High Court vs Sessions Judge: Criminal Revision under BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023

The article provides the procedural laws in the context of criminal justice, specifically addressing the powers of revision of the High Court and the Sessions Judge over inferior courts. it is to be noted that a Revision is to be filed within 90 days of the impugned order. High Court deals with interlocutory orders under Section 482 of the old CrPC (inherent power.). A criminal revision was available under Sections 397(1) and 401 of the CrPC. K.Ramachandran v. V.N.Rajan & Anr. [2009(5) Supreme 751], a case dealing with the revision against acquittal.

Here’s a brief analysis and summary of the key points:

Section 438: Calling for Records to Exercise Powers of Revision

1. Purpose:
   • The High Court or Sessions Judge can call for records of proceedings from any inferior criminal court within their jurisdiction.
   • The aim is to ensure the correctness, legality, or propriety of findings, sentences, or orders.
   • The High Court to exercise revisional power, in its discretion, any of the powers conferred on a court of appeal excludes the power to “convert a finding of acquittal into one of conviction”
2. Suspension of Sentence/Order:
   • While examining the record, the execution of any sentence or order can be suspended.
   • If the accused is confined, they may be released on bond or bail during the examination.
3. Explanation:
   • All Magistrates (Executive or Judicial, with original or appellate jurisdiction) are considered inferior to the Sessions Judge for this purpose.
4. Limitations:
   • Revisionary powers cannot be exercised for interlocutory orders (temporary orders during an appeal, inquiry, trial, or proceeding). “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath;
   • If one revision application is made to the High Court or Sessions Judge, the other cannot entertain the same.

Section 440: Sessions Judge’s Powers of Revision

1. Scope of Powers:
   • The Sessions Judge has similar powers to those of the High Court when exercising revisionary jurisdiction.
   • These include examining procedural or substantive irregularities in the inferior court’s decision.
2. Applicability of High Court Rules:
   • Provisions from Section 442 (High Court’s revision rules) are applied to Sessions Judge proceedings where relevant.
3. Finality:
   • A decision by the Sessions Judge in revision proceedings is final, and no further revision can be sought in the High Court for the same matter.

Section 442: High Court’s Powers of Revision

1. Scope of Revision:
   • The High Court can exercise its revision powers when:
     • It calls for a record.
     • It becomes aware of proceedings through other means.
   • It has the discretion to use the powers of an appellate court (as per Sections 427, 430, 431, and 432) or a Court of Session (Section 344).
   • 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 427, 430, 431 and 432 (of BNSS) or on a Court of Session by section 344, 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 433.
2. Equality in Opinions:
   • If judges are equally divided in opinion during a revision case, the matter is resolved as per Section 433.
3. Safeguards for Accused:
   • No adverse order can be passed against the accused unless they are given a chance to be heard personally or through an advocate.
4. Limitations:
   • The High Court cannot convert an acquittal into a conviction.
   • If an appeal lies in a case but the party did not file one, they cannot file for revision.
5. Erroneous Belief:
   •  Where under the Sanhita 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.

Key Observations

• The revisionary powers of both the High Court and Sessions Judge are designed to act as supervisory mechanisms over inferior courts to correct errors in law or procedure.
• However, the law places safeguards to prevent misuse or repeated applications by the same person for the same issue.
• Special emphasis is given to protecting the rights of the accused during revisionary proceedings.

Comment

In K.Pandurangan vs S.S.R.Velusamy & Anr (AIR 2003 SUPREME COURT 3318) Under the provisions of the Code of Criminal Procedure, 1973, the court has suo moto power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect the power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan vs. The State (Delhi Administration), (AIR 1976 SC 2205).

The High Court in a given case of public importance e.g. is now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by rearrangement of the sections. It is true the new Code has expressly given a right to the State under s.377 Cr. P.C. to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. (Nadir Khan vs. The State of Delhi Administration). The High Court, as an effective instrument for the administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code.

In Sheo Nandan Paswan v. State of Bihar and others, [AIR 1987 Supreme Court 877]: It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book.

Jagannath Choudhary and others v. Ramayan Singh and Another, [2002 Supreme Court Cases (Cri) 1181]. “11. The High Court possesses a general power of superintendence over the actions of courts subordinate to it. On its administrative side, the power is known as the power of superintendence. On the judicial side, it is known as the duty of revision. The High Court can at any stage even on its own motion, if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them. This right of the High Court is as much a part of the administration of justice as its duty to hear appeals and revisions and interlocutory applications – so also its right to exercise its powers of administrative superintendence”.

In case of Akalu Ahir and Ors. v. Ram Deo Ram, [1975 LW(Crl.)235], the Hon’ble Apex Court has reiterated the proposition as can be seen from the following:

“9. In the present case also we feel that the High Court has re-weighed the evidence from its own point of view and though at the outset it noticed the correct legal position and expressly acknowledged the limits within which it was called upon to decide whether or not to interfere with the order of acquittal, in actual practice, it does not seem to have attended to the rules laid down by this Court in the four decisions noticed by it. As observed in D. Stephen case the revisional jurisdiction under Section 439 CrPC is not to be lightly exercised when invoked by a private party against an order of acquittal against which the Government has a right of appeal under Section 417. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on record. Again, as pointed out in the Logendranath Jha case (1951 AIR 316) when Section 439(4) specifically excludes the power to “convert a finding of acquittal into one of conviction”, the High Court cannot, when dealing with a revision petition by a private party against an order of acquittal, in the absence of any error on a point of law, re- appraise the evidence and reverse the findings of fact on which the acquittal was based by resorting to the device of stopping short of finding the accused guilty and passing sentence on him. This would be a subterfuge impermissible in out judicial process”.

This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterising the judgment of the trial Court as “perverse” and’ lacking in perspective”, the High Court cannot reverse pure findings of fact based on the trial Court’s appreciation of the evidence in the case (Logendranath Jha case ( SC 1951 AIR 316).

The below judgments cited highlight the principles governing the powers of the High Court in exercising revisionary jurisdiction, particularly in the context of acquittals. Below are the key takeaways from the judgments and their implications:

1. Principles Governing Revisional Jurisdiction:

• Nosibolla ([1951] 1 SCR 284): The Supreme Court held that the High Court can set aside an acquittal in revision only in cases of manifest illegality or gross miscarriage of justice on the application of a private person. Mere errors in legal interpretation or evidence misappreciation are insufficient grounds for interference.
• Logendranath Jha v. Polailal Biswas (1951): The High Court may interfere when:
  • There is an error on a point of law.
  • There is no appraisal of evidence at all.
  • It emphasized that terms like “perverse” or “lacking in perspective” are inadequate to justify a retrial.

2. Limits of Revisional Powers:

• Section 439(4) CrPC (old code): Prohibits the High Court from converting an acquittal into a conviction in a revision petition. Even indirectly ordering a retrial while reversing findings of fact based on evidence is cautioned against.
• The principle ensures that the accused are not prejudiced or subjected to harassment by reopening settled matters without compelling reasons.

3. Landmark Applications of These Principles:

• K.C. Reddy v. State of Andhra Pradesh (1963): High Court interference is permissible only in glaring cases where procedural or legal violations result in a miscarriage of justice.
• Akalu Ahir v. Ramdeo Ram (1973): Categorized cases where revisional interference may be justified, reinforcing prior rulings on the High Court’s limited jurisdiction.

4. Judicial Restraint in Retrial Orders:

• High Courts must exercise extreme caution when ordering retrials, as such orders inherently disadvantage the accused. Even when retrial is deemed necessary, the High Court must ensure its observations do not influence the subordinate judiciary’s reconsideration of the evidence.

5. Recent Applications of Precedents:

• Cases like Javed Ahmad Bhat v. State of J&K (2022) and Udaibir Singh v. Sunil Kumar (2023) continue to underscore the need for sparingly exercising revisional powers. High Courts must balance justice for the accused with ensuring the trial process adheres to fundamental legal principles.
• In K. Chinnaswamy Reddy vs. State of Andhra Pradesh : [1963] 3 SCR 412, Apex Court observed:- It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have though fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.
• Revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in a flagrant miscarriage of justice. (Satyajit Banerjee vs. State of W.B. : (2005) 1 SCC 115)

BNSS- 2023