Shri S.A. Ravi vs State

A.P. Lavande, J.—Heard Mr. Rama Singh, learned Counsel for the Petitioner and Mr. Joseph Vaz Special Public Prosecutor for the Respondent.

Rule. By consent heard forthwith.

By this Criminal Writ Petition the Petitioner challenges the judgment and order dated 5.4.2010 passed by the Chief Judicial Magistrate, Margao in Criminal Case No. 23/2010/A and by J.M.F.C., Vasco da Gama in Criminal Case No. 64/S/2001/B.

The Petitioner was charged for having committed offences under Sections 420, 467, 468, 471 and 120 (B) of I.P.C. and was sentenced to undergo 4years R.I., 2 years R.I., 2 years R.I., 1 year R.I. respectively. The Petitioner/accused had pleaded guilty to the charge.

The learned Chief Judicial Magistrate ordered the sentences to run consecutively and further ordered the period of detention to be set off in terms of Section 428 Code of Criminal Procedure

Aggrieved by the sentences imposed on the Petitioner, the Petitioner preferred revision application before the Sessions Court.

On behalf of the Respondents an objection was taken that against the order of sentence Revision application would not lie and the appropriate remedy was to file an appeal. The same was negated by the learned Addl. Sessions Judge, Margao and by impugned judgment dated 12.11.2010 the learned Addl. Sessions Judge partly allowed the Revision Application confirming the sentence imposed by the learned Chief Judicial Magistrate, Margao except that he set aside the order of one year''s rigorous imprisonment for the offence punishable u/s 471 I.P.C. The learned Addl. Sessions Judge further directed that the period of 4 years, 4 months and 16 days be set off against his total sentence of 8 years and 6 months.

On behalf of Respondent the objection taken before the Addl. Sessions Judge was reiterated and it was submitted by Mr. Vaz, learned Special Public Prosecutor that the appropriate remedy for the Petitioner to challenge the sentence on the ground that they were excessive was to file appeal u/s 375 of Code of Criminal Procedure

Mr. Rama Singh, learned Counsel for the Petitioner submits that notwithstanding the remedy of appeal u/s 375 of Cr.P.C., the Petitioner was entitled to file revision application before the Sessions Judge, since the legality of the sentences imposed was challenged on the ground that it was excessive.

I find merit in the submission of the learned Special Public Prosecutor and unable to accept the submission made on behalf of the Petitioner. Section 375 of Code of Criminal Procedure reads thus:

Section 375: Notwithstanding anything contained in Section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal.

(a) If the conviction is by a High Court; or (b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence.

On a plain reading of Section 375 Code of Criminal Procedure it is clear that when the accused pleads guilty before a Magistrate, although he cannot challenge the conviction, he is entitled to challenge the sentence/sentences imposed on him on the ground that it/they are excessive. It is also well settled that where the remedy of appeal is available, a party is not entitled to seek remedy of revision.

This being the position, I am of the considered opinion that the findings given by the Addl. Sessions Judge that revision was maintainable is patently illegal and, therefore, the impugned judgment deserves to be set aside.

In view of the above discussion, the impugned judgment and order dated 12.11.2010 passed by the Addl. Sessions Judge in Criminal Revision Application No. 35/2010 is quashed and set aside. Needless to mention that the Petitioner would be at liberty to avail appropriate remedy against the order passed by the learned Chief Judicial Magistrate imposing sentences on him for different offences.

Writ petition stands disposed of in the aforesaid terms.