Revision (Sec.397 – 401) under the Criminal Procedure Code, 1973

Revision (Sec.397 – 401)

Brief Outline

S.397 – Call for Records.

• Scope of Power
• Locus Standi
• Bail
• Interlocutory Orders
• Concurrent Jurisdiction
• Ouster of High Court’s Jurisdiction
• Circumstances

S.398 – Further Enquiry.

• Scope
• Concurrent Jurisdiction
• Power of Chief Judicial Magistrate
• Further Enquiry
• Opportunity of Showing Cause

S.399 – 400 – Powers of Sessions Judge, Additional Sessions Judge.

• Scope of Powers
• Locus Standi
• Concurrent Jurisdiction
• Limitations
• Power of Additional Sessions Judge

S.401 – Powers of High Court

• Scope
• Locus standi
• Exercise of Revisional Powers
• exercised at the instance of a private party
• Audi Alteram Partem
• Treating application for revision as a petition of appeal
• No Abatement of Revision by death of the Petitioner

S.402 – 405 – Ancillary/Miscellaneous Powers under Revision.

• S.402 – Power of High Court to Withdraw or Transfer Revision Cases
• S.403 – Option of the Court to hear the Parties
• S.404 – Statement by Magistrate on grounds of his decision to be considered by the High Court
• S.405 – High Court’s Order to be Certified to Lower Court.

Introduction

• Unless it is otherwise provided, under the Procedural Criminal Laws only one opportunity for appeal is afforded to the convict in a criminal case.
• Moreover, the right of appeal is not available in each and every case.
• Therefore, in order to prevent miscarriage of justice, where no appeal can be filed the Courts have been vested with the power of Revision.
• The powers of revision conferred on the Higher Courts are very wide and discretionary in nature.
• Section 397 – 405 deals with the Revisional Jurisdiction of the Courts.
• The above-mentioned provisions also place some limitations on the exercise of such power of Revision.

Object

• The object of revisional jurisdiction is to confer upon superior criminal courts, kind of paternal power or supervisory jurisdiction.
• To prevent miscarriage of justice.
• To provide an easy remedy and secure expedition in the disposal of cases.
• To keep a check on the subordinate Courts and ensure that they do not exceed their jurisdiction.
• To ensure that justice is done as per the recognized rules of criminal jurisprudence.

Limitations on exercise of Power of Revision

The power of filing revision has been limited in the following circumstances:

1. Where an appeal lies, but no appeal has been brought; or
2. No revision lies in relation to an interlocutory order; or
3. An acquittal cannot be converted into conviction under a Revision Application/Petition.
4. Only one Revision can be filed i.e., either to the Court of Sessions or High Court.

Power to Call for Records (S.397)

Scope of Power

• The power to call for records is conferred on two kinds of Courts, viz:
• High Court
• Sessions Judge
• The grounds on which the power can be exercised are as follows:
• Where the findings, sentence, or order is illegal or improper; and
• Where the proceedings are irregular
• The revisional powers of the High Court are wide in their scope and ambit, yet the discretion shall be exercised only in rare cases.
• Criminal law shall not be used as an instrument to settle personal vengeance.
• S.397 does not create any right in the litigant but only preserves the power of the Court to see that justice is done in accordance with recognized principles of law.

Locus Standi

• The rules of locus standi under Revisional Jurisdiction are not very stringent.
• The Court can act on its own motion.
• The Court can even act upon the motion of a stranger who may be instrumental in bringing to the knowledge of the Revisional court a matter which otherwise the Revisional court may not have known.
• The concerned parties to the case may also apply for a revision of an order, sentence or finding of a Court.

Power of Revisional Court to release offender on Bail

• Firstly, S.397(1) provides that an offender can be released on bail if the sentence of conviction is under Revision and the Court has suspended the execution of sentence.
• Secondly, Revisional jurisdiction can be exercised against an order refusing bail under section 167(2) as the same is final and not an interlocutory order.
• Thirdly, any order refusing bail is an interlocutory order, as bail may be refused at one stage and granted at a later stage in the proceedings. It can be even rescinded or modified and therefore the same is not a final order. Thus being an interlocutory order, the accused cannot apply for revision of an order rejecting bail.

No Revision against “Interlocutory” Orders

• S.397(2) expressly provides that no revision shall lie against an interlocutory order.
• The objective behind this provision is to attain finality of proceedings and expedite the disposal of criminal cases.
• Meaning of Interlocutory Order – An interlocutory order is the one which is passed at some intermediate stage of a proceeding generally to advance the cause of justice for the final determination of the rights between the parties.
• Test to determine whether an order is interlocutory or final is to see if the rights and liabilities of the parties are settled or are left to be determined by the Court in ordinary way.
• Therefore, the term interlocutory order denotes an interim order of temporary nature.

Concurrent Jurisdiction of High Court and Sessions Court

• The aggrieved person can directly invoke the Revisional jurisdiction of either the High Court or Session Court.
• Thus, it is not necessary to approach the Sessions Court first.
• One can approach the High Court directly without approaching the Sessions Court.

Ouster of High Court’s Jurisdiction

• As noted above, the High Court and the Sessions Court have concurrent jurisdiction under the Revisional jurisdiction.
• Therefore, if an aggrieved person approaches the Sessions Court first, then he cannot later on approach the High Court.
• As only one opportunity of filing a revision a provided under the law.
• S.397(3) also provides that a second revision is barred under the law.
• Mere making of a revision application before the Session Judge, makes second revision before the High Court non-maintainable.

Circumstances where Revisional Jurisdiction can be exercised

The following circumstances cull out certain circumstances where the Revisional Jurisdiction may be exercised:

• Grossly erroneous decision; or
• Non – compliance with the provisions of law; or
• Finding of fact not based on evidence; or
• Non – consideration of material evidence; or
• Arbitrary exercise of judicial discretion; or

Power to Order Enquiry (S.398)

Scope

• This section deals with power to direct further enquiry, in case of dismissal of complaint under section 203 & 204.
• It is pertinent to note that no appeal lies from an order of dismissal of complaint.
• Therefore, the legislature has duly provided for a similar provision u/s. 378 wherein upon dismissal of a complaint the aggrieved party can move to the High Court or the Sessions Court for reappraisal of the matter.
• The power u/s. 398 is only exercisable to proceedings pending or concluded at the pre-charge stage.

Concurrent Jurisdiction of High Court & Sessions Court

• The High Court or the Sessions Court can act under section 398.
• However, one cannot file another application u/s. 398 before the High Court after the Sessions Judge has dismissed the one filed before him.

Enquiry to be held by Chief Judicial Magistrate

• The High Court or the Sessions Court can order the Chief Judicial Magistrate or Magistrate subordinate to him.
• Where the Chief Judicial Magistrate has exercised the powers once, then the aggrieved party cannot move to the Sessions Court again.

Section 397 vis-à-vis Section 398

• The power u/s. 398 is not co-extensive with Section 397.
• The powers u/s. 398 are wider in scope than S.397.
• The use of word ‘otherwise’ bestows wider powers u/s. 398.
• Power u/s. 398 can be exercised without recourse to S.397.

“Further Inquiry”

• The term inquiry means taking of evidence and also includes a consideration of its effect with respect to the facts of the case.
• However, this expression does not mean “fresh preliminary inquiry” but only the reappraisal of the very evidence.

Opportunity of Showing Cause

• It is imperative to provide an accused an opportunity to show cause why further inquiry should not be ordered.

Sessions Judge Power of Revision (S.399 – S.400)

Scope

• The powers of Sessions Judge to hear a revision is co extensive with that of High Court.
• There is no vested right of revision as in the case of appeal.
• However, the powers of Sessions Judge in revision are certainly not wider than the power of revision of the High Court.

Locus Standi

The Sessions Judge can exercise the power u/s. 399 by any of the following ways:

1. Upon filing of a revision petition by an aggrieved party; or
2. Suo Moto

Concurrent Jurisdiction

• The Session Judge and the High Court have concurrent jurisdiction to entertain a revision petition.
• Meaning thereby that if a party files a revision petition before the Session Judge, the decision of the Session Judge shall be final and no appeal shall lie from his decision to the High Court.
• Therefore, filing of revision petition before the Session Judge has the effect of ousting the High Court from the jurisdiction to hear a revision petition in the same case.
• S.399(3) expressly provides a bar to second revision.

Limitations on exercise of Power of Revision

The following limitations apply on the Sessions Judge, while he disposes of a revision petition:

1. It cannot convert a finding of acquittal into that of a conviction; and
2. The Powers of Revision are wider than that of appeal as under revision the Court can correct the irregularities or improprieties of procedure; and
3. No order of revision can be passed without affording an opportunity of being heard either personally or by pleader; and
4. Where appeal lies and the same has not been filed, no revision shall be entertained at the instance of the party who could have appealed; and
5. Revision cannot be exercised with respect to interlocutory orders; and
6. Only one revision can be filed.

Powers of Revision of Additional Sessions Judge – S.400

High Court’s Power of Revision (S.401)

Scope of Revisional powers of High Court

• The Revisional powers of the High Court are very wide as far as it is concerned with preventing miscarriage of justice.
• Section 397 & Section 401 when read together provide for the circumstances where the powers of revision may be exercised. (Non – exhaustive list)
• The object of conferring Revisional powers is to clothe the High Court with a jurisdiction of general supervision and superintendence.
• High Court can exercise its Revisional jurisdiction upon any order passed by the subordinate courts, except for those which are expressly barred such as bar on revision against interlocutory orders.
• The Revision power of the High Court is discretionary and there is no vested right of revision.

Locus standi – Who can invoke the Revisional Jurisdiction

• The High Court can exercise the Revisional Jurisdiction in the following ways:
• Suo Moto; or
• Upon application of the aggrieved party; or
• Upon application of any other person.
• However, there are two limitations on the exercise of Revisional powers of the High Court, the same are mentioned as follows:
• If the revision is made before the Session Judge, then no revision lies before the High Court; and
• If an appeal lies but no appeal is filed
• Right of Private Party to file a Revision –
• A private party cannot file a revision where the case is instituted on a police report.
• However in other cases the private has the right to file revision if any error is committed by the Subordinate Court.
• The revision shall not be merely filed to settle personal scores and vengeance.

Exercise of Revisional Powers by high court

• The powers conferred u/s. 401 are discretionary in nature, and there is no vested right of revision.
• It can be exercised in exceptional cases where there is a glaring defect in the procedure or manifest error on point of law.
• It is not practicable to lay down a rigid test of uniform application and the matter has to be left to the sound exercise of judicial discretion.
• The court is empowered to dispose the petition on merits if the petitioner is not represented by counsel.
• The evidence has to be considered in its true perspective.
• The Apex Court has held that only unimpeachable evidence shall be looked into while exercising Revisional jurisdiction.

When Revision jurisdiction can be exercised at the instance of a private party

• Trial court has wrongly shut the evidence;
• Admissible evidence brushed aside as inadmissible;
• Lack of jurisdiction;
• Material evidence has been overlooked;
• Acquittal based on invalid compounding of offences.

*The list is not exhaustive

Audi Alteram Partem

• The basic rule of Audi alteram partem is applicable while the Court exercise its Revisional jurisdiction.
• However, S.403 (Option of Court to hear Parties) provides that (save as otherwise provided) no party has a right to be heard while the Court exercises its Revisional jurisdiction.
• The party shall in all cases be given an opportunity of presenting his case or showing cause against the order.
• The saving clause to S.403 is provided u/s. 398 & u/s. 401.
• Therefore S.403 does not violate the principles of natural justice.

Treating application for revision as a petition of appeal

• There might be a case where application for revision has been made and the party who has filed such application has not exhausted his right of appeal.
• Such non-filing of appeal can be on account of erroneous belief or a bona fide mistake.
• In such cases the Court may treat revision petition as an appeal in order to prevent miscarriage of justice and enable justice to be done.

No Abatement of Revision by death of the Petitioner

• As already noted that the power of Revision is not vested in any person as a right.
• The statutory provisions only conserve the Revisional Jurisdiction of the Court.
• The matter has to be heard and determined in accordance with law, whether or not the petitioner is alive or dead or whether he is represented in Court by a legal practitioner or not.
• The considerations applicable to abatement of appeal do not apply to Revision.
• Therefore, the High Court can exercise Revisional Jurisdiction in respect of an order made an against an accused person even after his death.
• Revision petition can be filed after the death of the convict, by his heirs to relief the family from the burden of conviction on their family.

Ancillary Powers under Revisional Jurisdiction (S.402 – 405)

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