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Puvvula Abbulu v. The State Station House Officer, Law & Order, III Town Police Station, Vijayawada

Puvvula Abbulu
v.
The State Station House Officer, Law & Order, III Town Police Station, Vijayawada

(High Court Of Telangana)

Criminal Revision Case No. 345 And Criminal Revision Petition No. 299 Of 1974 | 02-07-1974


CHINNAPPA REDDY, J.

In Alapati Sriramamurti In re (1959) 2 Andh WR 1 = (1959 Cri LJ 822) (FB) a Full Bench of the Andhra Pradesh High Court following Veera Ramayya v. Seshavatharam, 1955 Andh WR 888 = (1956 Cri LJ 571 (2)) laid down a rule of practice that, except under exceptional circumstances, the High Court would not entertain a revision petition under Sections 435 and 439 of the Criminal Procedure Code of 1898 unless the Sections Judge was moved in the first instance. While laying down the rule of practice the Full Bench noticed that such was the rule of practice followed by the High Courts of Allahabad, Bombay, Calcutta, etc. though not of the Madras High Court or the Andhra Pradesh High Court until the decision in Veera Ramayya v. Seshavataram. The Full Bench thus consciously departed from the practice followed by the Madras High Court and the Andhra Pradesh High Court till then, with view to fall in line with the other High Courts. But that was under the Criminal Procedure Code of 1898. The Code of 1898 has been repealed and the Code of Criminal Procedure 1973 has taken its place. Our learned brother Chennakesav Reddi, J. has referred to us the question whether the rule of practice should continue to be followed after the coming into force of the new Code.

2. Section 435 of the Code of Criminal Procedure, 1898 enabled the High Court or any Sessions Judge or District Magistrate to call for and examine the record of any proceeding before any inferior Criminal Court situated within the local limits of its or his 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 interior court. It also provided that if an application had been made either to the Sessions Judge or the District Magistrate, no further application should be entertained by the other of them, Session 436 enabled the High Court or the Sessions Judge, on an examination of the Record under Section 435 or otherwise, to direct the District Magistrate by himself or by any Magistrate or by any Magistrate sub-ordinate to him to make further enquiry into any complaint which had been dismissed under Section 203 or Section 204(3) or into the case of any person accused of an offence who had been discharged. Section 437 enabled the Sessions Judge or the District Magistrate, on examining the record of any case under Section 435 or otherwise, if he considered that such case was triable exclusively by the Court of Section and that an accused person had been improperly discharged by the inferior Court, to cause such person to be arrested and instead of directing a fresh enquiry order him to be committed for trial upon the matter of which he had been improperly discharged. Section 438 enable the Sessions Judge or the District Magistrate, on examining under Section 435 or otherwise the record of any proceeding, to report for the orders of the High Court, the result of such examination. Section 439 empowered the High Court in the case of any proceeding the record of which had been called for by itself or which had been reported for orders or which otherwise came to its knowledge, to exercise any of the powers conferred on a Court of appeal, etc. Thus, except in the limited class cases of an improper discharge or an improper dismissal of a complaint for which provision for interference by the Sessions Judge was made in Section 436 and 437 Criminal Procedure Code, the Sessions Judge was not competent to exercise any revisional powers such as those conferred on the High Court by Section 439, Criminal Procedure Code. The Sessions Judge could only report the result of his examination to the High Court for orders under Section 438, Cr.P.C. notwithstanding that he was concurrently empowered with the High Court to call for and examine the records under Section 435, Cr.P.C. The High Court, of course, always had the power to exercise revisional powers whether or not the Sessions Judge had been moved. The refusal of the Sessions Judge to make are reference to the High Court under Section 438 did not exhaust the jurisdiction of the High Court to directly entertain a revision petition. Nor did the failure of a party to move the Sessions Judge in the first instance bar such person absolutely from moving the High Court. The rule of practice laid down by the Full Bench in the case of Alapati Sriramamurthy was though to be advantageous to the litigation as it would be less expensive for the parties for the parties to approach the Session Judge and request him to make a reference to the High Court. It was also thought that the time of the High Court would not be unnecessarily spent in examining the record of cases. The High Court would also have the opinion of the sub-ordinate court before it.

3. Now, under the Criminal Procedure Code of 1973 there have been some radical departures from the Code of 1898. The powers of the Sessions Judge to interfere in revision are no longer confined to cases of improper discharge and improper dismissals of complaints. Under Section 399(1) and (2) of the present Code the Sessions Judge, in the case of any proceeding the record of which has been called for by himself, may exercised all or any of the powers which may be exercised by the High Court under Section 401(1). Section 401(1) enables the High Court to exercise in its revisional jurisdiction any of the powers conferred on a court of appeal by Sections 386, 389, 390, 391 etc. The conferment of full revisional powers on the Sessions Judge by the 1973 Code should make the observations of the Full Bench in Alapati Sri Ramamurthy's case (1959) 2 Andh WR 1 = (1959 Cri LJ 822) applicable with greater force and vigour. However that cannot be, because of Section 397(3) and Section 399(3) Section 397(3) provides that if an application under Section 397 to call for the records of an inferior Criminal Court 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. Section 399(3) provides that where any application for revision is made by or on behalf of any person before the Sessions Judge the decision of the Sessions Judge thereon in relation to such a person shall be final and no further proceedings by way of revision at the instance of such person shall be entertained by the High Court. 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 Section 397 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 under would result in the destruction of the right of that person to move the High Court under Section 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 under Section 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 Sections 397(3) and 399(3). We are therefore of the view that the rule of practice laid down by the Full Bench in Alapati Sriramamurthy cannot any longer be followed. The papers may now go before the learned single Judge for appropriate orders.

Order accordingly.

Advocates List

For the Petitioner K. F. Baba, Advocate. For the Respondent Public Prosecutor.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE A.V. KRISHNA RAO

HON'BLE MR. JUSTICE CHINNAPPA REDDY

Eq Citation

LQ 1974 HC 0860