Duni Chand, Member Panchayat and ors. vs Savitri Devi

B.S. Yadav, J.

The brief facts, leading to this petition are that the present petitioners were prosecuted under section 500 of the Indian Penal Code on a Criminal complaint filed by the present respondent Savitri Devi. The learned Judicial Magistrate I Class, Karnal who tried the case, found the petitioners guilty and convicted them for the above offence but released them under section 3 of the Probation of Offenders Act, 1958 (No. 20 of 1958) after admonishing them.

Savitri Devi filed revision in the Court of the learned Sessions Judge, Karnal who treated it as an appeal and ordered each of the petitioners to pay Rs. 500/ as compensation to Savitri Devi for the loss or injury caused to her reputation. He also ordered the petitioners to pay Rs. 100/ each as costs of the proceedings to her. Feeling aggrieved, the petitioners have filed the present revision petition.

The learned counsel for the petitioners argued that the learned Sessions Judge was not competent to treat the revision filed before him, as an appeal. In support of his arguments, he has cited The State v. Raghbir Singh, 1971 PLR 771. In that case, the accused, after conviction had been accorded the benefit of sections 3 and 4 of the Probation of Offenders Act by the trial Court. The State did not file any appeal, though section 11(2) of the said Act gave a right of appeal. State filed a revision petition in the Sessions Court for the enhancement of the sentence of the accused. The learned Sessions Judge recommended the case to this Court for enhancement of sentence. While disposing of the revision petition, it was remarked :

"It is undisputed that the revisional jurisdictional under section 439, Criminal Procedure Code, is discretionary. The petitioning State which had a statutory right and remedy by way of the appeal had not exercised the same. On general principles and also on the specific provisions of section 439(5), a party who has a right of appeal cannot be allowed to have resort to revision proceedings. I am hence disinclined to interfere at the instance of the State in the present case and would consequently decline the reference."

It is to be noted that the above observations were made in relation to section 439(5) of the Code of Criminal Procedure, 1898 (Act 5 of 1898). That subsection read as follows;

"439(5). Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who would have appealed."

However, the corresponding provision of the new Code of Criminal Procedure, 1976 has been incorporated in section 401 and the provisions relevant to this judgment are subsections (4) and (5) which read as follows :

"401. (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 thereof and that it is necessary in the interest 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."

In the (old) Code, there was no provision like subsection (5) of section 401. Therefore, under the (new) Code, if a revision has been filed erroneous belief that no appeal lies thereto, such revision can be treated an appeal if it is considered necessary in the interests of justice to do so. It was not disputed by the learned counsel for the petitioner that though in subsection (5), the words "High Court" have been used'' but in view of section 399, that power can be exercised by the Sessions Court also.

In the present case, it was urged on behalf of complainant before the Sessions Judge that the revision petition had been filed under the erroneous belief that no appeal lay against the impugned order of the learned trial Court and therefore, the revision should be treated as an appeal in view of section 401(5) of the (new) Code. In the interests of justice, the learned Sessions Judge treated the revision petition as an appeal. The learned counsel for the petitioner could not point out any defect in the exercise of the jurisdiction by the learned Sessions Judge.

The learned counsel for the petitioner tried to argue that no offence was committed by the petitioners. It is to be noted that the petitioners did not challenge their conviction by filing an appeal before the learned Sessions Judge. In the instant revision, of course, they have challenged the order of the conviction passed by the learned trial Court. I am of the opinion since that order was not challenged in proper forum, it cannot now be challenged. Otherwise also, there are certain limitation on a Court exercising revisional powers. In revision the evidence cannot be appreciated again. In State of Orissa v. Nakula Sahu and others, AIR 1979 SC 663 it was remarked as follows :

"So far as the first point as concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Sec 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose, 1973(4) SCC 10: (ACR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram, 1973(2) SCC 586 : (AIR 1973 SC 2145). In the latter case viz., Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of S. 435 of the Code of Criminal Procedure, 1898 which empowered is to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior Court situate within the limits of its jurisdiction and as to inferior Court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a Court of appeal under S. 423 of the Code the High Court is not expected to act under S. 435 or S. 439 as if it is hearing an appeal."

The learned counsel for the petitioners has failed to point out that there is any glaring defect in the approach of the learned Sessions Judge or that there was any manifest error on any point of law which has resulted in flagrant miscarriage of justice. Therefore, the merits of the case cannot be gone into at this stage.

For the foregoing reasons, I do not, find any force in the present revision petition and the same is hereby dismissed.