could draw the attention of the High Court to the illegality or irregularity in the order or sentence. In short, the application of a person who has no locus standi may be treated as information to induce the High Court to precede suo motu in a present case. 1) Section 401(4) says that when a party is entitled to appeal against an order, it is not entitled to apply in revision without first appealing against such order. Hence, where a state government has failed to appeal against an order or acquittal, it cannot move in revision against that order. Under sub section (4) of section 378, a complainant is entitled to appeal if (a) the case has not been instituted on his complaint and (b) if the High Court grants him special leave to file such appeal. Hence, in such a case, the complainant cannot apply for revision without first seeking the special leave to appeal from the High Court. The complainant, in cases other than the above, or even a third party, may apply for revision, provided only there are exceptional grounds such as: Absence of jurisdiction, Miscarriage of Justice.

Whether The High Court Can Exercise Its Power Of Revision Where An Appeal Is Pending Against The Impugned Order Before The Sessions Court.

The usual rule of practice is that the High Court would not excise its revisional power under section 401, in a case where the aggrieved party has appealed against the judgment or order before an inferior court, until that appeal is disposed of. But there may be exceptional cases where the ends of justice required that appeal itself be heard by the High Court and n such a case, it is open to the High Court to call for the records of the appeal under its revisional power, hear and dismiss the appeal and thereafter enhance the sentence under its revisional power.

Powers Of The Court To Revision

Powers Of A Court In Revision

The revisional powers of a High Court are very wide. Section 397 which is linked with Sec. 401 indicates the circumstance in which such powers can be exercised. Such powers are intended to be used by the High Court to decide all questions as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by an inferior criminal court and even as to the regularity of any proceeding of any inferior court. The object of conferring such powers on the High Court is to clothe the highest court in a state with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders. Section 401(1) confers on the High Court all the powers of the appellate court as mentioned in Ss 386, 389 390 and 391. It also empowers the High Court to direct tender of pardon to the accused person as contemplated by S.307. Apart from these powers the court has given additional powers in respect of specific cases falling under S. 106(4), 356(4), 357(4)….etc. Any order passed in any proceedings under the Code, except when it is specifically barred such as an interlocutory order, is revisable by the High Court under S.401.

The revisional powers under 397 and 401 are entirely discretionary. There is no vested right of revision in the same sense in which there is vested right of appeal. These sections do not create any right in the litigant, but only conserve the powers of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that subordinate criminal courts do not exceed their jurisdiction, or abuse the powers vested in them by the Code.

Who Can Invoke Revisional Jurisdiction:

The High Court can exercise its powers suo moto or on any petition of any aggrieved party or even on the application of any person. However, there are 2 limitations:

  • In a case where any application for revision is made by or on behalf of any person before the Sessions Judge, no further proceeding by way of petition shall be entertained by the High Court.

  • In a case where under this Code an appeal lies but no appeal is brought, then according to sub-section 4 of S.401, no way of revision shall be entertained at the instance of the party who could have pleaded. This rule is based on sound policy that a person who has not exhausted his remedies by law should not normally be allowed to invoke revisional jurisdiction of the High Court.

A private party has no locus standi in a case instituted on a police report and has right to demand an adjudication on an application in revision. He cannot claim locus standi even if the Public Prosecutor permits him to seek revision. But it cannot be said that a private party has no right to bring to the notice of the Sessions Judge or the High Court any illegality committed by the subordinate court. There may be exceptional circumstances I which, on a revision application filed by a private party, revisional jurisdiction may appropriately be exercised. However, while dealing with such a revision application it would not be irrelevant to bear in mind the fact that court's jurisdiction has been invoked by a private party and that the criminal law is not to be used as an instrument wreaking private vengeance by an aggrieved party against the person who according to that party has caused injury to it. Keeping this fact in view if the court finds that there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been flagrant miscarriage of justice, revisional jurisdiction should be exercised. In a case, while the appeal was pending in the Sessions Court a revision application was filed in the HC by the complainant ho also prayed for transferring the appeal from the Sessions to the High Court to be heard along with the revisions. The court rejected the prayer for the transfer and ruled that the criminal revision case should remain pending until the disposal of the appeal by the Sessions Court to enable the complainant to pursue the same after the appeals are disposed of by the Sessions Court.

How The Powers Are Exercised:

The exercise of jurisdiction under S.401 is discretionary and such powers are to be used only in exceptional cases where there is a glaring defect in the procedure or there is manifest on point of law and consequently there has been a flagrant miscarriage of justice. The exercise of revisional power is justified only to set right grave injustice not merely to rectify every error however inconsequential. Merely because the lower court has taken a wrong view of law or misapprehended the evidence on the record cannot by itself justify the interference or revision unless it has also resulted in grave injustice? It is no doubt not possible nor practicable to lay down any rigid test of uniform application and the matter has to be left to the sound judicial discretion of the HC in each case to determine if it should exercise it extraordinary power of revision to set right injustice. Ordinarily the HC court will not interfere; but in a case where there has been gross injustice, or where evidence has been overlooked or not considered in its true perspective, the HC must interfere.

While exercising the power of revision, the HC has to work I conformity with two statutory limitations:

  • The powers of revision shall not be exercised in any interlocutory order;

  • The court having exercised such power shall not have the power to convert a finding of acquittal into one of conviction.

Section 401(1) provides that in the exercise or revisional jurisdiction the HC may exercise any of he powers of the court of appeal. As the court of appeal is entitled under 386(a) to reverse an order of acquittal or to direct a retrial, the HC in the exercise of its revisional powers would also be entitled to record a conviction by reversing the order of the acquittal.

But 401(3) prohibit the High Court from converting a finding of acquittal into one of conviction. This places limitations on the power of the HC to set aside a finding of acquittal in the revision, particularly when the state had not thought fit to appeal to the HC against the finding of the acquittal and where the HC is exercising the revisional jurisdiction at the instance of private parties. In a number of decisions, the Supreme Court has held that the revisional power of the HC to set aside the order of the acquittal at the instance of private parties should be exercised only in exceptional circumstances where there is some glaring defect in the procedure or there is a manifest error on the point of law.

It would follow from the above that where an acquittal is based on the compounding an offence and the compounding is invalid under the law, the acquittal would be liable to be set aside by the HC in the exercise of such jurisdiction.

In a case, the acquittal recorded by the Sessions Court was reversed and the accused was convicted by the HC, acting on the letter from a prosecution witness, by treating it is a criminal revision petition. The SC disapproved of the HC's action in the following words:

No doubt the HC in exercise of its revisional powers can set aside an order of acquittal if it comes within the ambit of exceptional circumstance enumerated above, but it cannot convert an order acquittal into an order of conviction. The only course left is to order for a retrial.

Case Laws

In this chapter researcher would like to discuss some of the case laws which deals with the Section 401 of the Criminal Procedure Code.

Connected herewith is the question about the options open to the High Court in case a judgment of acquittal, when examined within the parameters laid down by D.Stephens vs. Nosibolla (Supra), is found to call for interference. The High Court cannot convert the acquittal into conviction. The earlier Code of 1898 also gave similar powers to the High Court by Section 439. The earlier Code and the present one by Sections 439(4) and 401(3) respectively have imposed a restriction by enacting that the revisional jurisdiction cannot be exercised to convert an acquittal into conviction:

Sec. 401 High Court's powers of revision.

Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.

In the case of Bansi Lal and Othres v. Laxman Singh : - The five appellants were tried by the Court of Additional Sessions Judge, Delhi on a charge of murder under Section 302 read with Section 34 of the Indian Penal Code. After a very detailed consideration of the evidence adduced in the case, the learned Additional Sessions Judge acquitted the appellants giving them the benefit of doubt. The respondent herein, who is a son of the deceased victim of the murder preferred a criminal revision petition before the High Court of Delhi under Section 397/401, Cr.P.C. challenging the order of acquittal passed by the learned Additional Sessions Judge. A learned Single Judge of the High Court allowed that revision petition, set aside the acquittal of the appellants and remitted the case to the trial Court for retrial.

4. Aggrieved by the said judgment of the High Court the appellants have come up to this Court with this appeal and the main contention raised by them is that the learned Single Judge of the High Court has transgressed the bounds of his revisional jurisdiction in re-appreciating the evidence and setting aside their acquittal.

In the case of Jaspreet Singh v. A.P Singh:- This revision petition under Sections 397/401, Cr.P.C. is directed against the judgment of learned Additional Sessions Judge, New Delhi, dated 18.2.2005, sitting as a Court of appeal, thereby dismissing the appeal filed by the petitioner herein against his conviction of sentence.

The petitioner herein was prosecuted by the DRI for the offence punishable under Sections 132/135(1) (a) of the Customs Act (for short the Act) and after trial was convicted for the said offences and sentenced to 6 months rigorous imprisonment and fine of Rs. 1000/- for the offence punishable under Section 132 of the Act or in default of payment of fine to undergo one and a half month's simple imprisonment. The petitioner was further sentenced to 3 years rigorous imprisonment and a fine of Rs.1000/- or in default of payment of fine to further undergo simple imprisonment of one and a half months. Aggrieved by his conviction and sentence the appellant preferred an appeal but without success, the learned appellate Court upholding the conviction as well as the sentence. Even the plea for reduction/modification of sentence did not find favour with the appellate Court.

Though in the body of the revision petition, the petitioner sought to assail both conviction and sentence as illegal and unwarranted, but during the course of hearing of the petition, Mr. Mehta learned Counsel for the petitioner stated at the Bar that he did not wish to press the grounds on which conviction of the petitioner has been challenged. Accordingly, he confined his submissions only so far as it relates to the quantum of sentence as awarded to the petitioner by the learned trial Court and upheld by the appellate Court.

In the case of Lalsai Khunte v. Nirmal Sinha and Ors the Supreme Court of India has observed that: - The convict had earned a remission and the period of imprisonment reduced by the period of remission would have had the effect of removing disqualification as the period of actual imprisonment would have been reduced to a period of less than two years. The Constitution Bench held that the remission of sentence under Section 401 of the Criminal Procedure Code (old) and his release from jail before two years of actual imprisonment would not reduce the sentence to one of a period of less than two years and save him from incurring the disqualification.

An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and free the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The Page 1084 power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court.

In the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors. The Supreme Court observed that the Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Session Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "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 regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

Bibliography

Books Referred

K.N. Candrasekharan Pillai (rev.), R.V. Kelkar, Lectures on Criminal Procedure, 4th ed. 2006, Eastern Book Company, Lucknow.

P. Sarkar and P.M. Bakshi (rev.), S.C. Sarkar, The Law of Criminal Procedure, 7th ed. 1996, rep. 2001, India Law House, New Delhi.

Y.V.Chandrachud (rev.), Ratanlal and Dhirajlal, The Code of Criminal Procedure, 16th ed. 2002, rep. 2003, Wadhwa & Co. Nagpur, New Delhi.



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