1. The instant Criminal Miscellaneous Petition has been filed under Section 482 of the Criminal Procedure Code,1973, challenging the impugned order dated 01.08.2024, passed by the learned Sessions Judge, Chittorgarh, in Criminal Revision Petition No. 64/2024 (C.I.S. No. 66/2024). The said order dismissed the Criminal Revision Petition filed by the petitioner against the order dated 29.08.2023, passed by the learned Chief Judicial Magistrate, District Chittorgarh, in Case No. 1749/2023. The petitioner contends that the learned Trial Court has wrongfully taken cognizance against the petitioners for offences under Sections 420 and 120B of the IPC, Section 66D of the IT Act, and Sections 3/4 of the RPO, 1949.
2. The facts leading to the filing of this petition are that on 12.06.2019, during a patrol at approximately 5:30 PM, Station House Officer Shailendra Singh and his team received information about an individual standing near a cart in front of the Panchayat Samiti, engaged in online gambling through his mobile phone. Acting on this tip, Constable Pushpendra Singh, in plain clothes, approached the individual, later identified as Petitioner No. 1, and transacted for a game recharge using a marked 500 rupee note. Subsequently, the petitioner was apprehended, and upon search, several incriminating items, including mobile phones, Ids, passwords, and a significant amount of cash, were seized. An FIR No. 256/19 was registered at the Kotwali Police Station, Chittorgarh. Following the investigation, a charge sheet was filed, and the Trial Court took cognizance on 29.08.2023. Aggrieved by this, the petitioners filed a Revision Petition under Section 438 of Bharatiya Nagarik Surakasha Sanhita ,2023(herein after referred as”BNSS”), registered as No. 64/2024 (C.I.S. No. 66/2024), which was dismissed by the learned Revision Court on technical grounds of being time-barred, vide order dated 01.08.2024.
3. The Petitioner contended that the Trial Court, in taking cognizance, and subsequently, the Revision Court, in dismissing the revision petition on time-barred grounds, had both erred. The Petitioner asserted that no illegal gambling had occurred, and that the police action had been based on a misinterpretation of the nature of the mobile game, which was merely a form of entertainment. Furthermore, the Petitioner argued that the Revision Court had erred in prioritizing procedural technicalities over the merits of the case, particularly given the justification provided for the delay in filing the revision petition. Finally, the Petitioner invoked the principle of presumption of innocence, emphasizing that an innocent individual should not be subjected to punishment.
4. Heard both the counsels present for the parties and gone through the materials available on record.
5. Before delving into the merits of the present petition, it is pertinent to discuss the legal framework under which the revisional jurisdiction of the Court is invoked. Section 438 of the BNSS, 2023 (corresponding to section 397 Cr.P.C.), outlines the powers of the High Court and Sessions Court to call for records and revise orders passed by subordinate Courts. This provision plays a crucial role in ensuring that justice is not only done but is also seen to be done by correcting any legal or procedural errors that may have occurred in the lower Courts. To fully appreciate the scope and application of this Section, it is essential to reproduce it here for reference.
"438.Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction 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 the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on his own bond or bail bond pending the examination of the record.
Explanation. – All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 439.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
6. The statutory power conferred upon the High Court and Session Court under Section 438 BNSS serves the purpose of examining the legality, correctness, and propriety of orders passed by inferior Courts. This ensures that criminal procedures are strictly adhered to according to the law, preventing any deviation from legal mandates. Legality entails the correct application and interpretation of legal provisions. It is crucial that Courts do not misunderstand or ignore the law, as any misinterpretation or wrongful application can lead to significant procedural errors. Correctness involves the proper application of facts in accordance with the legal provisions. It is essential that factual determinations align with the governing laws to ensure accurate legal outcomes. Propriety addresses situations where, despite the correct application of law and facts, the resulting outcome is flawed. This could occur when the exercise of legal power is technically correct, and the facts support the decision, but the overall outcome is deemed improper, unfair, or unjust in the broader sense of justice.
For example, if a husband earning ₹100,000 per month is ordered to pay ₹2,000 as maintenance to his wife, the legal power (legality) is exercised, and the wife's eligibility (correctness) is considered, but the maintenance amount is not proper (propriety) given the husband's income The Court’s power in this context is supervisory and monitoring in nature. Its objective is to ensure that proceedings and orders adhere to the law and principles of justice, leading to the fair disposal of cases. Courts are established to uphold these objectives, ensuring justice is served through lawful processes. The mode of invoking this power can be through applications by parties, or when the Court is made aware of potential errors through publications, complaints, or letters. Upon receiving such information, the Court must satisfy itself regarding the legality, correctness, and propriety of the order in question. At this point, the Court can also exercise suo motu power to achieve the ultimate objective of justice.
7. In the instant case, the learned Sessions Judge, by abdicating his responsibility to delve into the merits of the petitioner’s contentions, has effectively rendered the provisions of Section 438 BNSS nugatory. The High Court, as the ultimate guardian cannot countenance such a cavalier approach. It is incumbent upon the Court to ensure that the principles of justice are upheld and that the rights of the citizens are protected.
8. The language of Section 438 of the BNSS, 2023, unequivocally employs the term “may,” thereby vesting a discretionary power in the Sessions Judge or the High Court to call for and examine the records of any proceeding before an inferior criminal Court within their jurisdiction. This discretionary authority, often termed as revisional jurisdiction, is exercised to satisfy the Court as to the correctness, legality, or propriety of any finding, sentence, or order passed by such inferior Court. It is imperative to understand that the usage of the term “may” signifies that this power is not obligatory but is to be exercised judiciously as per the requirements of justice. The discretionary nature of this power does not diminish its importance; rather, it underscores the need for a careful and judicious approach in its exercise.
9. The revisional jurisdiction is supervisory or monitoring in nature, enabling the higher judiciary to ensure that the subordinate Courts act within the bounds of law and justice. The essence of this provision is to prevent a miscarriage of justice by rectifying errors, irregularities, or illegalities that might have crept into the judicial process at the subordinate level. This supervisory role is pivotal, as it provides a mechanism for correcting judicial missteps, thus upholding the integrity of the judicial process.
10. In exercising this power, the Court is guided by the principle of ubi jus ibi remedium – where there is a right, there must be a remedy. This maxim underscores the Court’s duty to provide a remedy whenever there is a breach of legal rights. The revisional power under Section 438 BNSS embodies this principle, ensuring that justice is not thwarted by technicalities or procedural lapses.
11. The Court’s discretion to invoke this power is absolute in the sense that it can be exercised at any time when it deems necessary to ensure that the ends of justice are met. However, this discretion must be exercised in a manner that is just, equitable, and in accordance with the principles of natural justice. The power to call for records and revise orders is a potent tool in the hands of the judiciary to maintain the sanctity of legal proceedings and to prevent the abuse of process.
12. Furthermore, while the provision grants discretion, it implicitly demands a thorough application of judicial mind to the facts and circumstances of each case. It is not a mechanical or routine exercise but one that requires a detailed and nuanced understanding of the case to ascertain whether the subordinate Court’s order stands up to the scrutiny of legality, correctness, and propriety.
13. The judicial discretion conferred by Section 438 BNSS thus serves a dual purpose: it acts as a safeguard against judicial errors and as a corrective measure to uphold the rule of law. The revisional Court, in exercising this discretion, must therefore strike a delicate balance between correcting errors and respecting the finality of judicial proceedings, thereby ensuring that justice is served in its truest sense. The discretionary power under Section 438 BNSS is an indispensable aspect of the criminal justice system, enabling higher Courts to oversee and rectify judicial processes, thereby reinforcing the faith of the public in the legal system. The term “may” as used in the provision signifies a considered and judicious application of this power, underscoring the judiciary’s role as the sentinel of justice.
14. A grave lacuna is evident in the impugned order. The learned Sessions Judge, instead of delving into the merits of the revision petition and adjudicating the weighty contentions raised by the petitioner, inexplicably confined his scrutiny to the narrow confines of the delay condonation application. This approach, characterized by an undue emphasis on procedural technicalities, constitutes a grave dereliction of the judicial duty. “Nulla poena sine lege” – no punishment without law – demands that the Courts meticulously examine the substantive issues before arriving at any conclusion. The learned Sessions Judge, by prematurely dismissing the revision petition on a procedural ground, effectively denied the petitioner a meaningful opportunity to challenge the legality and propriety of the impugned order of cognizance. This approach is not only antithetical to the principles of natural justice but also contravenes the very essence of the judicial process, which mandates a thorough and impartial consideration of all relevant aspects of the case.
15. When a party approaches the Court belatedly, the Court must determine whether the delay justifies allowing a wrong order to stand. The mere passage of time should not permit a wrongful order to remain uncorrected. The Court has the responsibility to ensure that justice is not compromised due to procedural delays. While the Court may impose costs or monetary penalties on parties for the inconvenience caused by delays, it must ensure that a wrong order is not perpetuated merely because of the delay in challenging it. The fundamental duty of the Court is to correct such errors to uphold the integrity of the judicial process.
16. To address the issue of delay in filing the revision petition, it is pertinent to reproduce Section 5 of the Limitation Act, 1963, which governs the extension of the prescribed period in certain cases by allowing condonation of delay upon sufficient cause being shown.
"Section 5 of the Limitation Act, 1963, provides the legal framework for extending the prescribed period for any appeal or application, barring suits, if the applicant satisfies the Court that there was sufficient cause for the delay. The text of Section 5 is reproduced below for reference:
5. Extension of prescribed period in certain cases.—
Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.—The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
This provision empowers the Courts to condone delays in the interest of justice, ensuring that technical lapses do not impede the administration of justice. In the present case, the petitioner’s justification for the delay should have been meticulously examined under this provision.
In this context, it is pertinent to refer to the principles laid down by the Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag & Ors. Vs. Mst. Katiji & Ors., Reported in 1987 AIR 1353 wherein the Court emphasized a liberal approach in condonation of delay cases, considering the broader interests of justice. The relevant paragraphs of which are reproduced herein below –
The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ’merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice—that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- “Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. May be admitted after the prescribed Period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.”
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. “Every day’s delay must be explained”
Does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical Considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay Is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
17. It is a well-established legal principle that the primary duty of the Courts is to adjudicate matters on their merits, ensuring justice is rendered substantively rather than being impeded by procedural technicalities. The Latin maxim fiat justitia ruat caelum — let justice be done though the heavens fall — underscores the judiciary’s commitment to substantive justice. In the instant case, the learned Sessions Judge’s preoccupation with the procedural aspect of delay condonation, to the exclusion of a detailed examination of the substantive issues raised, is a regrettable oversight. The judicial process mandates that when the legality, correctness, and propriety of an order taking cognizance are under challenge, it is incumbent upon the Court to conduct a thorough examination of the facts and circumstances surrounding the case. A perfunctory dismissal on technical grounds, without addressing the substantive merits, not only undermines the purpose of judicial review but also negates the core judicial function of ensuring justice. The approach of the learned Sessions Judge, focusing narrowly on procedural delay without due regard for the substantive issues, contravenes the principles of natural justice and cannot be countenanced. It is the considered view of this Court that a pragmatic and judicious approach should have been adopted, one that balances the procedural requirements with the overarching need to deliver substantive justice. The dismissal of the revision petition on procedural grounds, without a detailed and meticulous examination of the contentions raised, constitutes a miscarriage of justice. Accordingly, the decision of the learned Sessions Judge, which overlooks the imperative of substantive adjudication, is not sustainable in law and warrants judicial intervention to rectify the oversight.
18. The Sessions Judge’s order demonstrates a fundamental flaw in its approach. By narrowly focusing on the procedural aspect of delay condonation and summarily dismissing the revision petition, the judge failed to address the core issue of whether the Trial Court had erred in taking cognizance of the offence. This approach is contrary to the principles of natural justice, which require a fair hearing and a thorough examination of all relevant issues. The judge’s decision to prioritize technicalities over substantive justice not only undermines the petitioner’s right to a fair trial but also casts doubt on the integrity of the judicial process. It is imperative for Courts to strike a balance between procedural requirements and the substantive rights of the parties involved. In this case, the Sessions Judge’s decision to dismiss the revision petition on the sole ground of delay, without addressing the merits of the petitioner’s contentions, amounts to a miscarriage of justice.
19. The Limitation Act, 1963 serves a fundamental purpose of instilling discipline in the judicial process, ensuring that grievances are raised within a reasonable time frame to maintain the balance of justice. However, the objective of this statutory limitation is not to create an insurmountable barrier for the aggrieved parties but rather to ensure that cases are brought forth while evidence is still fresh and justice can be rendered effectively. It is imperative to adopt a liberal approach when considering applications for condonation of delay, especially in circumstances where procedural lapses are adequately explained and justified. The judiciary must refrain from a pedantic or overly technical application of limitation laws, as emphasized by the maxim actus curiae neminem gravabit, which asserts that an act of the Court shall prejudice no one. The Courts are thus enjoined to adopt a pragmatic approach, weighing the reasons for the delay against the interests of justice, rather than dismissing matters solely on technical grounds. It is a well-established judicial principle that procedural rules should act as a handmaid of justice, not as its mistress. Therefore, it is incumbent upon the Courts to prioritize the merits of the case over procedural technicalities, thereby safeguarding the right to a fair hearing and preventing a miscarriage of justice.
20. The learned Sessions Judge’s approach, characterized by an undue emphasis on procedural technicalities and a lamentable disregard for the substantive issues, cannot be condoned. This Court is of the view that the impugned order suffers from a fundamental flaw and must be set aside. The matter shall be remanded back to the learned Sessions Judge with specific directions to address the merits of the petitioner’s contentions and adjudicate the revision petition in accordance with law and the principles of justice.
21. In light of the foregoing discussion, it is concluded that the High Court or the Court of Session may exercise its revisional powers, suo motu also ,under Section 438 of the BNSS. This supervisory or monitoring power is exercised to ensure that justice is administered fairly and in accordance with the law. The exercise of this power is not contingent solely upon an application by a party; the Court is also empowered to act suo motu by calling for the record to examine the legality, correctness, or propriety of orders passed by inferior Courts. Furthermore, the Court may exercise its revisional power suo motu even in cases where a party initially applied but delayed in challenging the order. In such instances, the Court, to rectify any erroneous or unjust order, may invoke its suo motu revisional jurisdiction to correct the defect and uphold the principles of justice.
22. Accordingly, the instant Criminal Misc. Petition is allowed.
23. The order dated 01.08.2024 passed by the learned Sessions Judge, Chittorgarh in Criminal Revision Petition No. 64/2024 is hereby quashed and set aside. The matter is remanded back to learned Session Judge to restore the Criminal Revision Petition No.64/2024 (66/2024) to its original number. Whereafter notice be issued to the other parties and only after giving adequate opportunity of hearing to the parties, the petition shall be heard and considered afresh for the purpose of examining the legality ,correctness and propriety.
24. The stay petition stands disposed of.
