Legal Provisions of Section 397 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Calling for records to exercise powers of revision:
Sections 397 to 401 of the Code deal with the revisional jurisdiction of the High Court of which Section 401 is the main operative section. This section empowers the High Court and the Sessions Judge to call for records of any inferior Criminal Court and examine them for themselves as to whether a sentence, finding or order of such inferior Court is legal, correct or proper and whether the proceedings of such Court are regular or not, with a view to prevent miscarriage of justice and perpetuation of illegality.
ADVERTISEMENTS:
The High Court can exercise revisional power suo motu and it should not dismiss a revision petition merely on technical grounds of limitation. Sub-section (2) bars revision of interlocutory orders.
The High Court or the Sessions Judge have the power to interfere at any stage of the proceeding, i.e., the case and they are under a legal duty to interfere when it is brought to their notice that some person has been illegally prosecuted or subjected to harassment, or same material error of law or procedure has been committed by an inferior Court which has resulted into miscarriage of justice.
Image Source : luna.edu
The cases of wrong exercise of jurisdiction or non-exercise of jurisdiction or improper appreciation of evidence etc. call for interference of the High Court or the Sessions Judge under Section 397. By and large, the interference of the High Court under its revisional jurisdiction may be justified on the following grounds—
ADVERTISEMENTS:
(1) In a case of grossly erroneous decision or findings of the inferior Court;
(2) Non-compliance or improper application of law;
(3) Illegal appreciation of evidence or irregularities in recording of evidence;
(4) Where judicial discretion has not been exercised properly or it is exercised arbitrarily or perversely.
ADVERTISEMENTS:
The provisions of Section 397 are attracted under the following conditions:—
(a) The proceedings must be that of an inferior Criminal Court;
(b) The term ‘inferior Court’ includes all Magistrates whether judicial or Executive, exercising original or appellate jurisdiction. They shall be deemed to be inferior to the Sessions Judge for the purposes of Sections 397 and 398. The Court of District Magistrate shall also be an inferior Court the Sessions Judge for the purpose of this section;
(c) Such inferior Court must be situate within the local limits of the jurisdiction of the revisional Court; and
(d) The purpose of calling records by the revisional Court should be to enable itself to satisfy as to correctness or legality of any finding, sentence or order recorded or passed or to examine the regularity of any proceedings of such inferior Court.
The revisional jurisdiction of the High Court or a Sessions Judge under Section 397 extends only to the ‘inferior Criminal Courts’ and it does not include a civil or revenue Court acting under Section 340 of Cr.P.C. An authority appointed under Section 6C of the Essential Commodities Act, 1955 is not an inferior Criminal Court for the purpose of this section. The Sessions Judge is inferior to the High Court and, therefore, the High Court can call for and examine the record of any proceeding before the Sessions Judge.
In Mohd Shakal v. State Police through P. S. Hanmakonda, revision was filed before the High Court against conviction of accused (appellant) for being responsible for suicide by his wife. There were arguable points involved in the petition but the High Court did not analyse various stands taken by the appellant.
The relevance of dying declaration and its effect on prosecution case also was not considered by the High Court and relying on the factual scenario it came to the abrupt conclusion that revision was without merits and dismissed the revision petition. On appeal, the Supreme Court held that the mode of disposal of revision by the High Court was not proper and it remitted the case for fresh consideration in accordance with law.
Proceeding:
The term ‘proceeding’ used in Section 397 (1) has a very wide connotation. It is not only confined to cases related to a commission or trial of an offence but include all judicial proceedings taken before an inferior Criminal Court even though they are not related to any specific offence.
For instance, cases under Sections 125-126, 133, 144 etc., though not necessarily concerned with the commission or prevention of an offence, they are nevertheless ‘proceedings’ within the meaning of Section 367 (1). The real test is not the nature of the proceeding but nature of Court in which such proceeding is held. If it is held in an inferior Criminal Court, the revisional jurisdiction of the High Court or Sessions Judge would extend to such proceeding under Section 397 (1).
The revisional Court has the power to order the release of offender on bail or bond under Section 397 (1). The discretion in this regard should, however, be used judicially considering all the circumstances of the case. Dismissal of revision by the High Court without assigning reasons is not sustainable and matter may be remitted to the Court for reconsideration.
Interlocutory Order:
Sub-section (2) of this section bans the exercise of revisional power in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The statutory bar on the power of revision in relation to interlocutory orders is intended with the object of eliminating inordinate delay in the disposal of criminal cases and to ensure expeditious trials.
What is an interlocutory order has always been a debatable issue, more so, because it has not been defined anywhere in the Code of Criminal Procedure. An order which is not final but merely provisional or temporary is generally called an interlocutory order.
But the true test of determining whether or not, an order is interlocutory in nature is whether the order in question finally disposes of the rights of the parties or leaves the case still alive and undecided. For instance, grant or cancellation of bail, adjournment of cases, etc. are interlocutory orders.
The Supreme Court has, however, held that the term ‘interlocutory order’ as used in Section 397(2) should be given liberal construction in favour of the accused in order to ensure fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted to ‘intermediate’ or ‘quasi-final’ orders which are not purely interlocutory in nature.
Explaining the meaning of the expression ‘interlocutory order’, the High Court of Kerala in State of Kerala v. T.P. Nandakumar, observed though the term has not been defined in Cr. P.C. but ordinarily and generally it has been understood as converse of the term ‘final order’.
In general, a judgment or order which determines the principal matter in question is termed “final”. An order which does not deal with the final rights of the parties but either is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure or is made after judgment, and merely directs how the declarations or rights already given in the final judgment are to be worked out, is termed “interlocutory”. But an interlocutory order even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.
The question whether grant or refusal of a bail is an interlocutory order has led to conflicting decisions of various High Courts. Some holding it an interlocutory order while other disagreeing with this view. While the Allahabad High Court has held that bail order is an interlocutory order, the Bombay High Court held that it is not an interlocutory order.
However, the Supreme Court has resolved the controversy and held that having regard to the nature of bail orders in criminal cases, it would be seen that there are orders which are neither interlocutory nor final, and the bail order is one of this kind. Therefore, the proper remedy in the matter of grant or refusal to grant bail is to file a petition under Section 482 (inherent powers) if permissible or to file a writ petition.
The Orissa High Court has held that framing of a charge is only an interlocutory order and, therefore, no revision lies against it under Section 397 (2). But the Kerala High Court held that the order framing a charge cannot be regarded as merely an interlocutory order because if the objection against the framing of the charge is upheld, the entire proceedings comes to an end. Therefore, a revision against such order is admissible under Section 397 (2) of the Code.
Some of the orders which have been held to be interlocutory in nature and hence no revision lies against them include an order granting bail, or granting maintenance allowance, an order staying criminal proceedings or taking cognizance of an offence, an order refusing to admit documents under Section 139 of the Customs Act and Section 66 of N.D.P.S. Act 1985. But an order summoning a person as an accused is not an interlocutory order and it is therefore revisable by the High Court.
Though an order tendering pardon is final order so far as the status and liability of the approver is concerned but since the accused person or persons are directly aggrieved by the orders, it has not been considered as an interlocutory order in the context of Section 397 (2) and, therefore, a revision can lie against such an order.
In the case of State of Uttar Pradesh v. Sujan Singh, the accused filed an application before the trial Court for the production of document but the Central Government claimed privilege. The trial Court allowed the application of the accused and the order was confirmed by the High Court in revision.
The Government referred an appeal to the Supreme Court. It was held by the Supreme Court that the said order was only an interlocutory order pending the proceedings and revision thereof was barred by Section 397 (2) of the Code.
In Mohan Lai v. State of Gujarat the question for decision before the Supreme Court was whether an order passed by the High Court in a criminal revision was a ‘final order’.
In the case of Sita Ram Pareek v. State of Rajasthan, the question of maintainability of revision under Sections 397/401, Cr. P.C. was before the High Court for consideration. Revision under Section 397/401, Cr. P.C. was filed against the order of Trial Court framing charges against the non-petitioner under Section 498-A and Section 306 of the Indian Penal Code and not under Section 498-A and 304-B of I.P.C. Though the cases before the Trial Court was prosecuted by the State and the State had not challenged the said order of the complainant against the order was maintainable.
No Second revision:
Sub-section (3) of Section 39 permits only one revision therefore if an application is made to a Sessions Judge and he is of the opinion that it should be referred to the High Court, then a fresh application for revision can be made to the High Court. But the sub-section bars an application for the revision to the High Court if a person has already applied for it to the Sessions Judge or vice versa.
Thus where a husband filed a revision application against the order of maintenance to the wife and the minor son. It was dismissed. Thereafter he filed a second revision application through his minor son. Held that neither the Magistrate nor the revisional Court had passed any order against the minor son and, therefore, there was no question of his being aggrieved and hence no application for another revision could be entertained.
However, it does not debar the High Court from entertaining application for invoking the Court’s inherent powers under Section 482, Cr. P. C.
A person can directly move a revision application to the High Court without first approaching the Sessions Judge. But if he moves the Sessions Judge he cannot thereafter approach the High Court for another revision. So also where the revision against the order of a Magistrate was dismissed by the Sessions Judge, second revision to the High Court against the same person and same order is barred by Section 397 (3).
The general rule in this regard is that a concurrent jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior Court, i.e., the Sessions Judge in the context of Section 397(3) unless exceptional grounds for taking the matter directly to the higher Court (High Court in this case) are made out. The Bombay High Court, in this context has, however, observed that “an aggrieved party cannot directly invoke the revisional jurisdiction of the High Court leapfrogging the Sessions Judge.”
In the case of C.B.I, v. State of Gujarat ADJ, Nadiad noticed that the Investigation Officer, Nadiad Town Police Station could not get any fruitful result in the case No. 2/1986 relating to theft case punishable under Section 381, I.P.C. He, therefore, wrote a letter to CJM requesting therein to hand over the investigation of the case to C.B.I, which CJM did vide his letter dated 29.9.1999, directing C.B.I, to investigate the matter and report to him at the earliest.
C.B.I, through its Public Prosecutor filed an application in the Court of CJM, Nadiad to recall his order which was rejected by CJM vide his letter dated 6.10.99. Consequently, C.B.I, moved in revision before the High Court of Gujarat against the CJM’s direction.
The High Court dismissed the revision in terms of Section 397 Cr. P.C. holding that the order of CJM could have been challenged before the Sessions Court. Thus C.B.I, allegedly bypassed the alternative remedy and moved the High Court directly which was improper and a cost of Rs. 1,000 was imposed on C.B.I, for adopting wrong path. The C.B.I, moved an appeal against the order of High Court before the Supreme Court.
In support of the appeal, the counsel for C.B.I, submitted that the approach of High Court was erroneous. The C.B.I, was not a litigant as observed by the High Court. In fact, before passing order to hand over the case to C.B.I, the Chief Judicial Magistrate should have granted C.B.I, an opportunity to be heard so that it could have beer, shown cases of routine matter such as theft do not involve any specialized investigation and therefore need not have been entrusted to C.B.I.
It was pointed out that in terms of Section 397, either the Sessions Court or the High Court could be approached. Hence the High Court was not justified in holding that C.B.I, had bypassed the remedy. The Supreme Court agreed with the aforesaid contentions and held that the High Court should have entertained the petition and the criticism leveled against C.B.I, was uncalled for. Allowing the C.B.I.’s appeal the Apex Court set aside the costs of Rs. 1000 imposed against C.B.I.
The bar on second revision cannot be circumvented by invoking the Inherent Powers of the High Court under Section 482:
Where a revision filed under subsection (1) has been dismissed by the Sessions Judge or the High Court, as the case may be, the person aggrieved cannot move a second revision which is barred under sub-section (3), nor can he invoke the inherent power of the High Court by filing a petition under Section 482, Cr.P.C. in order to neutralize the bar of second revision. In other words, he cannot do something indirectly what he cannot do directly. Such circumvention is prohibited under Section 397 in the matter of revision.
Likewise, an aggrieved person may try to flout the bar put by Section 397 (2) on the revision of an interlocutory order by invoking the inherent powers of the High Court under Section 482 which is not permissible under this section. Therefore, if the order assailed is purely of an interlocutory nature, the High Court will refuse to exercise inherent power.
Ex-parte order may be revoked:
The Supreme Court in Ram Abhilekh v. State of Uttar Pradesh, held that where the accused (appellant) has taken keen interest in the revision petition and shown anxiety about its outcome, and there seemed no reason to believe that he might have been instrumental in keeping the proceedings pending, the disposal of the petition ex -parte due to his non-appearance would not be proper, especially when it is on record that the appellant had been present in the court throughout the proceedings on all the dates of hearing.
The Supreme Court set aside the ex-parte decision against the appellant as there was no reason to disbelieve the reason which he gave for his non-appearance on the date when ex -parte order was passed against him. The Apex Court remanded the case to the High Court with the above observation.
The Supreme Court in Shakuntala Devi & others v. Chamru Mahto & another, reiterated that the object of introduction of sub-section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but at the same time the door to the High Court to a litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under Section 397 (3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, Cr P. C. was not subject to prohibition under sub-section (3) of Section 397 and was capable of being invoked in appropriate cases.