A. Jogi Naidu vs Koyalada Venkataramana and Others

The Criminal Revision case is at the instance of the de facto complainant in Sessions Case No. 33 of 1983 on the file of the I Additional Sessions Judge, Visakhapatnam to enhance the sentence awarded to the accused, charge sheeted under Ss. 148, 324, 326 and 307, I.P.C. The transfer criminal miscellaneous petition is for transfer of Criminal Appeals 182 and 183 of 1983 on the file of the Principle Sessions Judge, Visakhapatnam to this court to be tried along with Crl.R.C. No. 520/84. The accused filed appeals as against the convictions and sentences and the petitioner seeks to have those appeals transferred.

The learned counsel for the respondents accused took a preliminary objection as to the maintainability of the criminal revision case, as the petitioner could have sought the remedy before the Principal Sessions Judge and by this process of seeking for transfer of Criminal Appeals, the accused are deprived of the right of appeal before the Sessions Court and a revision thereon to the High Court. The learned counsel for the petitioner seeking to refute this contention, stated that the petitioner has a choice either to file a petition before the Sessions Court or the High Court by way of revision and this choice cannot be fettered and, therefore, the question of depriving the right of the accused does not arise and by transfer of the appeals the accused are facilitated to have consideration of the appeal, on both facts and law, by the superior forum viz, High Court.

In Puvvula Abbulu Vs. The State Station House Officer, Law and Order, , the Division Bench of this Court held that choice is conferred on a person to move either the High Court or the Sessions Judge under S. 397, Cr.P.C. In the event of filing revision before the Sessions Judge, the recourse to revision before the High Court is precluded if the Sessions Judge rejects the revision application. To this extent, there is a radical departure from the predecessor provisions of Cr.P.C. The Division Bench held as follows at Page 141 :-

"The effect of these two provisions is that, while a person has the choice to move either the High Court or the Sessions Judge under S. 297 if he chooses to go before the Sessions Judge, he cannot thereafter go before the High Court even if the Sessions Judge rejects his revision application. This is quite unlike the position under the 1898 Code. As already pointed out by us, under the 1898 Code the dismissal by the Sessions Judge of a revision petition filed by a person did not bar that person from moving the High Court to exercise its revisional powers. Such being the situation under the present Code an insistence by a rule of practice that a person should approach the Sessions Judge and not the High Court would result in the destruction of the right of that person to move the High Court under S. 397. The rule of practice laid down by the Full Bench under the old Code is inconsistent with the scheme of the new Code. The High Court can no longer follow the rule of practice and refuse to entertain a petition under S. 397(1) on the ground that the Sessions Judge has not been moved because once the Sessions Judge is moved, the High Court''s jurisdiction will stand ousted by Ss. 397(3) and 399(3)."

In Kesavan Sivan Pillai Vs. Sreedharan Rajamohan and Others, , the Full Bench of the Kerala High Court by majority held that the revision petition is maintainable directly in the High Court and there is no necessity to follow the old practice of insisting on a party filing a revision petition before the Sessions Judge before approaching the High Court. The majority view is as follows :-

"The remedy against conflicting decisions and the resulting chaos, if one party were to resort to the Sessions Judge, and another, to move the High Court in the same proceedings, lies in an appropriate resort to the provisions of S. 402, Cr.P.C. which we have extracted earlier. Further under S. 407(1)(c), there is a wide power of transfer on the High Court where it is expedient to direct a transfer for the ends of justice, in such a case the section provides for the transfer of any particular case from one subordinate criminal court to another or for transfer of any particular case to the High Court to be tried by itself. These provisions appear sufficient to meet the ends of justice."

The learned counsel for the petitioner referred to Romesh Chandra Arora Vs. The State, , wherein the accused aggrieved by the conviction and sentence filed an appeal before the Sessions Judge. During the pendency of the appeal, the High Court being not aware of the filing of the appeal, suo motu called for the record of the proceedings of the Magistrate to satisfy itself the propriety of the sentence passed by the Magistrate and directed issue of a notice to the appellant to show cause why the sentence should not be enhanced. Later, the High Court ordered transfer of the appeal pending before the Sessions Judge to the High Court. The High Court heard both the appeal and also the rule for enhancement of the sentence. Ultimately the conviction was upheld, appeal was dismissed and sentence was enhanced. It was contended that, when an appeal was pending before the Sessions Judge, the High Court had no power to call for the record of the proceedings of the Magistrate and in the context of considering this contention, it is held as follows at page 158 (of AIR) : (at P. 181 of Cri LJ) :-

"When, however, it was brought to the notice of the High Court that an appeal was pending before the Sessions Judge of Delhi, it could order that the appeal be withdrawn to the High Court so that the appeal and the rule could be heard together. We are unable to hold that the High Court committed any illegality in adopting the course which it did."

While holding that there is no illegality in entertaining the revision particularly when it is not brought to the notice of the High Court that an appeal was pending and further there is no illegality in transferring the appeal to its file but however as to the propriety of the practice adopted in this case, the Supreme Court held as follows at page 160 (of AIR) : (at P. 182 of Cri LJ) :-

"In conclusion, we wish to add that we have considered in the present case the question if the High Court committed any illegality in passing the two orders, one on 14-6-1956, and the other on 17-8-1956. We have held that the High Court committed no illegality. Nothing said in this judgment should be taken as commending or encouraging a departure from the usual practice which, we understand, is that when an appeal is pending before an inferior court, the High Court exercises, if necessary, its powers of revision after the appeal has been disposed of. There may, however, be exceptional cases where the ends of justice require that the appeal itself be heard by the High Court to exercise its powers to revision under S. 439, Cr.P.C., of enhancing the sentence after having heard and dismissed the appeal. The present case was an exceptional case of that nature and we do not think that the procedure adopted by the High Court was in any way illegal or prejudicial to the appellant. We find no good grounds for interference by this Court."

In the case before the Supreme Court, originally the revision was taken up suo motu without the knowledge of the pendency of the appeal before the Sessions Court. After coming to know of the pendency of the appeal, subsequent to entertaining the revision, the appeal was transferred. At the stage of transfer itself, no objection was taken and it is only after the appeal was taken on file along with the revision petition and in the course of hearing, this objection was taken. The facts and circumstances in the instant case are different. The revision is filed at the instance of the de facto complainant and the appeals are filed by the accused before the Sessions Court. Now we are at the stage of an application filed by the de facto complainant seeking transfer of the appeals from the Sessions Court to the High Court. This is a piquant situation. Strictly considering from the legalistic point of view, no objection can be taken to the course adopted by the petitioner for seeking remedy before this Court by way of revision and transfer, as he has an unfettered choice to move either the Sessions Court or the High Court and he is not obligated to tailor to the convenience or lubrication of the right and remedies of the accused and the revision to the High Court cannot be considered as unsustainable. Considering from the perspective of the rights and disabilities of the accused by this process, the accused are deprived of another remedy by way of revision to the High Court in the event of dismissing the appeals by the Sessions Court. The remedy by revision to the High Court is lost if the appeal is heard directly by the High Court. But however in this process the advantage to the accused also should not be overlooked. By this process the accused are facilitated to have their appeals heard by the superior forum i.e. High Court. In the thick of parallel legal remedies formulated hereinabove and in the absence of converging this parallel trend and reconciliation we should necessarily have recourse to the salutary practice to render effective and substantial justice. We have sufficient feeding by the Supreme Court in this direction. The Supreme Court having realised the delicate situation in this rough weather observed that the hearing of revision should await till the disposal of the appeal before the Sessions Court and the hearing of revision and appeal together in the High Court itself is an exception to the procedure. These observations from the Supreme Court afford a great relief in the present impasse of divergent postures and remedies pursued and adhered to by the aggrieved persons. As observed by the Supreme Court the hearing of the appeal and revision by the High Court should be considered as an exception. I cannot consider the situation in the present case as exceptional one and following the observations of the Supreme Court, the criminal revision case shall be kept pending till the disposal of appeals by the Sessions Court to enable the complainant to pursue the same after the appeals are disposed of by the Sessions Court.

Transfer criminal miscellaneous petition dismissed.

Petition dismissed.