CHAPTER XXX - REFERENCE
AND REVISION
395. Reference to High Court.
(1)
Where any Court is satisfied that a case pending before it involves a question
as to the
validity
of any Act, Ordinance or Regulation or of any provision contained in an Act,
Ordinance
or
Regulation, the determination of which is necessary for the disposal of the
case, and is of
opinion
that such Act, Ordinance, Regulation or provision is invalid or inoperative,
but has not
been
so declared by the High Court to which that Court is subordinate or by the
Supreme Court,
the
Court shall state a case setting out its opinion and the reasons therefor, and
refer the same for
the
decision of the High Court.
Explanation.—In this section,
"Regulation" means any Regulation as defined in the General
Clauses
Act, 1897 (10 of 1897), or in the General Clauses Act of a State.
(2)
A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in
any case pending
before
it or him to which the provisions of sub-section (1) do not apply, refer for
the decision of
the
High Court any question of law arising in the hearing of such case.
(3)
Any Court making a reference to the High Court under sub-section (1) or
sub-section (2)
may,
pending the decision of the High Court thereon, either commit the accused to
jail or release
him
on bail to appear when called upon.
396. Disposal of case according to decision of High Court.
(1)
When a question has been so referred, the High Court shall pass such order
thereon as it
thinks
fit, and shall cause a copy of such order to be sent to the Court by which the
reference was
made,
which shall dispose of the case conformably to the said order.
(2)
The High Court may direct by whom the costs of such reference shall be paid.
397. Calling for records to exercise powers of revision.—
(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.
Explanation.—All Magistrates,
whether Executive or Judicial, and whether exercising original
or
appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge
for the purposes of
this
sub-section and of section 398.
(2)
The powers of revision conferred by sub-section (1) shall not be exercised in
relation to any
interlocutory
order passed in any appeal, inquiry, trial or other proceeding.
(3)
If an application under this section 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.
Comments
(i)
When any revision in High Court is dismissed on the ground of limitation High
Court can
exercise
power of revision suo moto under section 397; Municipal
Corporation of Delhi v.
Girdhari Lal Sapru, AIR 1981
SC 1169: (1981) Cr LJ 632: (1981) 2 SCC 758: (1981) SCC (Cr)
598.
(ii)
Where both Sessions Judge and High Court having concurrent powers, second
revision
would
not be competent under section 397 (3); Asghar
Khan v. State of Uttar Pradesh, AIR 1981
SC
1697: (1981) Cr LR SC 481.
398. Power to order inquiry.
On
examining any record under section 397 or otherwise, the High Court or the
Sessions Judge
may
direct the Chief Judicial Magistrate by himself or by any of the Magistrates
subordinate to
him
to make, and the Chief Judicial Magistrate may himself make or direct any
subordinate
Magistrate
to make, further inquiry into any complaint which has been dismissed under
section
203
of sub-section (4) of section 204 or into the case of any person accused of an
offence who
has
been discharged:
Provided
that no Court shall make any direction under this section for inquiry into the
case
of any person who has been discharged unless such person has had an opportunity
of
showing
cause why such direction should not be made.
Comments
It
is well settled that the only order that can be made by the revising Court
under section 398 is
for
further enquiry; Harun Khan v. Mahesh Chand, (1997) 2 Crimes 301 (MP).
399. Sessions Judge's powers of revision.
(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 section 401.
(2)
Where any proceeding by way of revision is commenced before a Sessions Judge
under subsection
(1),
the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so
far as may
be,
apply to such proceeding and references in the said subsections 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.
Comments
It
is settled law that no order to the prejudice of an accused or any other person
can be made
unless
the said accused or the said person has been given an opportunity of being
heard; mohd.
Afzal v. Noor Nisha Begum, (1997) 2
Crimes 493 (Del).
400. Power of Additional Sessions Judge.
An
Additional Sessions Judge shall have and may exercise all the powers of a
Sessions Judge
under
this Chapter in respect of any case which may be transferred to him by or under
any
general
or special order of the Sessions Judge.
401. High Court's powers of revision.
(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 sections 386, 389, 390 and 391 or on a Court
of
Session
by section 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 section
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.
Comments
(i)
When High Court adjourned all cases of a particular Advocate for some period it
was wrong
on
part of High Court to pass ex parte order in revision application in which that particular
Advocate
was appearing; Chandraeshwar Nath Jain v. State of Uttar Pradesh, AIR 1981 SC
2009:
(1981) Cr LJ 1690: (1981) SCC (Cr) 609.
(ii)
High Court was not justified in interfering with current findings of fact and
acquitting
accused
in offence of criminal breach of trust; State
of Karnataka v. Maygowda, AIr 1982 SC
1171:
(1982) Cr LJ 1397: (1981) 4 SCC 429: (1981) SCC (Cr) 849: (1982) Cr LR (SC) 39.
(iii)
When accused acquitted without considering material evidence with inconsistent
and faulty
reasonings
and probative value of FIR also ignored, High Court was justified in directing
retrial;
Ayodhya Dube v. Ram Sumer Singh, AIR
1981 SC 1415: (1981) Cr LJ 1016: (1981)
Cr
LR (SC) 430.
(iv)
When complaint makes out prima facie case in proceeding instituted against partnership firm
along
with its partners and its managing partner dies, High Court should not quash
proceeding;
Drugs Inspector v. B.K.A. Krishnaiah, AIR 1981
SC 1164: (1981) Cr LJ 627: (1981) 2 SCC 454:
(1981)
SCC (Cr) 487: (1981) Cr LR (SC) 196.
(v)
In absence of any statutory provision High Court cannot award sentence below
the prescribed
minimum
under any special circumstances; State
of Andhra Pradesh v. R. Ranga Damappa, AIR
1982
SC 1492.
(vi)
The revisional jurisdiction when involved by a private complainant against an
order of
acquittal
ought not to be exercised lightly and that it could be exercised only in
exceptional case
where
the interests of public justice require interference for the correction of a
manifest illegality
or
the prevention of a gross miscarriage of justice; Kaptan Singh v. State of Madhya Pradesh,
(1997)
4 Supreme 211.
402. Power of High Court to withdraw or transfer revision cases.
(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
application 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 the any other Court
at the
instance
of the person or persons whose applications for revision have been disposed of
by the
Sessions
Judge.
403. Option of Court to hear parties.
Save
as otherwise expressly provided by this Code no party has any 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, hear any party either personally or by
pleader.
404. Statement by Metropolitan Magistrate of grounds of his
decision to be considered by
High Court.
When
the record of any trial held by a Metropolitan Magistrate is called for by the
High Court or
Court
of Session under section 397, the Magistrate may submit with the record a
statement
setting
forth the grounds of his decision or order and any facts which he thinks
material to the
issue;
and the Court shall consider such statement before overruling or setting aside
the said
decision
or order.
405. High Court's order to be certified to lower Court.
When
a case is revised under this Chapter by the High Court or a Sessions Judge, it
or he shall,
in
the manner provided by section 388, certify its decision or order to the Court
by which the
finding
sentence or order revised was recorded or passed, and the Court to which the
decision or
order
is so certified shall thereupon make such orders as are conformable to the
decision so
certified;
and, if necessary, the record shall be amended in accordance therewith.
