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Sivan Pillai v. Rajamohan & Others

Kerala High Court

Jan 27, 1978

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Factual and Procedural Background

This Full Bench reference was constituted to consider the correctness of two Division Bench rulings of the Kerala High Court: Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 KLT. 739). Khalid, J. initially noticed a conflict of judicial opinion on the question and referred the matter to a Full Bench. The central procedural issue concerns the correct practice under the new Code of Criminal Procedure (Cr. P.C.)—specifically whether the introduction of section 399 (and related provisions) changes the established practice that a party seeking revision must first approach the Sessions Judge before the High Court, and whether parties may approach the High Court directly in the first instance for revision. The Full Bench heard submissions, reviewed statutory provisions (notably Ss. 397, 399, 401, 402 and 403 of the new Code), considered prior High Court and Supreme Court decisions, and delivered a majority opinion (Gopalan Nambiyar, C.J.) and a detailed separate opinion (Janaki Amma, J.) dissenting in part from the majority's overruling of the earlier Division Bench decisions.

Legal Issues Presented

Whether, under the amended Code of Criminal Procedure (notably Ss. 397 and 399), a party seeking revision must, as a rule or practice, first approach the Sessions Judge before approaching the High Court for revision.
Whether the Division Bench rulings in Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 KLT. 739) — which imposed an absolute bar on approaching the High Court in the first instance for revision — are correct and should be followed or overruled.
What is the effect of S. 399(3) (and related provisions such as Ss. 397, 401, 402 and 403) on the concurrent revisional jurisdiction of the Sessions Judge and the High Court, and on a party's option to choose the forum?
How should potential conflicts (i.e., different parties moving different forums in respect of the same proceedings) be managed under the new Code — by rule of practice, transfer provisions (S. 402, S. 407), or otherwise?

Arguments of the Parties

Learned Advocate General's Arguments

The Advocate General contended that, to avoid conflicting decisions and resulting chaos if some parties approach the Sessions Judge and others the High Court (particularly in proceedings under Ss. 133 or 145 Cr. P.C.), a rule of limitation or salutary practice requiring resort first to the Sessions Judge is necessary.
He emphasised that S. 403 recognises that a party has no right to be heard before a court of revision and argued that this supports confining initial revisional applications to the Sessions Judge.
Overall, the Advocate General urged that practical considerations of orderly procedure and prevention of conflicting decisions warranted sustaining the rule that the Sessions Judge be approached in the first instance.

Earlier Division Bench Position (as characterised in the opinion)

The Division Bench decisions in Abraham and Raman Pillai took the view that S. 399 (and the new Code generally) altered prior practice and that the Sessions Judge, now empowered to pass final and effective orders, should be moved first in revision; accordingly, they stated that no party can approach the High Court directly without first moving the Sessions Judge.

Note on Other Party Arguments

The opinion records submissions made by the Advocate General and explains the previous Division Bench positions; it does not provide a detailed, itemised account of arguments made by opposing private litigants in the underlying revision petition. If any private-party arguments were raised in the underlying proceedings, they are not detailed in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abraham v. Thankamma (1975 KLT. 451)	Division Bench ruling that, under the new Code, no party can approach the High Court directly in revision without first moving the Sessions Judge (an absolute bar).	The Full Bench majority held that the rule stated in absolute terms in Abraham is incorrect and overruled those parts of the decision that imposed an absolute bar.
Raman Pillai v. Dakshayani (1975 KLT. 739)	Re-affirmation of the view that parties must approach the Sessions Judge first in revision.	The Full Bench majority rejected the absolute rule as stated in Raman Pillai and overruled it to the extent it imposed a total ban on approaching the High Court first.
Narayaran v. Kannamma Bhargavi (1968 KLT. 495) (Full Bench)	Earlier Full Bench decision that under the previous Code the Sessions Judge could not pass effective orders in certain categories and therefore parties need not be compelled to approach Sessions Judge first.	The Full Bench majority held that, in the light of the amended provisions of the new Code, Narayaran (which modified earlier practice) is not applicable and there is no room to revive its rule of practice; the majority therefore declined to follow its ratio as a binding practice under the new statutory scheme.
Devaki v. Kitta (1967 KLT. 31)	Division Bench decision establishing a practice that ordinarily a revision petitioner should first approach the Sessions Judge before the High Court.	The Full Bench majority reviewed this earlier practice and concluded that the new Code's provisions do not warrant importing the rule of practice so as to destroy the statutory option conferred by S. 397(1); the majority did not continue the absolute practice embodied in Devaki where it conflicts with the new Code.
Veera Ramayya v. Vdayagiri Venkita Seshavatharam (AIR 1956 And. 97)	Andhra High Court authority followed by the Division Bench in Devaki, supporting the practice of approaching the Sessions Judge first.	The Full Bench noted this authority as part of the lineage of the rule of practice but concluded that the amended Code changes the landscape and the earlier practice cannot be enforced to nullify statutory options.
Romesh Thappar v. State of Madras (AIR 1950 S.C. 124)	Discusses the (non-)application of a rule of practice requiring exhaustion of lower courts where a guaranteed remedy (Art. 32) is invoked; held Art. 32 is a guaranteed remedy and unlike other contexts, Supreme Court cannot refuse jurisdiction merely as a matter of practice.	The Full Bench considered this authority but distinguished it: Romesh Thappar arose under Art. 32 and its reasoning was not directly applicable to revision jurisdiction under the Cr. P.C.; the Full Bench used the case to explain limits of invoking practice rules where statutory jurisdiction exists.
Emperor v. Bisheswar Prasad (56 All. 158 / AIR 1933 All. 678)	Example cited (by earlier counsel) of enforcement of practice in criminal revision in a different jurisdiction.	The Full Bench noted the citation (comparative authority) but did not adopt it as controlling; it emphasized differences in constitutional and statutory contexts.
Urquhart v. Brown; Hooney v. Kolohan (U.S. cases)	American precedents cited to show that U.S. Supreme Court required exhaustion of remedies in some contexts.	The Full Bench observed these American decisions were not analogous to the Indian constitutional and statutory framework (noted especially in Romesh Thappar) and they were not treated as decisive.
Daryao v. State of U.P (AIR 1961 S.C. 1457)	Principle that a decision on Art. 226 may, in conceivable cases, operate as res judicata and bar an Art. 32 petition (res judicata considerations between remedies).	The Full Bench noted the principle but treated it as context: while res judicata principles can apply between remedies, they do not justify importing a practice that nullifies statutory options under the new Code.
Tilokchand Motichand v. H.B. Munshi, Commissioner of Sales-Tax (1969) 1 SCC 110; AIR 1970 S.C. 898	Authority on the inter-relationship of remedies and potential preclusive effects of one remedy on another.	The Full Bench acknowledged these authorities as part of the jurisprudential background but did not allow them to dictate a practice that would defeat the statutory scheme of Ss. 397/399.
Arati Ray Choudhury v. Union of India ((1974) 1 SCC 87 : AIR 1974 SC. 532)	Another Supreme Court authority on interplay of remedies and procedural bars.	Recorded as part of the background; the Full Bench did not treat it as requiring the adoption of a forum-exhaustion practice under the new Code.
Puvvula Abbulu v. State Station House Officer, Vijayawada (1975 Crl. L.J 139)	Andhra High Court Division Bench ruling that the new Cr. P.C. removed justification for insisting that revision be filed first before the Sessions Judge.	The Full Bench referred to this decision as supportive of the majority view that the amended Code permits direct approach to the High Court; it was one of the authorities noting changed practice under the new Code.
Brahmachari Satyanarayana Maharaj v. Kantilal L. Dave (1976 Crl. L.J 1806)	Bombay High Court decision holding that a local rule (Rule 14) requiring approach to Sessions Judge first was inconsistent with the new Code.	The Full Bench noted this decision as consonant with the majority's conclusion that rules of practice which conflict with statutory provisions are untenable.
Mohd. K. Khan Hanif Khan v. Smt. Shamim Begum (1977 Crl. L.J 116)	Allahabad High Court held that where an application to Sessions Judge was withdrawn, the party was not barred from approaching the High Court.	The Full Bench observed this decision supports the position that a party's right of revision cannot be cut down by mere rules of practice; cited as not directly on point but consistent with majority's construction.
Harakh Singh v. Lalmuni Kuer (1977 Crl. L.J 723)	Patna High Court held that where an application to Sessions Judge was made and dismissed as not pressed, the party was precluded from approaching the High Court.	The Full Bench noted this decision; together with Mohd. K. Khan it illustrated particular factual consequences but did not undermine the majority conclusion that practice rules cannot nullify statutory options.
P. K. Mitra v. State of West Bengal (AIR 1959 S.C. 144)	Revisional jurisdiction of the High Court is discretionary; it creates no enforceable right in a litigant but conserves the High Court's power to ensure subordinate courts do not exceed jurisdiction or abuse power.	The Full Bench relied on P. K. Mitra to underline that revisional jurisdiction is discretionary and that no party has an implied right to demand that the High Court admit or hear a revision petition — supporting the view that statutory wording, not practice, governs the position.
Madhu Limaye v. State of Maharashtra ((1977) 4 SCC 551 : AIR 1978 S.C. 47)	Supreme Court held that the bar under S. 397(2) does not impede the High Court from exercising inherent powers under S. 482 in appropriate cases.	The Full Bench relied on this decision to observe that the High Court retains inherent/constitutional powers and may act in appropriate cases despite statutory bars; Janaki Amma also cited it to argue the High Court's retained powers justify continuing the rule of practice.
Madhavlal v. Chandrasekhar (1976 Crl. L.J 1604); Satyanarayan v. Kantilal (1976 Crl. L.J 1806)	High Court decisions (Bombay/Gujarat references) that declined to follow the Kerala Division Bench approach and treated the new Code as removing justification for the earlier practice.	Janaki Amma records these as later decisions which she says did not take into account the reasons of the earlier Division Bench; the Full Bench majority noted these authorities as part of the national authorities pointing away from enforcing an absolute practice rule.

Court's Reasoning and Analysis

The opinion contains two principal judicial analyses: the majority opinion delivered by Gopalan Nambiyar, C.J., and a separate opinion by Janaki Amma, J. Both focus on the statutory scheme of the new Code and on whether prior practices or rules of the High Court should be enforced so as to require initial resort to the Sessions Judge. The court's step-by-step reasoning (majority) is summarized below, followed by the principal points made by the dissent:

Majority reasoning (Gopalan Nambiyar, C.J.)

Statutory framework: The new Cr. P.C. confers concurrent revisional jurisdiction by S. 397(1) on the High Court and on the Sessions Judge. Sections 399, 401, 402 and 403 define the powers and interplay between these forums; S. 399(3) states that if an application under S. 397 has been made by any person either to the High Court or the Sessions Judge, no further application by the same person shall be entertained by the other of them.
Effect of S. 399(3): The bar in S. 399(3) operates only against a person who has already moved one forum; it does not create a rule that precludes initial resort to either forum. To treat S. 399(3) as supporting a mandatory rule of approach to the Sessions Judge would render the statutory option conferred by S. 397(1) nugatory.
Concurrent jurisdiction principle: Where concurrent jurisdiction exists, a salutary practice ordinarily suggests exhausting the lower forum first. However, a statutory provision that gives a party an option to choose between forums should not be nullified by a court-made rule of practice that carries a punitive consequence (i.e., loss of right to approach the other forum under S. 399(3)).
Remedies against conflict: Practical problems of conflicting decisions (if different parties approach different forums) can be managed by statutory provisions such as S. 402 (which permits the High Court to decide which forum should finally dispose of applications and to order transfers) and S. 407(1)(c) (wide transfer power), rather than by imposing a blanket rule of practice.
Precedent and statutory harmony: The Full Bench reviewed prior High Court authorities and decisions of other High Courts. It concluded that the amended code demonstrates Parliament's intention to leave the option open and that prior Division Bench rulings which imposed an absolute bar (Abraham and Raman Pillai) are inconsistent with the statutory scheme and are overruled to that extent.
Conclusion on maintainability: Given this statutory construction and the availability of statutory mechanisms to avoid conflicting decisions, the majority held that a revision petition is maintainable in the High Court even if the Sessions Judge has not been approached first; the matter was accordingly posted for hearing.

Dissenting and separate reasoning (Janaki Amma, J.)

Janaki Amma explains she was a party to the earlier Division Bench decisions and does not share the embarrassment expressed by Khalid, J. She believes there were sound reasons for the Division Bench to continue the established rule of practice that ordinarily a party seeking revision should first approach the Sessions Judge (as reflected in Devaki v. Kitta and Narayanan).
Distinguishing Romesh Thappar: She doubts Romesh Thappar's ratio is apt here, since it addressed Art. 32 (a guaranteed remedy) whereas revision under the Cr. P.C. is a statutory, discretionary power; hence the analogy is limited.
On discretion: Emphasising P.K. Mitra, she reiterates that revisional jurisdiction is discretionary and does not create a litigant's right to be heard; nonetheless, she contends that the High Court may, in its discretion, lay down a rule of practice that requires resort first to the Sessions Judge, because the Sessions Judge under S. 399/401 is given plenary revisional powers and can provide equivalent relief in most cases.
Practical considerations and transfer: Janaki Amma argues that continued adherence to the rule of practice prevents confusion and inequity (for example, preventing parties from successfully seeking to have their chosen forum vindicated only to see their cases transferred unfairly). She notes the High Court retains inherent powers (S. 482 and Art. 227) and can exercise them despite statutory bars (citing Madhu Limaye), so regulating its own practice does not deprive it of power.
Conclusion of dissent: For these reasons, Janaki Amma would have continued the earlier rule of practice requiring initial recourse to the Sessions Judge and regrets being unable to agree with the Chief Justice's overruling of the Division Bench decisions.

Holding and Implications

Holding: The Full Bench (by majority) held that a revision petition is maintainable in the High Court even if the Sessions Judge has not been approached first; the Division Bench decisions in Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 KLT. 739), to the extent they laid down an absolute rule that a party cannot approach the High Court in the first instance in revision, are overruled.

Implications:

Direct effect on the parties in this case: The revision petition before the High Court is maintainable and will be posted for hearing in the usual course (as per the Court's order).
Choice of forum preserved: Under the majority view, Ss. 397 and 399 (and related sections) permit a party to invoke revisional jurisdiction either in the Sessions Court or in the High Court; the statutory option is not to be nullified by a rigid court-made rule of practice.
Limits on the ruling: The majority emphasised that S. 399(3) still operates to bar further application by the same person once that person has applied to one of the forums; the court's decision does not abolish that statutory bar but prevents a pre-existing practice from effectively destroying the statutory option.
Conflict management remains statutory: The Full Bench indicated that practical issues arising from different parties invoking different forums should be managed through statutory provisions (S. 402, S. 407) and the High Court's inherent powers where appropriate, rather than by an absolute prophylactic rule requiring resort first to the Sessions Judge.
No new broad constitutional holding: The decision is statutory/interpretive of the Cr. P.C.; where the opinion discusses constitutional cases (e.g., Romesh Thappar, Art. 32), it does so to distinguish those contexts rather than to lay down a new constitutional principle. The majority expressly overruled earlier High Court decisions to the extent they had laid down an absolute practice rule inconsistent with the new Code.
Dissent noted: A Member of the Bench (Janaki Amma, J.) dissented on the question of continuing the prior rule of practice and would have retained the practice of requiring initial approach to the Sessions Judge; this limits the unanimity and suggests continued debate about the prudential regulation of the High Court's revision jurisdiction.

Order: In view of the majority opinion, the Criminal Revision Petition is maintainable in this Court and will be posted for hearing in the usual course.

Show all summary ...

Gopalan Nambiyar, C.J:— This matter has been placed before a Full Bench to consider the correctness of two Division Bench rulings of this Court in Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 KLT. 739). Both the decisions were by a Division Bench consisting of Khalid and Janaki Amma, JJ. Khalid, J. who made the order of reference in the first instance noticed the conflict of judicial opinion on the question, expressed his misgiving as to the correctness of the prior rulings and his embarassment in the matter, and felt that the matter had to be decided by a Full Bench. It was accordingly referred by a Division Bench of two of us to a Full Bench.

2. The two Division Bench rulings referred to earlier took the view that the introduction of S. 399 in the new Criminal Procedure Code alters the practice settled for this Court in Narayaran v. Kannamma Bhargavi (1968 KLT. 495) (F.B). The Division Bench noticed that the Sessions Judge had been given power pass final and effective orders in all cases, unlike the position in the previous Code where, in certain cases, the Sessions Judges could only report the matter for final orders of the High Court. Taken along with the fact, that the code contemplated institution of proceedings in the court of the lowest jurisdiction the Division Bench was of the view that the Sessions Judge had to be moved first in revisional jurisdiction also. The Division Bench felt that a harmonious construction of S. 397 clause (3) with S. 399 clause (3) led to the conclusion that the legislative intent was as far as possible, to make the Sessions Judge the final Court and that if every party approaches the High Court direct, S. 399 clause (3) would become unnecessary. In Abraham v. Thankamma (1975 KLT. 451) the position was stated thus:

“24. We, therefore, bold relying upon the Full Bench ruling laid down in 1968 KLT. 495 and on the basis of the new section of the Code that no party can approach this Court direct without moving the Sessions Judge at the first instance in revision.”

3. The position was stated in terms absolute imposing a total ban on the party approaching the High Court in the first instance in revision. In Raman Pillay's case (1975 KLT. 739) the position was re-affirmed. It is unnecessary to notice in detail the history of the rule of practice settled for this Court in 1968 KLT 495. With respect to the provisions of Ss. 435, 436, 438 and 439 of the earlier Crl. Procedure Code, a Division Bench of this Court had in Devaki v. Kitta (1967 KLT 31) laid down that ordinarily and normally a party filing a revision petition must first approach the Sessions Judge and only thereafter come to the High Court. The Division Bench followed the ruling of the Andhra Pradesh High Court in Veera Ramayya v. Vdayagiri Venkita Seshavatharam (AIR. 1956 And. 97). The Full Bench in 1968 KLT. 495 took the view that under the then Criminal Procedure Code the Sessions Judge could not pass an effective order in certain categories of cases, but had to report the matter for the decision of the High Court (vide S. 438 of the Criminal Procedure Code); and that in this view, it would not be just or equitable to compel a party to resort in the first instance to the Sessions Judge before approaching the High Court. Let us approach the consideration of the question with respect to the provisions of the present Criminal Procedure Code.

4. S. 397 of the Code in so far as it is material reads;

“397. (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 bail or on his own bond pending the examination of the record.”

(3) If an application under this section has been made by any person either to the High Court or the Sessions Judge, no further application by the same person shall be entertained by the other of them.”

5. Ss. 399, 401 and 402 may also be noted:

“399. (1) in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of S. 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of S. 401 shall, so far as may be, apply to such proceeding and reference in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) 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 person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

401(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Ss. 386, 389, 390 and 391 or on a Court of Session by S. 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(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 thereto and that it is necessary in the interests 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.

402. (1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the question involved, which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the applications for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.

(2) Whenever any application for revision is transferred to the High Court, that Court shall deal with the same as if it were an application duly made before itself.

(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.

(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other Court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge.”

6. S. 403 enacts that save as otherwise expressly provided by the Code, there is no right to be heard either personally or by pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, bear any party either personally or by pleader. On these provisions it will be seen that a concurrent jurisdiction in the matter of revision is conferred by S. 397(1) on the High Court and on the Sessions Judge. It is a salutary and well accepted principle that in such cases, where a concurrent jurisdiction is conferred on two forums the lower forum should be exhausted first before approaching the higher one. This practice is referred to by the Supreme Court in Romesh Thappar v. State Of Madras (AIR. 1950 S.C 124) as follows:

“5. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under Art. 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under S. 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under S. 435 Crl. P.C, applications for bail and applications for transfer under S. 24, Civil P.C as instances where, Concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice had been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor v. Bisheswar Prasad, 56 All. 158 : (AIR. 120 1933 All. 678 : 34 Cr. L.J 115 FB), where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions, Urquhart v. Brown, 205 U.S 179 and Hooney v. Kolohan, 294 US 103 as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the applicant in Federal and State Courts should be exhausted before the remedy in the Supreme Court be it habeas corpus or certiorari would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by Art. 32 of the Indian Constitution. That Article does not merely confer power on this Court, as Art. 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III. or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among Art. 131 to 239 which define that jurisdiction Art. 32 provides a “guaranteed” remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the united States and we do not consider that the American decisions are in point.”

7. The principle was not accepted or applied on the ground that an application under Art. 32 of the Constitution was for enforcing fundamental rights and was itself a guaranteed remedy. We may also notice the decision in Daryao v. State of U.P (AIR 1961 S.C 1457) to which our attention was drawn by the learned Advocate General to the effect that a decision on a petition under Art. 226 of the Constitution may, in conceivable cases, operate as res judicata and bar a petition for similar relief under Art. 32 of the Constitution. The principle was affirmed in Tilokchand Motichand v. H.B Munshi, Commissioner of Sales-Tax, Bombay ((1969) 1 SCC 110 : AIR 1970 SC. 898) and Arati Ray Choudhury v. Union of India ((1974) 1 SCC 87 : AIR. 1974 SC. 532). But with these principles thrown in, on the terms of the statutory provisions, would we be justified in insisting even as a rule of salutary practice that the party should approach the Sessions Judge first before moving the High Court? In the face of the bar provided by clause (3) of S. 399, to import such a rule of salutary practice would be to render the option under clause (1) of S. 397 nugatory. We see that the bar under S. 399(3) can operate only against a party who moved the Sessions Judge; so that, if the party succeeded before the Sessions Judge a right of further revision to the High Court could be availed of by the opposite party. But this, we think, is only an attenuated right, available only in a small percentage of cases. It is one thing to apply a rule of salutary practice requiring the party to resort to the lower forum before moving the higher one, so long as the two forums are available for resort. But when this is coupled, so to say, with a penalty as in S. 399(3) that the choice of the one will bar access to the other, still to confine the party to the lower forum will be, practically, to destroy the option. A provision more or less on the lines of S. 399(3) occurs in S. 435 clause (4) of the earlier Criminal Procedure Code which was as follows:

“435(4). If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.”

8. But the scope and the applicability of that provision and the plane at which it operated, were quite different and understandable. We do not think we would be justified by importing a rule of practice or convention so as to destroy the statutory option given to a party of choosing anyone of two forums for filing the revision.

9. But the learned Advocate General to whom we issued notice, made a forceful submission to still confine the party to the Sessions Judge before approaching the High Court. It was contended that without any such limitation, conflict of decisions was likely to result if some of the parties approached the Sessions Judge and others, the High Court. This was particularly so in proceedings under Ss. 133 or 145 of the Cr. P.C To avoid the anomaly it was contended that rule of limitation or salutary practice was necessary. This was emphasised with respect to the provisions of S. 403 of the New Code of ??? which had statutorily recognised that the party had no right to be heard either to person or by pleader before a court of revision. The considerations stressed by the learned Advocate General are forceful; but we do not think they should be allowed to override the effect of the statutory provision under S. 397(1) of the Code. The remedy against conflicting decisions and the resulting chaos, if one party were to resort to the Sessions Judge, and another, to move the High Court in the same proceedings, lies in as appropriate resort to the provisions of S. 402 of the Criminal Procedure Code, which we have extracted earlier. Further under S. 407(1)(c), there is a wide power of transfer on the High Court where it is expedient to direct a transf or for the ends of justice. In such a case the Section provides for the transfer of any particular case from one subordinate criminal court to another or for transfer of any particular case to the High Court to be tried by itself. These provisions appear sufficient to meet the ends of justice. In the light of the amended provisions of the Code we are satisfied that there is no room for applying any rule of practice or for reviving the principle of the decision in Narayanan v. Kannamma Bhargavi (1968 KLT. 495). We also feel satisfied that the rule stated in absolute terms in Abrahan's case (1975 KLT. 451) and in Raman Pillai's case (1975 KLT. 739) cannot be accepted as correct. These decisions, to the extent to which they laid down the rule in that fashion are overruled.

10. We may briefly notice the state of the authorities cited to us on this question. In Puvvula Abbulu v. State Station House Officer, Vijayawada (1975 Crl. L.J 139), a Division Bench of the Andhra High Court after noticing the provisions of the Crl. Procedure Code ruled that there was no longer any justification for following a rule of practice till then followed by the Andhra High Court and insisting on the party filing a revision first before the Sessions Judge before approaching the High Court. It was this rule of practice of the Andhra High Court laid down in AIR 1956 A.P 697 that was followed by the Division Bench of this Court in 1967 KLT. 31; which view was upset by the Full Bench in 1968 KLT. 495.

11. The Bombay High Court in Brahmachari Satyanarayana Maharaj v. Kantilal L. Dave (1976 Crl. L.J 1806) again examined the provisions of the new Criminal Procedure Code and went to the extent of holding that Rule 14 of the Bombay High Court Rules which ordained that in the matter of filing Criminal Revision Petitions the Sessions Judge shall be approached first before moving the High Court, was inconsistent with the provisions of the new Code.

12. The decisions in Mohd. K. Khan Hanif Khan v. Smt. Shamim Begum (1977 Crl. L.J 116) and in Harakh Singh… v. Lalmuni Kuer…Opposite Party. (1977 Crl. L.J 723) are not directly relevant. In the first of these, an application to the Sessions Judge was withdrawn acid it was held by the Allahabad High Court that the party was not barred from approaching the High Court. In the second, the application to the Sessions Judge was made and dismissed as not pressed by the party. It was held by the Patna High Court that he was precluded from approaching the High Court. The decisions thus support the position that a party's right of revision cannot be cut down or rendered otiose by any rule of practice. The decisions are consistent with the principle that we have deduced from a construction of the statutory provisions.

13. In the result, we hold that the revision petition is maintainable in this Court. The case will be posted for hearing in the usual course.

Janaki Amma, J.:— Being a party to the decisions in Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 K.L.T 739), which have been overruled in the judgment of the Hon'ble the Chief Justice, I would like to express my views on some of the aspects which came up for consideration before the Full Bench. I may also state at the outset that 1 do not share the embarassment expressed by Khalid, J. in his order of reference. I feel that it was for sound reasons that the Division Bench decided to continue the rule of practice hitherto followed by the High Court in the matter of entertaining applications for revision and which has been referred to in Devaki v. Kitta (1967 KLT. 31) and Narayanan v. Kaunamma Bhargavi (1968 KLT. 495). It is no doubt true that the High Courts of Andhra Pradesh, Bombay and Gujarat in Puvvula Abdulu v. State Station House Officer, Vijayawada (1975 Crl. L.J 139), Madhavlal v. Chandrasekhar (1976 Crl. L.J 1604) and Satyanarayan v. Kantilal (1976 Crl. L.J 1806) decided otherwise. The decision of the Andhra Pradesh High Court has been referred to by Khalid, J. in Abraham v. Thankamma (1975 KLT. 451) and has been dissented from. The decisions of the Bombay High Court and the Gujarat High Court came after the Division Bench decisions of this court, referred to above. The High Courts of Bombay and Gujarat, I may say with respect, did not take into account the reasons mentioned by the Division Bench of this Court in the Judgments in Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 KLT. 739). The above decisions were not brought to the notice of the High Courts of Bombay and Gujarat. For obvious reasons, I do not want to elaborate the grounds covered in 1975 KTT. 451 and 1975 KLT. 739.

14. I doubt very much whether the ratio of the decision in Romesh Thappar v. State Of Madras (AIR. 1950 SC. 124) has any application in the present context. In that case, it was no doubt contended that an a matter of orderly procedure, the Supreme Court should not entertain an application under Article 32 of the Constitution before resort being made by the petitioner to the High Court under Art. 226. The Supreme Court rejected the contention with the observation that Art. 32 confers a guaranteed remedy for the enforcement of certain right and not merely a power on the court itself. The decision arose under Art. 32 of the Constitution which reads:

“Art. 32—Remedies for enforcement of rights conferred by this Part—

[1] The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

[2] The Supreme Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

[3] Without prejudice to the powers conferred on the Supreme Court by clauses [1] and [2], Parliament may, by law, empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause [2].

[4] The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution”

15. The Article confers a right on the citizen to move the Supreme Court and a power on the Supreme Court to issue directions, orders and writs. While the right of the citizen to move the Supreme Court is guaranteed, the exercise of the power is discretionary in the sense that the Court can refuse to exercise it unless proper grounds are made out. That was the reason why the Supreme Court declined to follow the rule of practice viz., that when concurrent jurisdiction is given in certain matters to the High Court and a Court of a lower grade, the party should proceed to the latter court. The provision relating to revision in S. 97 of the Code of Criminal Procedure stands on a different footing. The marginal note to the section reads:

“Calling for records to exercise powers of revision.”

16. The Section begins with the words:

“The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court………”

17. The section does not make mention of a motion by a party to a proceeding before an inferior Criminal Court. It is open to the High Court to invoke its revisional powers either suo moto or at the instance of any person. The word “person” is wide enough to include strangers. It is evident that under the scheme of the revisional jurisdiction, no party to a proceeding before an inferior Criminal Court has got a right to claim that a revision petition filed by him should be either admitted for hearing or heard on the merits by the High Court or by the Sessions Judge. The position is covered by the decision of the Supreme Court in P.K Mitra v. State of West Bengal (AIR. 1959 SC. 144). The Supreme Court held in that case that the revisional jurisdiction vested in the High Court by S. 439 of the Code of Criminal Procedure (1898) is a discretionary power which has to be exercised in aid of justice and added:

“Whether or not the High Court will exercsie its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by S. 439 of the Code, read with S. 433 do not create any right in the litigant but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.”

18. The ratio of the decision applies in the case of the revisional jurisdiction conferred under the Code of 1973 (new Code). That this is so is further made clear from S. 403 of the new Code which states that no party has any right to be heard either personally or by pleader before any court exercising its powers of revision. It is true that S. 397(3) states that if an application under S. 397 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. But neither S. 397(1) nor S. 397(2) makes mention of any application by any person. S. 397(3) only means that if either the High Court or the Court of Session is called upon to exercise its revisional jurisdiction by means of an application by a person, no further application will be entertained at his instance by the other of them. S. 397(3) does not confer an implied right on any party to a proceeding to move either the High Court or the Sessions Judge. To recognize such an implied right will be against the ratio of the decision in P.K Mitra v. State of West Bengal (AIR. 1959 SC. 144).

19. If a party to a proceeding has no right to say that a petition filed by him for invoking the revisional powers of the High Court should be either admitted or heard by the High Court, it is within the powers of the High Court to lay down a rule of practice and say that concurrent revisional jurisdiction having been given both to the High Court and to the Sessions Judge, the person desiring to invoke such jurisdiction should proceed first to the Sessions Judge. The Sessions Judge under S. 399 and S. 401 of the new Code, is conferred plenary powers of revision and is competent to give relief to the party to the same extent as the High Court. Therefore, the ground which led the Full Bench in Narayanan v. Kannamma Bhargavi (1968 KLT. 495) to modify the rule of practice recommended in Devaki v. Kitta (1967 KLT. 31) does not exist now.

20. Reference has been made in the course of the hearing to the 41st report of the Law Commission where it makes mention of the recommendations of the Judicial Reforms Committee of Uttar Pradesh that the Sessions Judge may be invested with power to pass final orders in revision in all matters other than petitions against orders of acquittal and for enhancement of sentence. The proposal did not find favour with the Law Commission. The Commission observed:

“The High Court is able to maintain one single standard for interference in such matters; but if this power descends to the courts of session, it is very doubtful if a uniform standard can be maintained. There is, then, the plain fact that the High Court can and does, by its prestige, make its decisions acceptable to a large number of people, which would not be the case with the courts of session.”

21. It is argued that the rule of practice adopted in the two Division Bench cases of this court will go against the above report of the Law Commission That may be So. But a scrutiny of the several sections relating to revisional jurisdiction contained in the new Code will show that the Parliament did not give much weight to the above expression of opinion by the Law Commission. In fact some of the other recommendations of the Law Commission relating to powers of revision are seen not acted upon by the Parliament. Contrary to the recommendation, the Sessions Judge has been made the final authority in cases where his revisional powers are invoked and where he concurs with the views of the trial court. Therefore, the report of the Law Commission need not be taken into consideration in deciding whether the High Court should lay down a rule of practice. On the other hand, the provisions relating to the revisional jurisdiction in the new Code would tend to show that the Parliament being aware of the rule of practice was of the view that only in cases where the Sessions Judge differs from the inferior court and in cases against the decisions of the Court of Session need the party approach the High Court for invoking its powers of revision.

22. An argument is advanced on the basis of S. 402, Code of Criminal Procedure that the framers of the Code intended to confer the option to persons interested to move either the High Court or the Sessions Judge in matters relating to revision. Assuming that was the intention, the question is only whether the High Court should exercise its own discretion and lay down a rule of practice as to when the power of revision should be exercised. S. 402 is no answer to the question. On the other hand, if the parties are given the option to move whichever court they want, S. 402 will be found to be inadequate to cope with a situation where different parties to the same proceeding choose to file separate petitions before the High Court and the Sessions Judge. S. 402 contemplates only cases of revision against conviction. A party convicted is ordinarily entitled to file an appeal against conviction and appeals against conviction, by Magistrates are to be preferred before the Sessions Judge (See S. 374). If the Sessions Judge confirms the conviction, the revision lies to the High Court only and no question of transfer under S. 402 arises in such cases. It is only in cases where no appeal lies from conviction and in cases where the Sessions Judge makes over the appeal to the Chief Judicial Magistrate that revision petitions can be filed against conviction to the Sessions Judge and in such cases alone, S. 402 can be invoked. On the other hand, there may be cases under S. 125 and S. 145 and allied provisions in the Code of Criminal Procedure where no conviction is involved. In such cases, if revision petitions are filed by different persons before the High Court and the Sessions Judge, transfer can be effected only under S. 407 Cr. P.C If the powers of transfer are not invoked in time, there is the risk of conflicting decisions being arrived at by the High Court and the Sessions Judge. Ordinarily, a party who chooses a particular court and files a revision petition would like to have his petition heard by that court. Therefore, if theprovisions relating to revisional jurisdiction are to be construed as conferring a right on a person to choose the forum, he is entitled to have the case disposed of by the court chosen by him and it will be inequitable to transfer his case to another court just because his opposite party or a stranger chose another forum. Such a contingency is inherent in a transfer under S. 407 Cr. P.C and can be avoided if the High Court lays down a rule of practice in respect of revision petitions.

23. Reference was also made to the decision in Mohammad Khan v. Shamin Begum (1977 Crl. L.J 116) and Harakh Singh… v. Lalmuni Kuer…Opposite Party. (1977 Crl. L.J 723). Though these cases do not deal with the matter in issue, there is no doubt that problems like those dealt with in the above decisions can be avoided if the rule of practice hitherto followed is continued. This practice has been in force in this Court ever since the coming into force of the new Code and in my view, it has worked satisfactorily. Whenever the order of the Sessions Judge in revision failed to satisfy the concerned person and he made out a case for interference under S. 482 of the Code of Criminal Procedure, this court has not hesitated to interfere. The Supreme Court has recently held that the bar under S. 397(2) does not stand in the way of the High Court in exercising its inherent powers in matters which tall under the purview of S. 482 Madhu Limaye v. State Of Maharashtra. ((1977) 4 SCC 551 : AIR. 1978 S.C 47). On a parity of reasoning, it is open to this Court to invoke its inherent powers in appropriate cases in spite of the bar under S. 397(3). In other appropriate cases, she High Court can exercise its powers under Art. 227 of the Constitution it goes without saying that by regulating the exercise of its powers of revision, the High Court is not deprived of such powers. It only means that the High Court, as a prudent measure, with a view to provide an orderly procedure and prevent confusion that may be caused by parties in the same case approaching indiscriminately the High Court and the Court of Session for exercise of their powers of revision decides not to entertain revision petitions from courts inferior to the Sessions Judge so that the concerned persons may approach the Sessions Judge and seek redress it is always open to the High Court to exercise its power of revision suo moto. I am, therefore, of the view that it is only fit and proper that the High Court regulates the exercise of its powers of revision at the instance of individuals and continue the rule of practice referred to in Devaki v. Kitta (1967 KLT. 31) and Narayanan v. Kannamma Bhargavi (1968 KLT. 495) and followed in Abraham v. Thankamma (1975 KLT. 451) and Raman Pillai v. Dakshayani (1975 KLT. 739). I regret that I am unable to agree with the order of the Hon'ble the Chief Justice which has been concurred to by Subramonian Poti, J.

ORDER BY COURT

24. In view of the majority opinion, the Criminal Revision Petition is maintainable in this Court and the same will be posted for hearing in the usual course.