Supreme Court: Revision against an order u/s 319 CrPC rejecting application for summoning of additional accused is maintainable.

 In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 of Code of Criminal Procedure and not by invoking inherent jurisdiction of the High Court under Section 482 of Code of Criminal Procedure Maybe, in order to circumvent the provisions contained in Sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 of Code of Criminal Procedure. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Code of Criminal Procedure, the High Court before passing the order would have given notice and opportunity of hearing to the Appellants. {Para 22}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 814 of 2013 

Decided On: 01.07.2013

Mohit and Ors. Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and M.Y. Eqbal, JJ.

Author: M.Y. Eqbal, J.

Citation: MANU/SC/0633/2013 : AIR 2013 SC 2248.

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Allahabad HC: Revisional court can not convert finding of acquittal into conviction

The scope of criminal revision is very limited as observed by the Hon'ble Apex Court in catena of judgments. Revisional Jurisdiction can be invoked where the decision under challenge is grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Another well accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. The revisional court has simply to confine to the legality and propriety of the findings and as to whether the subordinate court acted within it's jurisdiction. A revisional court has no jurisdiction to set aside the findings of facts recorded by the Magistrate and impose and substitute its own findings. Sections 397 to 401 Cr.P.C. confer only limited power on revisional court to the extent of satisfying the legality, propriety or regularity of the proceedings or orders of the lower court and not to act like appellate court for other purposes including the recording of new findings of fact on fresh appraisal of evidence. The High Court in its revisional powers could not have interfered with the findings of facts recorded by the lower court only because the High Court could have arrived at a different or another conclusion. Findings of acquittal recorded by subordinate court cannot be converted into conviction by High Court in exercise of revisional jurisdiction u/s. 401(3) Cr.P.C. {Para 6}

 IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

Criminal Revision Defective No. 8 of 2010

Decided On: 22.09.2022

Ambika Singh Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

Saurabh Lavania, J.

Citation: MANU/UP/3201/2022.

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What are basic principles for exercise of revisional jurisdiction by high court at the instance of a private complainant?

The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, 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 the offence which is invalid under the law. {Para 9}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2420 of 2009 

Decided On: 17.12.2009

Sheetala Prasad and Ors. Vs. Sri Kant and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and J.M. Panchal, JJ.

Author: J.M. Panchal, J.

Citation:  AIR 2010 SUPREME COURT 1140, 2010 (2) SCC 190,MANU/SC/1915/2009.

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Supreme Court: Criminal revision is not maintainable against order of police custody remand

Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section 309 Cr.P.C. confers power upon a Court to remand all accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye's case (supra), it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by Sub-section (2) of Section 397 Cr.P.C., a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day. {Para 13}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 575-576 of 2004 

Decided On: 05.05.2004

State Rep. by Inspector of Police and Ors. Vs. N.M.T. Joy Immaculate

Hon'ble Judges/Coram:

S. Rajendra Babu, C.J., A.R. Lakshmanan and G.P. Mathur, JJ.

Authored By : G.P. Mathur, A.R. Lakshmanan

Citation: AIR 2004 SC 2282,MANU/SC/0448/2004.

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Supreme court has disapproved revisional court exercising original powers of trial court

The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution discloses prima facie case against the accused or not. In this connection, we may usefully refer to the observations of this Court in Munna Devi v. State of Rajasthan and Anr.   MANU/SC/0715/2001 : (2001) 9 SCC 631

We find substance in the submission made on behalf of the Appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. {Para 13}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 893 of 2005

Decided On: 02.12.2011

Ashish Chadha Vs. Asha Kumari and Ors.

Hon'ble Judges/Coram:

Swatanter Kumar and Ranjana Prakash Desai, JJ.

Author: Ranjana Prakash Desai, J.

Citation: MANU/SC/1456/2011,AIR 2012 SC 431.

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Bombay HC: Second revision filed by a party who is aggrieved by order of Session judge in revision is maintainable

A plain reading and construction of these two provisions shows that the Legislature intended that an aggrieved person choosing the forum before the Sessions Judge shall be bound by his verdict which shall be final so far he is concerned and he shall be precluded from filing another revision before the High Court and by necessary implication it further means that so far as unsuccessful or aggrieved person by the order the Sessions Judge is concerned, the decision is not conclusive or final for him and a remedy of a revision to the High Court is not barred. If the Legislature really intended to make no distinction between an unsuccessful or successful party before the Sessions Judge in revision and intended that there shall be no further or second revision in any event irrespective of who moved the Sessions Judge and who wins and who loses before the Sessions Judge, the Legislature could have enacted that if an application for revision has been made by any party to the Sessions Judge or to the High Court, no further application shall be entertained by either of them.

19. We are, therefore, of the view that a revision to the High Court would be tenable at the instance of a party who is unsuccessful before the Sessions Judge, or who is aggrieved by his order. In other words, a concurrent finding of the Sessions Judge and of the Courts below becomes final, but when the Sessions Judge reverses the order of the Court below in revision the defeated party is not precluded from moving the High Court. The consensus of judicial opinion as can be seen supports only this view.

20. We, therefore, hold that these two criminal applications filed here by the persons who were non-applicants before the Sessions Judge in the Criminal Revisions and who are aggrieved by the decisions of the Sessions Judge are tenable and competent. There is no need to convert these petitions into applications under Section 482 of the Code. These criminal revisions shall be dealt with and disposed of by the learned single Judge according to law.

 IN THE HIGH COURT OF BOMBAY

Criminal Revn, Appl. Nos. 120 of 1978 and 158 of 1977

Decided On: 14.04.1980

Inayatullah Rizwi Vs. Rahimatullah and Ors.

Hon'ble Judges/Coram:

P.G. Palshikar and M.R. Waikar, JJ.

Author: M.R. Waikar, J.

Citation: MANU/MH/0015/1980,1981 Cri L J 1398 (Bom) (DB).

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Supreme Court : The court can entertain criminal revision even after death of convicted person

 It appears to us that though in Pranab Kumar's Case   MANU/SC/0055/1958 : (1959) Supp. 1 S.C.R. 63 this Court was directly concerned with the effect of a convicted person's death on a pending revisional application, the judgment also expresses the view that a revisional application could be entertained even after the death of the convicted person. On this authority and also for the reasons discussed earlier, we have come to the conclusion that the High Court was right in holding that the application for revision could be entertained under s. 439 of the Code of Criminal Procedure. {Para 13}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 55 of 1961

Decided On: 19.03.1962

The State of Kerala Vs. Narayani Amma Kamala Devi

Hon'ble Judges/Coram:

J.L. Kapur, K.C. Das Gupta and Raghubar Dayal, JJ.

Author: K.C. Das Gupta, J.

Citation: MANU/SC/0103/1962 : AIR1962SC1530.

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Supreme Court: When the earlier criminal revision has been dismissed as not pressed, the accused can not take another proceeding for the grant of the same relief

We are of the opinion that when the earlier revision petition filed under Section 397 of the Code had been dismissed as not pressed, the accused-respondents could not be allowed to invoke the inherent powers of the High Court under Section 482 of the Code for the grant of the same relief. {Para 7}

 IN THE SUPREME COURT OF INDIA

Appeal (crl.) 964 of 2001

Decided On: 19.09.2001

Rajinder Prasad Vs. Bashir and Ors.

Hon'ble Judges/Coram:

M.B. Shah and R.P. Sethi, JJ.

Coram: R.P. Sethi, J.

Citation:  MANU/SC/0574/2001,2002 Cri L J 90 (SC).

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What procedure Session Judge should follow if petitioner not presses revision application?

The petitioner prays that your Lordship may be graciously pleased to consider the facts stated in the petition and direct to Sessions Judge to allow the petitioner to withdraw the Criminal Revision No. 107 of 1986 and further direct the Sub-divisional Judicial Magistrate, Dhenkanal to issue summons to the accused persons and to complete the trial expeditiously.

5. It is argued by learned counsel for the petitioner that when the petitioner who had filed the revision did not like to proceed with the said case, the Sessions Judge should not have insisted upon hearing and disposal of the case on merit. The aforesaid legal and factual concept of the petitioner appears to be erroneous inasmuch as a party to a proceeding has no right of preferring a revision. According to the provision Under Section 397 read with Section 401 of the Code the Court of Session or the High Court, as the case may be, exercising the concurrent jurisdiction of superintendence over the functioning of the criminal Courts in subordinate Judiciary may examine any order passed by any criminal Court to find out if such order is illegal, unjust, improper or perverse or affecting the administration of justice and to pass appropriate order by exercising the revisional power. However, in view of the provisions in Section 397(2) of the Code interlocutory order are made not amenable to revisional jurisdiction. Power of revision can be exercised suo motu or on the basis of information received or application made by any of the parties or person connected therewith. Once the revision is admitted for hearing, it should not be disposed of without examining legality and correctness of such order. For that reason only, a Criminal Revision is debarred from being dismissed for default to the petitioner. Thus it leads to the logical conclusion that a revision once admitted to examine correctness of an impugned order cannot be dismissed as not pressed. Under such circumstance, the Sessions Judge was right in his approach in rejecting the memo and disposing of the revision on merit.

 IN THE HIGH COURT OF ORISSA

Criminal Misc. Case No. 2363 of 1992

Decided On: 01.05.1998

Sanat Kumar Patnaik Vs. Binoy Kumar Nayak and Ors.

Hon'ble Judges/Coram:

P.K. Tripathy, J.

Citation: MANU/OR/0325/1998,1999 Cri L J 351 (Orissa).

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Supreme Court: Amicus curiae to be provided to the revisionist/appellant accused even if the absence of his counsel is deliberate.

That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ? {Para 4}

7. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.

22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.

23. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 546 of 2011 

Decided On: 24.02.2011

Md. Sukur Ali Vs. State of Assam

Hon'ble Judges/Coram:

Markandey Katju and Gyan Sudha Misra, JJ.

Citation: 2011 Cri L J 1960 (SC),  MANU/SC/0155/2011.

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Whether Assistant session judge can decide revision alongwith delay condonation application?

The expression "in respect of" is of, wider connotation than the word "in". Section 400, therefore, includes within its scope not only references and revisions (covered by Chap. XXX), but all other incidental and ancillary matter also. The application Under Section 5 of the Indian Limitation Act filed along with the revision in question was undoubtedly an ancillary matter and it was, therefore, open to the Sessions Judge to transfer that application and the defective revision to the Court of Sri K. P. Asthana for disposal. If, therefore, Sri K. P. Asthana decided that application and admitted the revision, he cannot be said to have done anything wrong. He had full jurisdiction to, pass the order which he passed. This revision is misconceived and must, therefore fail. Accordingly I reject it.

 IN THE HIGH COURT OF ALLAHABAD

Decided On: 01.03.1978

Ram Newaz and Ors. Vs. Chabi Nandan Pandey and Ors.

Hon'ble Judges/Coram:

V.N. Varma, J.

Citation: 1978 Cri. L. J. 632(All), MANU/UP/0392/1978.

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Whether High court should entertain time barred revision after condonation of delay?

It, however, appears that the respondents contended that the revision petition was barred by limitation. Even this contention is founded on a very technical ground that even though the revision petition was filed very much in time the requisite power of attorney of the learned advocate on behalf of the petition was not legally complete and when it was re-submitted the limitation had expired. Without going into the nicety of this too technical contention, we may notice that Section 397 of the CrPC enables the High Court to exercise power of revision suo motu and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time barred thereby perpetuating the illegality and miscarriage of justice. The question whether a discharge order is interlocutory or otherwise need not detain us because it is settled by a decision of this Court that the discharge order terminates the proceedings and, therefore it is revisable under Section 397(1), Cr. PC and -Section 397(1) in terms confers power of suo motu revision on the High Court, and if the High Court exercises suo motu revision power the same cannot be denied on the ground that there is some limitation prescribed for the exercise of the power because none such is prescribed. {Para 5}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 136 of 1981

Decided On: 11.02.1981

Municipal Corporation of Delhi Vs. Girdharilal Sapuru and Ors.

Hon'ble Judges/Coram:

A.N. Sen and D.A. Desai, JJ.

Author: D.A. Desai, J.

Citation: MANU/SC/0189/1981,AIR 1981 SC 1169.

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Orissa HC: Second revision against fresh order passed by lower court after remand by revisional court maintainable.

It is not understood as to how the Sessions Judge could apply this provision to hold that the revision before the Sessions Judge was barred Under Section 397(3). Cr. P.C. The earlier Criminal Revision which had been filed before the Higli Court had been disposed of directing the trial Court to re-consider the matter and thereafter the trial Court after reconsideration passed a fresh order rejecting the application for recalling the witness. Against the said order, revision was filed before the Sessions Judge. The question as to whether such a revision before the Sessions Judge was maintainable in view of the bar contained in Section 397(2), Cr. P.C. is another matter which need not detain us. The fact remains that the Sessions Judge has not considered the question of maintainability of the revision on the ground of bar Under Section 397(2), but Under Section 397(3), Cr. P.C. Law is well settled that Section 397(3), Cr. P.C. bars a second revision at the instance of the same petitioner. In other words, if an order of the trial Court is challenged before the Sessions Judge or the High Court in revision and such revision is dismissed on merit, a further revision cannot be filed before the High Court or the Sessions Judge, as the case may be, by the party who had unsuccessfully filed the first revision. This does not mean that where a revision has been disposed of with a direction for reconsideration and fresh order is passed by the trial Court on reconsideration, the same cannot be subject to another revision.

 IN THE HIGH COURT OF ORISSA

Original Jurisdiction Case No. 9288 of 1999

Decided On: 06.08.1999

Indrajeet Roy Vs. Republic of India

Hon'ble Judges/Coram:

P.K. Misra and R.K. Patra, JJ.

Authored By : P.K. Misra, R.K. Patra

Citation: 1999 CRLJ 4727 (Orissa),MANU/OR/0173/1999.

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What is the duty of appellate or revisional court if it is setting aside findings of facts recorded by trial court?

Learned counsel for the appellant submitted before us, and with justification, that the judgment and order of, the High Court does not disclose application of mind to the evidence on record, or to the findings recorded by the Trial Court, which were sought to be set aside by the impugned judgment and order. The finding of the High Court is as vague as it can be and it is not possible to cull out the reasons which persuaded the learned Judge to set aside the findings recorded by the Trial Court. We have earlier quoted the relevant part of the judgment which justifies the criticism of the learned counsel. It is well settled that the Appellate or Revisional Court while setting aside the findings recorded by the Court below must notice those findings, and if the Appellate or Revisional Court comes to the conclusion that the findings recorded by the Trial Court are untenable, record its reasons for coming to the said conclusion. Where the findings are findings of fact it must discuss the evidence on record which justify the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the Trial Court are sought to be set aside by an Appellate or Revisional Court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the Trial Court, the party aggrieved is entitled to ask for setting aside of such a judgment.

{Para 11}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1059 of 2003 

Decided On: 26.08.2003

Deb Narayan Halder Vs. Anushree Halder

Hon'ble Judges/Coram:

N. Santosh Hegde and B.P. Singh, JJ.

Author: B.P. Singh, J.

Citation:  AIR 2003 SC 3174,MANU/SC/0629/2003.

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Supreme Court disapproved Exercise of original powers of trial court by revisional court

The revision power under the code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. {Para 3}

 IN THE SUPREME COURT OF INDIA

Appeal (crl.) 1138 of 2001

Decided On: 06.11.2001

Munna Devi Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

M.B. Shah and R.P. Sethi, JJ.

Author: R.P. Sethi, J.

Citation: MANU/SC/0715/2001, (2001) 9 SCC 631

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Supreme Court: Revision is not maintainable against orders summoning witnesses adjourning cases, passing orders for bail, calling for reports

Thus, for instance, 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 trial cannot be said to be interlocutory order so as to be outside the purview of the re-visional jurisdiction of the High Court.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 124 of 1977

Decided On: 29.07.1977

Amar Nath and Ors. Vs. State of Haryana and Ors.

Hon'ble Judges/Coram:

N.L. Untwalia and S. Murtaza Fazal Ali, JJ.

Author: S. Murtaza Fazal Ali, J.

Citation: AIR 1977 SC 2185,MANU/SC/0068/1977.

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Under which circumstance irregularity in procedure will not amount to failure of justice?

 What does the expression 'failure of justice' mean? In Shamnsaheb M. Multani v. State of Karnataka   MANU/SC/0047/2001 : (2001) 2 SCC 577 it was held that the expression 'failure of justice' is too pliable or facile an expression which could be fitted in any situation. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. {Para 71}

72. This decision was followed in State of M.P. v. Bhooraji   MANU/SC/0481/2001 : (2001) 7 SCC 679 and also in Rattiram v. State of M.P.   MANU/SC/0125/2012 : (2012) 4 SCC 516 In the latter decision, it was held that the expression 'failure of justice' must be given its due significance otherwise every procedural lapse or interdict could be interpreted to result in a failure of justice making the criminal justice delivery system completely illusory. Rattiram dealt with non-compliance with Section 193 of the Code of Criminal Procedure and it was held that this did not result in a failure of justice. It was held in paragraphs 65 and 66 of the Report as follows:

We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the legislature deliberately obliterated certain rights conferred on the Accused at the committal stage under the new Code. The intendment of the legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

 An allegation of 'failure of justice' is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of justice or a violation of law or an irregularity in procedure-it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjournment wrongly declined etc. To conclude, therefore, Section 19(3)(c) of the PC Act must be given a very restricted interpretation and we cannot accept the over-broad interpretation canvassed by learned Counsel for the Appellants. {Para 77}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

Read full Judgement here: Click here.

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Whether the appellate or revisional court should reverse any finding on account of any irregularity in sanction for prosecution if accused has not raised objection in that respect in the trial court?

 Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as if the Accused can, after an unreasonable delay, raise an issue about the sanction; but if that Accused does so, the court may not decide that issue both at the appellate stage as well as for the purposes of stay of the proceedings. {Para 66}

67. In Central Bureau of Investigation v. V.K. Sehgal   MANU/SC/0650/1999 : (1999) 8 SCC 501 it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the Accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. It was held in paragraphs 10 and 11 of the Report as under:

A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the Accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an Accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court......

In a case where the Accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1137 of 2017

Decided On: 13.07.2017

Girish Kumar Suneja Vs. C.B.I.

Hon'ble Judges/Coram:

Madan B. Lokur, Kurian Joseph and A.K. Sikri, JJ.

Author: Madan B. Lokur, J.

Citation: AIR 2017 SC 3620,MANU/SC/0829/2017.

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What are powers and limitation of revisional court in criminal revision?

Before examining the merits of the present case, we must advert to the discussion as to the ambit and scope of the power which the courts including the High Court can exercise under Section 397 and Section 482 of the Code.

Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. {Para 8}

9. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Code of Criminal Procedure.

Right from the case of State of West Bengal and Ors. v. Swapan Kumar Guha and Ors.   MANU/SC/0120/1982 : (1982) 1 SCC 561, which was reiterated with approval in the case of State of Haryana and Ors. v. Bhajan Lal and Ors.   MANU/SC/0115/1992 : 1992 Supp. (1) SCC 335, the courts have stated the principle that if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. It is further stated that the legal position appears to be that if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to have been committed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Whether an offence has been disclosed or not, must necessarily depend on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed in order to collect materials for proving the offence. In Bhajan Lal's case (supra), the Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of an FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.

10. The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.

Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1407 of 2012 

Decided On: 13.09.2012

Amit Kapoor Vs. Ramesh Chander and Ors.

Hon'ble Judges/Coram:

A.K. Patnaik and Swatanter Kumar, JJ.

Author: Swatanter Kumar, J.

Citation: MANU/SC/0746/2012, (2012)9 SCC 460.

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Bombay HC: FIR Won't Stand Quashed If Revision Court Sets Aside Magistrate's Order For Police Investigation Into Cognizable Offence

To equip the revisional court to exercise the discretion in a correct manner, it may be advantageous for the revisional court to ascertain whether, pursuant to the direction of the Magistrate, FIR has, in fact, been registered. Two situations are conceivable : pre and post-registration of FIR pursuant to the order by the Magistrate. {Para 125}

126. (a) If the FIR is yet not registered, an interim order passed by the revisional court, staying effect and operation of the impugned order Under Section 156(3), will have full play and the investigating agency cannot proceed to register the FIR and enter into investigation lest the order passed by the revisional court would be denuded of the meaning and content.

(b) Such an interim order before the registration of the FIR will operate with full force and vigor, irrespective of the nature of the infirmity in the impugned order which weighed with the revisional court to stay such an order.

(c) On the other hand, if the FIR has already been registered, before the revisional court passes an interim order, then the nature of the infirmity in the impugned order may become relevant.

(d) If the revisional court finds that the impugned order suffers from jurisdictional error, (of the nature referred to in Para Nos. 119, 120 and 122 above), in our considered view, the revisional court must be construed to have the power to stay further proceedings pursuant to the registration of the FIR if the matter is still at the stage of investigation.

(e) We hasten to add that while passing such an order of stay of the proceedings at the stage of investigation, the revisional Court ought to record reasons which weighed with the court to hold that there appears a jurisdictional error in passing an order Under Section 156(3) of the Code and thereupon, in terms, direct that the further proceedings be stayed.

(f) However, where the investigation culminates into lodging of the chargesheet and/or cognizance has been taken by the jurisdictional court, the interim order or final order passed by the revisional court setting aside the order passed by the Magistrate Under Section 156(3), will not have the effect of quashing the resultant prosecution.

127. We are unable to persuade ourselves to agree with the submission of Mr. Desai that the view that after FIR is registered revision is not an efficacious remedy, would render the statutory remedy of revision redundant. The order passed by the revisional Court setting aside a direction for investigation, even after registration of the FIR, cannot be said to be bereft of any utility. If such an order is passed before the completion of investigation, the investigating agency may take the same into account in determining the course the investigation shall culminate into. If such an order is passed, post lodging of the chargesheet, the jurisdictional Magistrate may have the benefit of the said order at the stage of taking cognizance or during the course of the inquiry, as envisaged by the Code. The High Court may also have due regard to the order of the revisional Court while considering the prayer for quashing the FIR and/or prosecution in exercise of writ or inherent jurisdiction.

128. The conspectus of aforesaid discussion is that in our view, the decision of the Division Bench in the case of Kailash Dattatraya Jadhav (supra), that in a case where on the basis of an order Under Sub-section (3) of Section 156 of the Code, FIR is registered, the remedy of revision under the Code, is not an efficacious remedy, lays down the correct position in law.

[O] ANSWERS

129. We are, therefore, inclined to answer question (i) in the negative. As regards question (ii), in our view, the revisional Court can interfere with an order Under Section 156(3) at the stage and to the extent indicated in paragraph 126 above. The Reference is answered accordingly.

 IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2517 of 2022, 

Decided On: 10.04.2024

Arun P. Gidh and Ors. Vs. Chandraprakash Singh and Ors.

Hon'ble Judges/Coram:

Revati Mohite Dere, N.J. Jamadar and Sharmila U. Deshmukh, JJ.

Author: N.J. Jamadar, J.

Citation:  MANU/MH/2292/2024.

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