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Case Number

196 of 1975

Advocates

V.N.Achutha Kurup
S.Bhoothalinga Iyer
N.Raghava Kurup
K.Chandrasekaran
C.K.Sivasankara Panicker

Judges

Mr. Justice V. Khalid
Ms. Justice P. Janaki Amma

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitions before the court raise the short point whether the High Court should invoke its revisional jurisdiction to examine the correctness, legality or propriety of an order of acquittal when the revision is filed at the instance of the de facto complainant. The opinion reviews the historical practice and statutory scheme under the old Code of Criminal Procedure, 1898 and the new Code of Criminal Procedure (Act 2 of 1974), and considers whether the practice (established in prior decisions such as Abraham v. Thankamma) that a party aggrieved by orders of subordinate courts should first approach the Sessions Judge applies where an order of acquittal is challenged in revision. The petitions were referred to a Division Bench because it had been contended that revision against an order of acquittal stands on a different footing and that s.402 of the new Code had not been adverted to in Abraham v. Thankamma. After statutory and precedent analysis, the court directed that the petitions be returned to the parties for presentation before the concerned Sessions Judges within three weeks.

Legal Issues Presented

Whether the High Court should invoke its revisional jurisdiction to examine an order of acquittal at the instance of the de facto complainant, or whether the aggrieved party must first approach the Sessions Judge (following the practice in Abraham v. Thankamma).
Whether the decision in Abraham v. Thankamma applies to orders of acquittal, given that the earlier decision did not relate to acquittal and did not advert to s.402 of the new Code.
Whether provisions in the new Code (notably s.397(3) and s.399(3)) deprive a person who approaches the Sessions Judge of the right to have the issue decided by the High Court.
Whether s.402 of the new Code (concerning transfer where concurrent petitions are filed by convicted persons) affects the rule requiring first resort to the Sessions Judge.
Whether s.484 (transitional provision) made a revision petition a continuation of proceedings pending at commencement of the new Code (and thereby affected the competence of the Sessions Judge to pass effective orders).

Arguments of the Parties

Petitioners' Contentions

The decision in Abraham v. Thankamma does not apply when an order of acquittal is challenged in revision because, it was contended, the High Court alone is competent to convert an order of acquittal into one of conviction.
In view of s.397(3) and s.399(3) of the new Code, a party who approaches the Sessions Judge is deprived of the right to have the issue decided by the highest tribunal in the State (i.e., the High Court).
Abraham v. Thankamma did not take into account s.402 of the Code of Criminal Procedure, and therefore its rule of practice should not be applied in the context of acquittal revisions under the new Code.
Some petitioners additionally argued under s.484 (transitional provision) that in cases where proceedings had commenced before the new Code, the Sessions Judge could not pass an effective order in relation to the order of acquittal because revision should be treated as continuation of pending proceedings under the old Code.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abraham v. Thankamma (1975 KLT 451)	The practice that revision petitions arising from matters pending in courts subordinate to the Sessions Judge should, at first instance, be filed before the Sessions Judge.	The Division Bench had earlier followed this rule; the court in the present opinion reaffirmed and applied that rule to revision petitions challenging orders of acquittal, noting the earlier decision did not deal with acquittals and had not adverted to s.402 but that omission did not affect the rule's application.
Das Isaac v. Narayanan (1958 KLT 1110) / Isaac v. Narayanan	Refers to the established practice that when concurrent revisional jurisdiction is conferred on courts of different grades, the aggrieved party should approach the inferior court first (specifically in matters under s.436 of the old Code).	Used to describe the historical practice followed by High Courts and to support the continuation of that practice under the new Code where the Sessions Judge can pass effective orders.
Mohammed Bashir v. Iffy (1963 KLT 932)	Also cited as authority describing the practice that inferior courts with revisional power should be approached first when they can pass effective orders.	Referred to as part of the body of decisions supporting the practice of first approaching the Sessions Judge in appropriate cases.
Devaki v. Kitta (1967 KLT 31)	Extended the principle of approaching the inferior court first to all cases under ss.435 and 439 of the old Code.	Identified as a decision that broadened the salutary practice which the court continued to treat as persuasive.
Narayanan v. Kannamma Bhargavi (1968 KLT 495) (Full Bench)	Held that a party with a strong case under s.439 of the old Code should not be compelled to approach the Sessions Judge except where the Sessions Judge or District Magistrate is capable of passing effective orders; in other revisional matters the aggrieved party may approach the High Court directly.	The opinion cites the Full Bench to show the limits of the practice (i.e., where inferior courts can pass effective orders, they should be approached first), and uses it as background for applying the practice under the new Code.
P. K. Mitra v. State of West Bengal (1959 S.C. 144)	Illustrates that the revisional jurisdiction of the High Court conserves the power of the High Court to ensure justice and does not create a substantive right in the litigant to file revision as of right.	Invoked to support the proposition that directing parties to approach the Sessions Judge first does not deprive them of any vested right to approach the High Court; reiterates that revisional jurisdiction is discretionary and regulable by the High Court.
Natabar Panda v. State of Orissa (AIR 1975 S.C. 1465)	Discussed in relation to interpretation of the transitional provision s.484(2)(a) of the new Code.	The court observed that the interpretation given in Natabar Panda does not contradict the court's view that s.484(2)(a) applies only to the particular stage of proceedings then pending (investigation, inquiry, trial, etc.) and does not convert subsequent procedural steps (such as revival of revision) into continuations under the old Code.

Court's Reasoning and Analysis

The court's analysis proceeds in statutory-historical and practical steps, confined to the materials and reasoning contained in the opinion:

Historical framework (old Code): Under the Code of Criminal Procedure, 1898, revisional powers were conferred on the High Court, Sessions Judge and District Magistrate (ss.435 and 436). Practice developed that where concurrent revisional jurisdiction existed, the aggrieved party should first approach the inferior court when that court was capable of passing effective orders; authorities cited include Das Isaac v. Narayanan and Mohammed Bashir v. Iffy.
Development of the practice: Devaki v. Kitta extended the practice to all cases under ss.435 and 439, and a Full Bench in Narayanan v. Kannamma Bhargavi qualified the rule by stating a party should not be compelled to approach the Sessions Judge when the Sessions Judge cannot pass effective orders; otherwise the aggrieved party may approach the High Court directly.
Changes in the new Code (Act 2 of 1974): The new Code reconfigured revisional jurisdiction: s.397(1) corresponds to s.435(1), s.398 to s.436, s.399 to s.436's functions, and s.401 to the High Court's powers. Notably, s.397(3) parallels s.435(4) but substitutes the High Court and Sessions Judge where previously Sessions Judge and District Magistrate were named. The Sessions Judge's revisional competence was expanded (s.399(2)), and s.399(3) bars further revision by the same person before the High Court once he has applied to the Sessions Judge.
Specific contentions addressed:
- On the contention that only the High Court can convert acquittal to conviction, the court held there is little force: the High Court's powers are controlled by s.401 and those powers can be exercised by the Sessions Judge under s.399(2); therefore the Sessions Judge is competent to deal with such cases if interference is warranted.
- On the argument that a person is deprived of the right to have their case examined by the High Court if they first approach the Sessions Judge, the court observed that revisional jurisdiction does not confer a personal right to litigants but preserves the High Court's power to ensure justice; directing initial resort to the Sessions Judge simply recognizes the Sessions Judge as an appropriate senior forum and preserves finality where the Sessions Judge concurs with the subordinate court. The High Court retains powers of suo motu interference, superintendence under the Constitution, and transfer (s.407), and s.397(3) only bars revision by particular persons in specific circumstances—it does not extinguish the High Court's residual powers.
- On s.402 (transfer provision), the court noted s.402 applies only to revision petitions filed by convicted persons and that its transfer power does not extend to petitions filed by the complainant or prosecution challenging part of a judgment; thus the omission of s.402 in Abraham v. Thankamma did not materially affect that decision's applicability.
- On transitional law under s.484(2)(a), the court rejected the argument that revision petitions are continuations of pending proceedings at the commencement of the new Code: revision is a discretionary invocation of superior courts' supervisory powers and is not a stage of proceedings like investigation, inquiry, trial or appeal. The use of present tense in s.484(2)(a) indicates the provision applies only to the stage then pending; it does not carry later-stage procedural steps into the old Code.
Conclusion of analysis: Given that the Sessions Judge is empowered under the new Code to exercise the powers historically exercised by the High Court in many revisional matters, and given the practical concerns (including the risk of conflicting decisions if concurrent petitions are filed), the court saw no reason why the established rule of practice requiring the aggrieved party to approach the inferior among courts of concurrent jurisdiction first should not apply to revision petitions against orders of acquittal under the new Code.

Holding and Implications

Core Ruling: The petitions challenging orders of acquittal are to be returned to the parties for presentation before the concerned Sessions Judges within three weeks.

Implications and direct effects:

The court applied and extended the established practice (as enunciated in Abraham v. Thankamma and earlier authorities) that where concurrent revisional jurisdiction exists, the aggrieved party should first approach the inferior court (here, the Sessions Judge), to revision petitions challenging orders of acquittal under the new Code.
The Sessions Judge is adjudged competent under the new Code (notably s.399(2)) to exercise the relevant powers that the High Court may exercise under s.401; thus the Sessions Judge can, where justified, interfere with an order of acquittal in revision.
The court emphasized that this direction does not amount to depriving any party of the High Court's supervisory jurisdiction: the High Court retains suo motu powers, superintendence under the Constitution, and the power to regulate its revisional jurisdiction; s.397(3) and s.399(3) do not extinguish those powers.
On transitional issues, the court held s.484(2)(a) does not render revision proceedings a continuation of earlier stages of proceedings for the purpose of keeping them under the old Code; hence the Sessions Judge's competence is not negated by the commencement of the new Code.
No broader new precedent beyond the application of the established rule of practice to acquittal revisions is asserted; the direct, operative consequence is that the present petitions were returned for presentation before the Sessions Judges and were not entertained further by the High Court at that stage.

Order for parties: The petitions are returned to the respective parties for presentation before the concerned Sessions Judges within three weeks.

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Raman Pillay v. Dakshayani

1. The short point involved in these petitions is whether this court should invoke its revisional jurisdiction for examining the correctness, Legality or propriety of the order of acquittal in a case at the instance of the de facto complainant. This court in the decision in abraham v. Thankamma (1975 klt 451) held that revision petitions arising from matters pending in courts subordinate to the sessions judge should at the first instance be filed before the sessions judge. The petitions which came up in abraham v. Thankamma (1975 klt 451) did not relate to acquittal. The present petitions were referred to a division bench since it was contended before the single judge that a revision against the order of acquittal stands on a different footing and as it was urged that s. 402 of the new code of criminal procedure has not been adverted to in the above decision. Before considering these aspects, It may not be out of place to refer generally to the relevant provisions of the old code of criminal procedure and some of the changes effected in the new code.

2. Under the code of criminal procedure, 1898, Powers of revision were conferred on the high court, Sessions judge and the district magistrate under s. 435 and 436. Under s. 435 (4), If any application had been made either to the sessions judge or the district magistrate, No further application was entertainable by the other of them. S. 436 related to cases where effective orders could be made by the sessions judge. In cases where the sessions judge was not competent to make effective orders, He was to send a report to the high court under s. 438 and the high court would pass appropriate orders under s. 439. A practice had been followed by almost every high court that wherever there was concurrent revisional jurisdiction conferred on courts of different grades, The aggrieved party should approach the interior among such courts first and not the high court directly. This practice was being followed in matters falling under s. 436. It is referred to in the decisions in das isaac v. Narayanan (1958 klt 1110) and mohammed bashir v. Iffy (1963 klt 932). In devaki v. Kitta (1967 klt 31) a division bench of this court extended the above principle to all cases under s. 435 and 439 and held that as a salutary practice, The high court would not entertain a revision petition unless the aggrieved party approached the inferior court first. The matter was considered by a full bench in narayanan v. Kannamma bhargavi (1968 klt 495). The full bench disposed of the issue with the following observations:

"we are of the view that it would be improper to compel a party having a strong case in his favour under s. 439 of the code, To approach first the sessions judge or the district magistrate. He should not be compelled to do so except in cases where the sessions judge or the district magistrate is capable of passing effective orders, As in a case of a discharge or dismissal of complaint. In all other revisional matters, The aggrieved party may approach this court direct if so inclined"

though the full bench did not specifically refer to the earlier decision das isaac v. Narayanan (1958 klt 1110) and mohammed bashir v. Iffy (1963 klt 932), The standing practice referred to in those decisions was left unaffected in matters under s. 436 criminal procedure code; that is, Where effective orders could be passed by the sessions judge or the district magistrate.

3. The new code of criminal procedure (act 2 of 1974) effected some changes in the revisional jurisdiction. No powers of revision are conferred on the chief judicial magistrate. In other respects, S. 397 (1) corresponds to s. 435 (1) and s. 398 corresponds to s. 436. S. 397 (3) is worded on similar lines as s. 435 (4) but with the difference that the high court and the sessions judge are substituted in the places of sessions judge and the district magistrate. A bar is also imposed in the exercise of revisional powers in relation to interlocutory orders. S. 399 and 401 deal with the powers of revision of the sessions judge and the high court. It is evident that the restrictions that existed under the old code on the revisional powers of the sessions judge have been taken away and the sessions judge is competent to exercise all or any of the powers that may be exercised by the high court under s. 401. S. 399 (3), However, States that when 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.

4. It was after considering the above provisions that the division bench of this court held in abraham v. Thankamma (1975 klt 451) following narayanan v. Kannamma bhargavi (1968 klt 495) that no party should be allowed to approach this court direct for invoking revisional jurisdiction without moving the sessions judge. There is no need to repeat all the reasons which led to the decision in abraham v. Thankamma (1975 klt 451). The contentions now put forward are three - fold:

(1) the decision does not have application when an order of acquittal is challenged in revision because the high court alone is competent to convert an order of acquittal to one of conviction.

(2) in view of the provision contained in s. 397 (3) and s. 399 (3) the party who approaches the sessions court is deprived of the right to get the issue put forward by him decided by the highest tribunal in the state.

(3) the decision in abraham v. Thankamma (1975 klt 451) has not taken into account s. 402 of the code of criminal procedure.

5. There is not much force in the first contention because the high court is not expected to convert in revision, A finding of acquittal, Into one of conviction. The powers of the high court in this respect are controlled by s. 4010) and the same powers can be exercised by the sessions judge in view of s. 399 (2). Therefore, If there is a case for interference, The sessions judge is competent to deal with it in the same manner as the high court.

6. It is true that the high court is not to entertain a revision petition where a person fails to convince the sessions judge of the existence of a case for interference. To that extent, The person concerned is deprived of an opportunity to have bis case examined by the high court. But such is the position only in matters disposed of by an authority subordinate to the sessions judge. The principle underlying the provision is that in such cases the party should content himself that his case has been examined by a senior officer like the sessions judge, And that there should be finality to the matter, In case the sessions judge concurs with the subordinate judicial officer. A revision case would lie to the high court only in case the sessions judge interferes with the order of the subordinate court. To say that every person should have the privilege of filing revision petition before the high court at the first instance is to make the revisional powers of the sessions judge otiose. It is not correct to say that by directing that revision petitions against orders of subordinate courts should be filed before the sessions judge, A party is deprived of the right to approach the high court, Because as in the case of the old criminal procedure code, Under the new code also the revisional jurisdiction of the high court does not create a right in the litigant but only conserves the power of the high court to see that justice is done in accordance with recognised rules of criminal jurisprudence (see p. K. Mitra v. State of west bengal (air. 1959 s. C. 144). S. 403 of the new code like s. 440 of the old code denies the parties the right to be heard even in cases where revision petitions are filed by them. That a party to a proceeding, Not to say a de facto complainant has no special right to file a revision petition is evident from the fact that the expression'party to a proceeding' does not find a place in s. 397 to 401. The word used is 'person', Which word includes parties to the proceedings, De facto complainant as also strangers. What the petitioner in such cases does is only to bring the alleged irregularities to the notice of the superior court so that that court by invoking its revisional jurisdiction may examine the position and pass appropriate orders. Though high court has powers of revision in all cases, It is open to it to regulate the exercise thereof and direct that in matters within the revisional jurisdiction of the sessions judge the persons concerned should first approach the sessions judge. It is to be noted in this connection that s. 397 (3) only puts a bar against the exercise of revisional powers on a motion by particular persons. The power of interference suo mote on perusal of calendars or under s. 482 criminal procedure code to prevent abuse of the process of any court or otherwise to secure the ends of justice or the power of superintendence conferred on the high court under the constitution remain unaffected. What is laid down in abraham v. Thankamma (1975 klt 451) and earlier cases is only a rule of practice and expediency.

7. It is a fact that s. 402 of the new code has not been referred to in the decision in abraham v. Thankamma (1975 klt 451). But the omission may not make any difference. S. 402 has application only in the case of revision petitions filed by convicted persons. If some of the convicted persons in a case file revision petitions challenging their conviction before the sessions judge while some others file before the high court, S. 402 confers on the high court the power of transfer so that all such petitions are decided either by the sessions judge or by the high court. But significantly, If against the judgment in the same case, The complainant or the prosecution also files a revision petition challenging a portion thereof the power of transfer under s. 402 does not extend to such a petition. To cite another instance, If in a maintenance case, The husband files a revision petition before the sessions judge challenging the order directing him to pay maintenance and the wife files a revision petition before the high court challenging the quantum or the rate of maintenance, S. 402 does not confer on the high court the power to transfer. In the above referred cases, If the high court omits to exercise the general power of transfer under s. 407 in time, There would be chances of conflict of decisions. Such situations would be avoided by resorting to the rule of practice in abraham v. Thankamma (1975 klt 451).

8. A further argument based on s. 484 of the new code of criminal procedure has been raised by some of the petitioners. In two of the cases, The charge - sheets had been filed and the trial had commenced before the coming into force of the new code and in one case, The offence was under investigation when the new code became law. It is contended that in these cases no effective order could have been passed by the sessions judge in relation to the order of acquittal in view of s. 484 (2) of the new code the relevant portion of s. 484 (2) reads:

"notwithstanding such repeal

(a) if, Immediately before the date on which this code comes into force, There is any appeal, Application, Trial, Inquiry or investigation pending, Then, Such appeal, Application, Trial, Inquiry or investigation shall be disposed of, Continued, Held or made, As. The case may be, In accordance with the provisions of the code or criminal procedure, 1898 (5 of 1898) as in force immediately before such commencement (hereinafter referred to as the old code), As if this code had not come into force:

provided that every inquiry under chapter xviii of the old code, Which is pending at the commencement of this code shall be dealt with and disposed of in accordance with the provisions of this code;"

the argument is that a revision petition should be considered to be a continuation of the proceedings pending at the time of the commencement of the code. There is no force in the contention. In the first place, An application for revision is only a step in aid for invoking the powers of superintendence by the sessions judge and the high court for correcting irregularities, If any, In the judgments and orders of the subordinate courts. Interference in revision being a discretionary power vested in the superior courts a revision petition cannot be considered to be a continuation of the proceedings pending in the trial court or the appellate court. Secondly, The code of criminal procedure envisages different stages between detection of an offence and the ultimate conviction of the offender. These are contained in the provisions relating to investigation, Inquiry, Trial and appeal. The present tense used in s. 484 (2) (a) makes it clear that the said provision has application only to the stage at which the proceedings were pending at the commencement of the code. To illustrate, In a case where investigation was pending at the time of the commencement of the code, Such investigation alone could be continued as provided in the old code and not the subsequent inquiry or trial. That this is so, Is evident from the words "as the case may be". A contrary reasoning may even lead to the conclusion that all offences which were being investigated at the commencement of the code should be tried under the old code, Which could not be the intention of the legislature. The interpretation put to s. 484 (2) (a) in natabar panda v. State of orissa (air. 1975 s. C. 1465) does not stand counter to what is stated above.

we do not see any reason why the rule of practice that when concurrent jurisdiction is conferred on courts of different grades, The aggrieved party should approach the inferior among them first and not high court direct, Which has been referred to in isaac v. Narayanan (1958 klt 1110) and followed in abraham v. Thankamma (1915 klt 451) should not be applied in the case of revision petitions filed under the new code of criminal procedure against orders of acquittal. These petitions are therefore returned to the respective parties for presentation before the concerned sessions judges. Time for representation three weeks.

Raman Pillay v. Dakshayani

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Contentions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Raman Pillay v. Dakshayani

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