Sessions Judge’s powers of revision – Sec 399 of CrPC

The Code of Criminal Procedure 1973

• Revision against Order, finding or Sentence
• Revision against and Irregular Proceeding
• Revision against the Magistrate disposing of a case having no jurisdiction

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 sub-section (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.

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.

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.

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Case of interlocutory order which could be corrected in exercise of criminal revisional power

In the case of Madhu Limaye v. the State of Maharashtra (AIR 1978 SC 47) (supra) a distinction has been made between an order which is purely interlocutory which could be corrected in exercise of revisional power and an order though interlocutory which results in the abuse of the process of the Court and/or calls for interference to secure the ends of justice.

Revisional Power of High Court u/s 401 of Cr.P.C

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461. Irregularities which vitiate proceedings

If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:—

(a) attaches and sells property under section 83;

(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;

(c) demands security to keep the peace;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order for maintenance;

(h) makes an order under section 133 as to a local nuisance;

(i) prohibits, under section 143, the repetition or continuance of a public nuisance;

(j) makes an order under Part C or Part D of Chapter X;

(k) takes cognizance of an offence under clause (c) of sub-section (1) of section 190;

(l) tries an offender;

(m) tries an offender summarily;

(n) passes a sentence, under section 325, on proceedings recorded by another Magistrate;

(o) decides an appeal;

(p) calls, under section 397, for proceedings; or

(q)revises an order passed under section 446,

his proceedings shall be void.

322. Procedure in cases which Magistrate cannot dispose of

(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption—

(a) that he has no jurisdiction to try the case or commit it for trial, or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

(c) that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the case, with a brief report explaining its nature to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.

 Check Criminal Revision

Law under  Code of Criminal Procedure, 1898   [India, now repealed]

SECTION 435: Power to call for records of inferior Courts

State Amendments ANDHRA PRADESH (Added Territories).-The amendments made in Section 435 by Madurai Act XXXIV of 1955 shall stand repealed. GUJARAT.-Same as that of Maharashtra (1) subject to certain modifications for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted. MAHARASHTRA.-(1) Substitute for Section 435 the following:

“435. (1) The High Court or any Sessions Judge other than the Sessions Judge of the Court of Session for Greater Bombay may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his 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 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,

(2) The District Magistrate or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceedings before any subordinate Executive Magistrate for the purpose of satisfying himself as to the correctness, legality or propriety of any order recorded or passed and as to the regularity of any proceedings of such Subordinate Magistrate and may, when calling for such record, direct that the execution of any order be suspended and if the person is in confinement that he be released on bail on his own bond pending the examination of the record,

(3) If any Sub-divisional Magistrate acting under sub-section (2) considers that any such proceeding or order is illegal or improper he shall forward the record with such remarks thereon as he thinks fit to the District Magistrate.

(4) The High Court may call for and examine the record of any proceeding in respect of an order made under sections 118, 122, 143, 144 or 145, notwithstanding the fact that such proceeding was before an Executive Magistrate or the Commissioner of Police, as the case may be.” (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 435 by the above-mentioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of 1958. MYSORE (t) in sub-section (1), the words “or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf” and the explanation to the said sub-section are omitted, and (ii) sub-sections (2) and (4), emitted. PUNJAB, HARYANA and CHANDIGARH.-In Section 435,- (i) In sub-section (1), for the words “or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf”, substitute the words “or Chief Judicial Magistrate”; and (ii) for sub-sections (2) and (4) the following sub-sections shall be substituted “(2) Same as sub-section (2) in Section 435 in Maharashtra (1). (3) Same as sub-section (3) of Section 435 in Maharashtra (1). (4) Same as sub-section (4) of Section 435 in Maharashtra (1). excluding the words at the end namely “or the Commissioner of Police as the case may be”. (5) If an application under sub-section (1) has been made cither to the Sessions Judge or the Chief Judicial Magistrate no further application shall be entertained by the other of them,” RAJASTHAN (Abu Area).-Same as that of Maharashtra (1). TAMIL NADU.-After the words “any Sessions Judge” insert the words “other than the sessions Judge in the City of Madras”.

UNION TERRITORIES (except Chandigarh).-For Section 435, substitute the following, namely: “435. Power to call for records of Inferior Courts.-(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 the local limits of its or his jurisdiction and any Chief Judicial Magistrate may call for and examine the record of any proceedings before any Judicial Magistrate under his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality, or property of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court or such Magistrate, as the case may be, 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. (2) Same as that of Maharashtra (2). (3) Same as that of Maharashtra (3). (4) Same as that of Punjab (4). (5) If an application in respect of any proceeding before any Judicial Magistrate other than the Chief Judicial Magistrate has been made under sub-section (1) either to the Sessions Judge or the Chief Judicial Magistrate, no further application shall be entertained by the other of them and if an application in respect of any proceeding before any Executive Magistrate has been made to the Sessions Judge under sub- section (1) or to the District Magistrate under sub-section (2), no further application shall be entertained by the other of them.”

UTTAR PRADESH.-Delete the words “whether exercising original or appellate jurisdiction from the Explanation.

WEST BENGAL.-In Section 435,- (1) in sub-section (1), for the words “District Magistrate, or any Sub-divisional Magistrate empowered by the State Government” substitute the words, “any Sub-divisional Judicial Magistrate empowered by the State Government, in consultation with the High Court;” (2) in sub-section (2), for the words “Sub-divisional Magistrates” and “District Magistrate”; substitute the words “Sub-divisional Judicial Magistrates” and “Sessions Judge”) respectively; (3) in sub-section (4), for the words “District Magistrate”, substitute the words “Sub-divisional Judicial Magistrate”; and (4) after sub-section (4), insert the following sub-sections, namely : “(5) Any District Magistrate or any Sub-divisional Executive Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any Subordinate Executive Magistrate for the purpose of satisfying himself, as to the correctness legality or propriety of any order recorded or passed and as to the regularity of any proceeding before such subordinate Magistrate and may, when calling for such record, direct that the execution of any order be suspended and if the person is in confinement, that he be released on bail or on his own bond pending the examination of the record. (6) If any Sub-divisional Executive Magistrate, acting under sub-section (5) considers that any such proceeding or order is illegal or improper, he shall forward the record with such remarks thereon as he thinks fit to the District Magistrate.”

Notes -It is hardly necessary to say that when an appeal is found as time-barred and there is so sufficient cause for condonation, the only result that can follow is the dismissal of the appeal, The Sessions Judge, before invoking the revisional powers of the High Court by referring the case must examine the record of the inferior Courts, 1960 MLJ (Cr) 157, In a case which has proceeded on a police report a private party cannot invoke jurisdiction under Section 435. AIR 1966 SG 911: 1966 Cr LJ 700. The High Court has ample power to review its own prior order in revision when the Sessions Court negatives the plea offered by the accused under Section 403 on the case again being sent for retrial by the High Court, on charges of murder and dacoity of which he had already been acquitted by the Sessions Courts. 1959Andh LT 351: AIR 1960 AP 1 (FB). For powers of the High Court in revision. See Section 369 supra. AIR 1960 AP 1 (FB). In a case of violation of order under Section 144, the person arrested can apply under Section 435 before waiting for conviction under Section 188, Penal Code. See Section 144 supra. AIR 1961 Mani 12. Practice of the Allahabad High Court has always been not to entertain revision application unless lower court has first been approached. 1960 All LJ497: 1960 Cr LJ 1301: AIR 1960 All 636. For jurisdiction of Sessions Judge, see Section 436 supra. 1960 Cr LJ59: AIR 1960 Cal 58. Powers of the High Court in revision while dealing with the cases of acquittal. -The ambit of the powers of the High Court under Sections 435 and 439, Cr. P.C, in dealing with the cases of acquittal has been explained by this court in more than one decision. Ibrahim Haji Moidee, Ummer Haji v. Food Inspector, Nileshwar, 1969 (3) SCC 901. That the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under Section 242, Cr. P.C. but even so here when the accused appeared before anything was done the accused filed preliminary objections and no particulars of the offence of which the accused was charged were even stated to him (Revision maintainable). Municipal Council, Raipur v., State of Madhya Pradesh, 1969 (2) SCC 582.

High Court’s power-Reversal on facts-Propriety.-The powers of the High Court under Section 439, Cr. P.C., although wide are subject to certain limitations. Section 439(4) expressly provides that the section shall not be deemed to authorise the High Court to convert a finding of acquittal into one of conviction, The High Court proceeded to re-appraise the evidence of the witnesses and upset the finding of the Magistrate therein on the ground that he “had not taken the trouble of sifting the grain from the chaff”. Clearly such a course is not permissible under Section 439, Cr. P.C. The facts and circuinstances of this case do not warrant the ordering of a re-trial by the High Court if it felt disposed to exercise powers under Section 423, Cr. P.C. expressly included in Section 439. Khetrabasi Samual v. State of Orissa, 1969 (2) SCC 571 : AIR 1970 SC 272 : 36 Cut LJ 86.

(1) The High Court or any Sessions Judge or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his 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 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 437].

(2) If any Sub-divisional Magistrate acting under sub-section (1) considers that any such finding, sentence or order is illegal or improper, or that any such proceedings arc irregular^ he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate. * * * * * *

(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.

SECTION 439: High Court’s powers of revision:

State Amendments

UNION TERRITORIES (except Chandigarh).-In sub-section (3) of Section 439 for the words “a Magistrate of the first class”, substitute the words “a Judicial Magistrate of the first, class”.

WEST BENGAL.-For the words ‘a Magistrate’, substitute the words “a Judicial Magistrate”.

Notes – Where the District Magistrate has allowed revision of an order of dismissal to succeed after hearing accused, the complainant cannot object to the locus standi of the accused in his revision petition before the High Court. 1959 Cr LJ 620 : AIR 1959 Mys 118, Where, in a criminal revision the High Court finds that the accused is entitled to succeed by giving a finding on one of the two points raised by him, the other point involved being the validity of a notification, the High Court will not consider the second point. 1960 Cr LJ 1141: AIR 1960 Tri 25. The revisional Court will not go into the question of fact as regards the interestedness and the reliability of witnesses when both the Courts below have accepted their testimony, 1960 Cr LJ 1078 : AIR 1960 Cal 519. Ordinarily, the Madras High Court, being its practice, will not interfere in revision until the order of the lower Court fixing the quantum of maintenance. 1960 Cr LJ 1098: AIR 1960 Mad 348. Where allegations made by the prosecution do not disclose any offence, it is improper to order re-trial so as to enable prosecution to supply deficiencies in their original case by allegaing and proving further facts. 1960 Cr LJ 1083 : AIR 1960 J and K 106. The powers of Sessions Judges and District Magistrates to interfere, see Section 423 supra. IS Cr LJ 879 : AIR 1960 All 436. High Court will not accept explanation of defence in revision if it has not been accept by lower courts. 1960 Cr LJ 1585 : AIR 1960 Guj 37. Far when should the High Court exercise extraordinary powers, see Section 561-A infra. 1960 Cr LJ 300 ; AIR 1960 All 176. Far .order under Section 517 in respect of the disposal of property, see Section 423(l)((d) supra 1960 Cr LJ 636 : AIR 1960 Pat 232. Ordinarily, the revisional court does not interfere with the findings of fact unless such finding is based on disregard of fundamental rules of evidence. 1959 Ker LJ 988 : 1960 Cr LJ 476 : AIR 1960 Ker 119. Where in a prosecution by the Executive Officer of the Panchayat the accused was acquit- ted and no necessary steps to prefer an appeal were taken, sub-section (5) of Sectional stands against the petitioner in preferring a revision petition. (1960) MLJ (Cr) 379. Ordinarily the High Court would be reluctant to interfere in revision with findings of fact unless the circumstances are such as to rouse the conscience of the Court. ILR (1957)9 Ass 389: 1960 CrLJ 317: AIR 1960 Ass 37. Subject to the limitations laid down by Section 439(4) Cr. P. C. the High Court has the power to interfere with an order of discharge passed in the police challan case, at the instance of a private complainant, where there has been misapprehension of the law on the part of the courts below. 1960 MPLJ 443 : 1960 Cr LJ 609 : AIR 1960 MP 149. Where the High Court is satisfied as to the illegality of the sentence awarded, it will interfere in the matter and award a proper sentence. To decline to interfere will amount to perpetuate the same. 1959 Ker LJ 850 : 1960 CrLJ 592: AIR 1960 Ker 147. Pure question of law, even if it is a new point, can very well be raised even for the first time in the High Court in revision. 1960 Cr LJ 636 : AIR 1960 Pat 232. Whether Section 144(4) is bar to direct revision to High Court, see Section 144 supra AIR 1961 Mani 12. For powers of High Court in a revision petition questioning order under Section 144, see Section 144 supra. AIR 1961 Mani 12. A new question of fact cannot be allowed to be set up in revision. ILR (1959)9 Raj 1160 : CrLJ 1136: AIR 1960 Raj 213. Whether a prosecution is expedient in the interest of justice or not, the time factor is no doubt a relevant consideration but it is by no means a conclusive one. 1960 Cr LJ 560 : AIR 1960 AP233. Even apart from the provisions of Section 369, Cr. P. C. finality attaches to orders passed by a High Court in appeals and criminal revisions and it is not open to the same High Court to alter or review the same. 1959 Andh LT 351 : AIR 1960 AP 1 (FB).

As a general rule the High Court will not in revision interfere with a finding of fact and this is specially so, in the case of concurrent findings of fact by the lower courts. 1960 KLJ 842 : (1961) Cr LJ 70 : AIR 1961 Ker 8. Order by Magistrate on basis of case diaries and other material that accused should be up for trial without departmental enquiry being finished, is not proper. See Section 190(1) (b) (1961)1 AWR 139. Where in a police case the accused is acquitted and the State do not consider a further trial of the case to be in the interest of justice, the High Court certainly would not revive the case at the instance of an aggrieved party in a revision petition filed by the latter. (1961) I Cr LJ 441: AIR 1961 Tri 12. Revisional powers of the High Court under Section 439 are certainly wider in scope than the writ jurisdiction under Article 32 of the Constitution, AIR 1961 Mani 12. For action by the High Court in ordering the transfer of the appeal pending before the Sessions Judge and upholding the conviction, dismissing the appeal and enhancing the sentence, See Section 435 supra AIR 1960 SC 154. Objection as to the order being properly published is to be gone into proceedings under section 188, Penal Code started against accused and not in revision petition, see Section 144 AIR 1961 Mani 12.

The High Court ordinarily would not interfere at the instance of a private complaint in a Police challan case, but such powers could be exercised in exceptional cases. 1960 PLJ (Notes) 215. There is no legal bar to the High Court entertaining revision applications from persons who are not directly affected by the illegality or irregularity. The only limitation for a revision application is that no appeal could have been filed. AIR 1961 All 447. It would be open to the High Court to set aside an acquittal even at the instance of a private party even though the State may not have appealed but such jurisdiction should be exercised in very exceptional circumstances and only 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 ofjustice. 1963 AWR (SC) 56. The Additional Sessions Judge has no authority to set aside the acquittal under Section 437. But the order of the Sessions Judge setting aside acquittal of accused affirmed by High Court in revision is not ultra vires Section 437 and the High Court has jurisdiction by itself to interfere with order of acquittal in revision and direct retrial of accused on graver offence, AIR 1967 SC 1156 : 1967 Cr LJ 1076. After an enquiry under Section 476, Cr. P. C. the Magistrate ordered the filing of the complaint against the appellant regarding offences under Sections 205, 467, 468 read with 114 I P C. In appeal the Additional Sesslons Judge held complaint justified in respect of offence under Section 205 read with 114 I.P.C. and complaint in respect of offence under sections 467, 468 read with Section 114 was not justified. The dismissal of revision by the High Court grant against the order of the Additional Sessions Judge in respect of complaint under Section 205 read with 114 I.P.C. was held to be final and the High Court had no jurisdiction to grant certificate of fitness to appeal to the Supreme Court under Article 134(l)(c) of the Constitution. Mohanlal v. State ofGujarat, AIR 1968 SC 733 at 738. Grounds on which the High Court in exercise of the power of revision can set aside an order of acquittal and to order retrial-explained D. Stephens v. Nosibolla, 1951 SCR 254: AIR 1951 SC 196; Logendranath Jha v. Polailal Biswas, 1951 SCR 676: AIR 1951 SC 316; K. Chinnswamy Reddy v. State of A. P., (1963)3 SCR 412: AIR 1962 SC 1788; Bhanwar Singh v. State of Rajasthan, AIR 1968 SC 707. High Court’s power-Reversal on facts-Propriety.-The powers of the High Court under Section 439, Cr. P. C. although wide are subject to certain limitations. Section 439(4), expressly provides that the Section shall not be deemed to authorise the High Court to convert a finding of acquittal into one of conviction. The High Court proceeded to re-appraise the evidence of the witnesses and upset the evidence of the witnesses and upset the finding of the Magistrate thereon on the ground that the “had not taken the trouble of sifting the grain from the chaff”. Clearly such a course is not permissible under Section 439 Cr. P. C. The facts and circumstances of this case do not warrant the ordering of a re-trial by the High Court if it felt disposed to exercise powers under Section 423) Cr. P. C. expressly included in Section 439. Khetrabasi Samwlv. State ofOrissa, (1969)2 SCO 571: AIR 1970 SCC 272 : 36 Cut LJ 86.

(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High It may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections * * * 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.

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

(3) Where the sentence dealt with under this section has been passed by Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.

(4) Nothing in this section applies to an entry made under Section 273) or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(5)Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.]

The Limitation Act 1963