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.
This section authorizes Courts mentioned therein to ask for records of subordinate criminal Courts and scrutinize them for the purpose of convincing themselves as to whether a finding, sentence or order of such subordinate Court is proper, correct or legal, or whether all the procedures of such subordinate Courts are regular. When the revision was impending on the date of enforcement of the new Code, saving provisions of S. 482(2) of the Code of (1973) were attracted and the impugned order of the revisional court under S.435 of Code of (1898) would be considered to have been passed, further revision petition to the Chandigarh High Court by the same individual was sustainable.
High Court is not barred from entertaining and exercising its revisional jurisdiction where it is not exercised by Sessions Judge. In case the stoppage of the proceeding results in acquittal, appeal can be made under S. 378 of the Code as a remedy against the order, and if the consequence is discharge then revision under S.397 of Code would be the remedy. Though the terms of S. 397 are quite wide and the matter can be taken up for consideration suo moto yet it cannot be used by the aggrieved party as a means to wreak personal vengeance against the accused. Other than few exceptions, the party to be considered as an aggrieved party in criminal matters is the State which is the guardian of the social interests of the community at large. Therefore, where the accused in a police case was discharged of charges of bride burning, the private party has no locus standi to get revision jurisdiction invoked.
In case party to proceeding expired in the meanwhile and their inheritors were not substituted, the order passed by the revisional court in revision against the deceased person would be improper and null. Albeit complaint for alleged offences under Ss. 415, 416, 417 and 420 of Penal Code was filed by the Assistant Registrar of a University, the revision filed by the Registrar of said university against dismissal of complaint and refusal by Magistrate to issue process against the individual named as the accused would be sustainable as there wasn’t any irregularity or any illegality.
High Court’s intervention should be slow in revisional jurisdiction with a positive finding favouring the paternity of child and marriage but in case the Magistrate’s finding is negative, Chandigarh High Court should re-examine the evidence and check whether the conclusion and findings reached by the Magistrate were legally sustainable or not. Revision isn’t continuation of trial, appeal or suit. It is solely a step to aid for invocation of powers of superintendence by Sessions Judge and Chandigarh High Court for rectifying irregularities, if any, in the orders and judgments of the inferior Courts. It would be improper for the Chandigarh Chandigarh High Court to dismiss revision petition in summary manner without specifying any reasons for the same. The Chandigarh High Court should state reasons for such dismissal.
If the petitioner files a review petition before Sessions Judge against the order of Magistrate which grants maintenance, Sessions Judge could not dismiss the case owing to the absence of the petitioner and his counsel. The merits of the case should be checked and then the case decided. When Revisional Court hadn’t set forth any reason for disagreeing with the conclusion arrived at by the trial Court, in as much as four witnesses omitted to be considered then the order of Revisional Court cannot be sustained. It is better to dismiss a review petition against orders where the order of punishment and conviction is supported by the evidence and there is no scope to intervene with an impugned order.
The order summoning the respondent as accused passed by the Magistrate, can be assailed by the accused before the same Magistrate for getting that order recalled. The filing of revision by the accused in such case is not warranted.
If prima facie case is made for taking cognizance and the revisional court directs for further enquiry, such direction would mean direction for the issue of processes to the accused, the same could be passed by revisional court. If the Chandigarh High Court sets aside the order of conviction in evidence in a revision case; then it is necessary to give details of findings and the mere statement of a contradiction being there, would not suffice. In case evidence was not examined from a proper perspective and there wasn’t any nexus between evidence cited and the conclusion arrived at by Court, revision against the order that the trial court passed would be maintainable.
Where maintenance was granted without taking account of the compromise arrived at by both the parties; then the order of maintenance would be improper and revision under S. 397 would instead be the right step. In case the Special Public Prosecutor wasn’t keeping the witnesses present in trial Court and did not apply for witness summons as well to keep the witnesses present in trial Court and there were some adjournments by trial Court with the accused also seeking a few adjournments, then if the trial court orders closure of evidence for not keeping the witnesses present would result in grave injustice. Revision against order of trial court would, therefore, be maintainable. Passing a preliminary order in a case under S. 145 of Cr.P.C. is mandatory. An order which doesn’t adhere to this mandatory provision would be against law and it would be proper to file a revision under S. 397.
If the case was pending since long and accused had already undergone mental agony then no use would come of from remanding the case for re-trial. The mere omission to record detailed reasons is not cause enough for intervention in revision. In revision, the order discharging accused should not be interfered with until it is perverse or on the face of record perfunctory or foolish or incorrect or glaringly unreasonable or made without recording any reasons. The revisional court would not interfere if the findings arrived at were neither against weight of the evidence on record nor unreasonable.
The Chandigarh High Court exercises its statutory function of supervising administration of justice on criminal side while hearing and determining cases under Ss. 397 and 401. Hence, consideration regarding abatement of appeal may not apply in the case of revisional application. Notwithstanding expiration of convicted person pending revision, the power to hear and determine the case is vested in the Chandigarh High Court. It is important to read Rule 276 of Criminal Rules of practice subject to S. 397. The Rule cannot override S.397. If so constructed, the effect of R. 276 will mean that the certified copies of judgments or orders sought to be revised should, without fail, be furnished prior to the disposal of revision petition and not when the revision petition is filed. Sub-sec (1) of this section deals with the tools for asking for the record of the inferior criminal Courts, while it can be disposed of by the power vested in Ss. 399 and 401. To interpret word “or” in S. 438 or 439 of Code, the use of “or” while conferring revisional jurisdiction on the Chandigarh High Court as well as Court of Session under S. 397 can be made use of.
When record of case regarding appeals and revision petition is before Chandigarh High Court, the Chandigarh High Court can invoke its powers under S. 397 read with S. 401 and order an enhancement of the sentence. When the Chandigarh High Court exercises revisional jurisdiction and confirms conviction and sentence imposed by subordinate court, it cannot postpone the execution of sentence, unless application is filed under S. 432 of Code for remitting the sentence or order of Government for commutation of the sentence. In cases of post-conviction, before the revision application is admitted for consideration, it is mandatory for surrendered accused to file authentic proof of surrender before trial court.
The entertainment of application for revision u/s. 397 by the Sessions Judge and asking for the record of any case pending in any subordinate criminal court will not amount to transfer of pendency of case to his court and hence vest in him the jurisdiction and power to make a reference on question by invoking S. 395 (2) of Cr. P.C. The mere calling of record by the Sessions Judge does not put an end to the pendency of the case in court of Magistrate and automatically transfer such pendency to Session court. It is not mandatory for the revision court to admit all revisions. The Judge’s prima facie satisfaction regarding existence of any merit in petition is necessary for issue of notice for revision petition. In other words, no person has the right to get revisional jurisdiction invoked and asking that court to issue notice on petition. If facts and circumstances warrant, the High court can exercise its power under Ss. 397 and 401 to order sentence to run simultaneously under S. 427 Cr.P.C. High court’s power to enhance the sentence, in relevant case, by exercising suo motu power of revision, still extant under S. 397 read with S. 401, Criminal P.C., 1973 in as much as Chandigarh High Court can, on its own account, ask for record of any subordinate criminal Court under its jurisdiction.
In addition to power under this section, a Chandigarh High Court has an inherent power to furnish such orders as are required for ends of justice (S. 482). Chandigarh High Court can suo motu exercise its revisional power without an appeal against acquittal but it cannot convert that proceeding into appeal against acquittal. Similarly, it can set aside order of acquittal, but it is beyond the powers of the Chandigarh High Court to convict the accused. Chandigarh High Court cannot exercise its revisional power merely on ground that the order of acquittal which it passed was based on incorrect appreciation of evidence and such power can be invoked only on specific ground.
It is necessary to exercise suo motu power of revision to quash illegal order even if such revision is found barred by limitation. Power can be exercised by High court and Sessions Court under S. 397(1) of Code suo motu as well to prevent any miscarriage of justice or illegality therefore alteration that, power was invoked on instance of Additional Public Prosecutor would not be material. Where the accused got FIR registered against himself for offence of abetment of suicide and charge sheet was filed against him but accused did not challenge legality of such order in revision which would have been the proper remedy available instead he came with petition to get the FIR quashed.
If the State Govt. is aggrieved about the inadequacy of sentence, an appeal can be preferred under S. 377(1). The State Govt.’s failure to prefer appeal does not, however, preclude Chandigarh High Court from exercising suo motu revisional power under S. 397, read with S. 401. But before Chandigarh High Court exercises such jurisdiction to enhance sentence, it is imperative that convict is notified and is provided an opportunity of being heard on question of sentence either through his advocate or in person. Chandigarh High Court cannot exercise its discretionary jurisdiction on revision petition which has been filed by third party against acquittal order.
The Chandigarh High Court while exercising its revisional jurisdiction can act both of its own motion as well as on motion of a stranger. In case of revision application filed by third party it has to be loath to take action on it since such application merely serves the function of bringing the matter to the knowledge of the court. In Ss. 397 and 401, there is no such provision that de facto complainant can file a revision case to challenge acquittal order. The power to quash proceedings under either of the provisions of S. 482 or S. 397 of Cr.P.C or Art. 226 of Constitution, is alternatively or concurrently, exercisable by Chandigarh High Court as far as proceedings are concerned. It can be stated that powers which are exercisable in respect of proceedings can be applied in respect of investigations.