Ajit Kumar Das v. Mathur Chandra Pal

N.G.Chaudhuri, J.:-

(1) In respect of an offence committed on 22,7. 76 opposite party no, 1 mathur chandra pal filed a petition of complaint in the court of s. D. J. M. ,at chandernagore on 22. 7. 1976 alleging commission of the same by the petitioner before us under sections 323 and 355 of the i. P. C. The complainant examined altogether four witnesses in support of his case. The learned magistrate trying the case had initially adopted the procedure for summary trial of offences. When the fourth witness was to be examined by an order he adopted the procedure prescribed for trial of summons cases. Three witnesses earlier examined by the complainant were not, however, recalled according to the section 260 (2) cr. P. C. Eventually by his order dated 21. 1. 82 judicial magistrate. 1st class, chandernagore, to whom the case was transferred for hearing and disposal, found the petitioner before us ajit kumar das guilty of an offence under section 355 i. P. C. Only convicted him of the same and ordered him to pay a fine of rupees one hundred, in default to suffer r. I, for two months. The learned magistrate farther order that the fine, if realised, be paid to the complainant.

(2) Because of the provision's of section 376 (c) of the cr. P. C. No appeal against the order could be filed. Under section 397 of the cr. P. C. The petitioner accused could file a revisional applica tion and he had his choice of forum. He could file his revisional application either in the high court or in the court of sessions judge. The accused petitioner chose, however, to file his revisional application before the sessions judge, hooghly. He contended virgourously before the learned sessions judge that there was gross violation of trie mandatory provisions of section 260 (2) of the cr. P. C. And as such the judgment rendered against the petitioner was illegal. The learned sessions judge, however, overruled the contention as he found that p. Ws. 1, 2 and 3 whose recall was prayed for on account of the learned magistrate's adopting the procedure prescribed for trial of summons cases were cross - examined in extensor and as such there was ho failure of justice. The learned sessions judge lock his stand on the provisions of section 465 cr. P. C. And thought that barren legalism could not overrule substantial justice which was done or in other words there was no failure of justice. The accused being unsuccessful in the revisional application before the sessions judge has come up before us filling the present petition under section 401 read with section 482 cr. P. C.

(3) Section 399 (3) scares us in the face at the very outset. It has been provided therein :

"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 proceedings by way of revision at the instance of such person shall be entertained by the high court or any other court

(4) Mindful of this. Mr. Himangshu de, the learned advocate for the petitioner places reliance on the decision of the supreme court in the case of madhu limaye vs. State of maharashtra, reported in air 1978 s. C. 165 and contends that in the interest of justice the high court can exercise powers under section 482 cr. P. C. To quash criminal proceedings. We have gone through the decision cited with care the decision does not consider the applicability if section 399 (3) to any proceeding. So we do not consider that the decision has any relevance for our purpose. For similar purpose mr. De places reliance on the decision of the supreme court in the case of raj kapoor and ors. Vs. State. Delhi administration) and ors. , reported in air 1980 s. C. 258 and contends that the inherent power of the high court under section 482 does not stand repelled when the revisional power under section 397 overlaps. He contends that nothing in section 397 or 399 of the code affects the amplitude of the inherent power preserved for the high court by section 482. We, find that this decision also did not consider a situation we are confronted with, namely, if in a case coming squarely within the provisions of section 399 (3) the high court can exercise its inherent power under section 482 cr. P. C. Mr. Sengupta the learned advocate on behalf of the complainant opposite party relies or. The cast) of jagir singh v. Ranbir singh and another reported in air 1979 s. C. 381 and ton tends that it has been held, by the supreme court that revision application against an order of a magistrate cannot be heard both by sessions judge and the high court, and the sessions judge once having given his final decision thereon further revision to high court is barred. Such revision application cannot also be sustained under arti cle 227 of the constitution of india. This supreme court decision we may point out, did not take into consideration the express provisions of section 399 (3) to which we have made reference at the outset because such occasion did not arise before the supreme court.

(5) We may point out that section 397 (3) of the code gives an option to a person involved in a criminal case before a magistrate to come up in revision either in the high court or to the sessions judges. But sub - section (3) clearly lays down :

"if an application under this section has been made by any person either to the high court or to the sessions court, no application by the same person shall be entertained by either of them."

The bar placed by the above quoted subsection is a bar to entertainment, of simultaneous applications by two revisional courts. The reason for the bar is not far to see. If two courts having similar jurisdiction exercise jurisdiction in respect of the identical matter simultaneously there may be conflicting decisions by the two courts. To avoid such conflicting decisions sub - section (3) has been incorporated in section 397 and it is for the person concerned to opt his forum in view of his own convenience and other things. Sub - section (3) of section 399 which we have quoted earlier, is attracted when the sessions judge has exercised his revisional jurisdiction and has given ms final decision. section 399 of the code describes the nature of power to be exercised by the sessions judge in revision and sub - section (3) invests his decision with finality so much so that once he has given his decision on a matter in revision the person who had come up before the sessions judge in revision cannot file further revision application before the high court or any, other court and such petition by him cannot be entertained.

(6) The difference between section 397 (3) and section 399 (3) should not be overlooked. Section 397 sub - section (3) prevents sessions judge and the high court exercising revisional power in respect of order passed by the same magistrate in the same case whereas section 399 sub - section (3) precludes entertainment of the revisional application, by the high court against the decision of the sessions judge by investing the decision of the sessions judge with finality. In this connexion to resolve the conflict between sections 399 (3) and 482 cr. P. C. We may recall the decision of the supreme court in the cask of pampapathy vs. State of mysore reported in air 1967 s. C. 286. In paragraph 8 it has been observed :

"the inherent power of the high court mentioned in s. 561 a, criminal procedure code (paraliel to section 482 of the code of 1973) can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the code."

(7) Specific provisions contained in section 399 (3) covers the field. So, in our opinion, there is no scope for invoking the extra ordinary inherent jurisdiction of the code under section 432 cr. P. C. We have already noted that the sole criterion to be adopted by the court in exercise of the powers is whether demands of justice require exercise of such power. In the present case we have noted that the learned sessions judge, hooghly, observed correctly that for non - compliance of section 260 (2) of the cr. P. C. By the learned magistrate no failure of justice had been occasioned to the petitioner accused. We are, therefore, satisfied that there is no occasion for exercise of our revisional power in the instant case either in point of law or in point of fact. We are told that the petitioner accused is an unemployed graduate. We only express our hope that the order of conviction passed against him by the learned magistrate will not have any adverse effect in the matter of getting any job or employment under any authority whatsoever. In conclusion we dismiss the revisional application and the rule earlier issued is discharged. Sent down the records of the case to the court below expeditiously.