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Introduction
As the code says that there is no right to appeal in every case and it is confined to such cases as
are specifically provided by the law. Even in such specified cases the code allows only one
appeal and a review of the decision of the appellant court is not normally permissible by way of
further appeal to yet another higher court. In order to avoid the possibility of any miscarriage of
justice in cases where no right of appeal is available the code has devised another review
procedure, namely REVISION. Section 397 to 405 of Criminal Procedure Code deals with the
powers of revision conferred on the higher courts and the procedure to regulate these powers.
The powers of revision conferred upon the higher courts are very wide and are purely
discretionary in nature. There fore no party has right t heard before any court exercising such
powers.
All this provisions and the limitations are being given by the section 401 of the Criminal
procedure code of 1973. Further the researcher would like to go with its provisions separately
and what all lies with the high court in such matters with the help of the case laws.
Section 401 And Article 226 And 227 Of The Constitution Of India:
In an appropriate case, it may be permissible for High Court to protect a person from illegal
prosecution, by granting an appropriate write such as writ of mandamus.
Section 401 of Cr.P.C and Article 227 grants the extraordinary constitutional power to the High
Court under Article 227 which cannot be taken away by anything in section 397, 401 of the
Cr.P.C. Of course the High Court can interfere under Article 227 only if the conditions necessary
for application of that provision exist such as where the order in question is without jurisdiction
or founded on no evidence. But Art. 227 cannot be used to interfere with a matter in the
discretion of the inferior Court.
for the purpose of which anybody could draw the attention of the High Court to the illegality or
irregularity in the order or sentence. In short, the application of a person who has no locus standi
may be treated as information to induce the High Court to precede suo motu in a present case. 1)
Section 401(4) says that when a party is entitled to appeal against an order, it is not entitled to
apply in revision without first appealing against such order. Hence, where a state government has
failed to appeal against an order or acquittal, it cannot move in revision against that order. Under
sub section (4) of section 378, a complainant is entitled to appeal if (a) the case has not been
instituted on his complaint and (b) if the High Court grants him special leave to file such appeal.
Hence, in such a case, the complainant cannot apply for revision without first seeking the special
leave to appeal from the High Court. The complainant, in cases other than the above, or even a
third party, may apply for revision, provided only there are exceptional grounds such as: Absence
of jurisdiction, Miscarriage of Justice.
Whether The High Court Can Exercise Its Power Of Revision Where An Appeal
Is Pending Against The Impugned Order Before The Sessions Court.
The usual rule of practice is that the High Court would not excise its revisional power under
section 401, in a case where the aggrieved party has appealed against the judgment or order
before an inferior court, until that appeal is disposed of. But there may be exceptional cases
where the ends of justice required that appeal itself be heard by the High Court and n such a case,
it is open to the High Court to call for the records of the appeal under its revisional power, hear
and dismiss the appeal and thereafter enhance the sentence under its revisional power.
Any order passed in any proceedings under the Code, except when it is specifically barred such
as an interlocutory order, is revisable by the High Court under S.401.
The revisional powers under 397 and 401 are entirely discretionary. There is no vested right of
revision in the same sense in which there is vested right of appeal. These sections do not create
any right in the litigant, but only conserve the powers of the High Court to see that justice is done
in accordance with the recognized rules of criminal jurisprudence and that subordinate criminal
courts do not exceed their jurisdiction, or abuse the powers vested in them by the Code.
In a case where any application for revision is made by or on behalf of any person before
the Sessions Judge, no further proceeding by way of petition shall be entertained by the
High Court.
In a case where under this Code an appeal lies but no appeal is brought, then according to
sub-section 4 of S.401, no way of revision shall be entertained at the instance of the party
who could have pleaded. This rule is based on sound policy that a person who has not
exhausted his remedies by law should not normally be allowed to invoke revisional
jurisdiction of the High Court.
A private party has no locus standi in a case instituted on a police report and has right to demand
an adjudication on an application in revision. He cannot claim locus standi even if the Public
Prosecutor permits him to seek revision. But it cannot be said that a private party has no right to
bring to the notice of the Sessions Judge or the High Court any illegality committed by the
subordinate court. There may be exceptional circumstances I which, on a revision application
filed by a private party, revisional jurisdiction may appropriately be exercised. However, while
dealing with such a revision application it would not be irrelevant to bear in mind the fact that
court's jurisdiction has been invoked by a private party and that the criminal law is not to be used
as an instrument wreaking private vengeance by an aggrieved party against the person who
according to that party has caused injury to it. Keeping this fact in view if the court finds that
there is some glaring defect in the procedure or there is manifest error on a point of law and
consequently there has been flagrant miscarriage of justice, revisional jurisdiction should be
exercised. In a case, while the appeal was pending in the Sessions Court a revision application
was filed in the HC by the complainant ho also prayed for transferring the appeal from the
Sessions to the High Court to be heard along with the revisions. The court rejected the prayer for
the transfer and ruled that the criminal revision case should remain pending until the disposal of
the appeal by the Sessions Court to enable the complainant to pursue the same after the appeals
are disposed of by the Sessions Court.
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not an example of the work written by our professional law writers.
The court having exercised such power shall not have the power to convert a finding of
acquittal into one of conviction.
Section 401(1) provides that in the exercise or revisional jurisdiction the HC may exercise any of
he powers of the court of appeal. As the court of appeal is entitled under 386(a) to reverse an
order of acquittal or to direct a retrial, the HC in the exercise of its revisional powers would also
be entitled to record a conviction by reversing the order of the acquittal.
But 401(3) prohibit the High Court from converting a finding of acquittal into one of conviction.
This places limitations on the power of the HC to set aside a finding of acquittal in the revision,
particularly when the state had not thought fit to appeal to the HC against the finding of the
acquittal and where the HC is exercising the revisional jurisdiction at the instance of private
parties. In a number of decisions, the Supreme Court has held that the revisional power of the
HC to set aside the order of the acquittal at the instance of private parties should be exercised
only in exceptional circumstances where there is some glaring defect in the procedure or there is
a manifest error on the point of law.
It would follow from the above that where an acquittal is based on the compounding an offence
and the compounding is invalid under the law, the acquittal would be liable to be set aside by the
HC in the exercise of such jurisdiction.
In a case, the acquittal recorded by the Sessions Court was reversed and the accused was
convicted by the HC, acting on the letter from a prosecution witness, by treating it is a criminal
revision petition. The SC disapproved of the HC's action in the following words:
No doubt the HC in exercise of its revisional powers can set aside an order of acquittal if it
comes within the ambit of exceptional circumstance enumerated above, but it cannot convert an
order acquittal into an order of conviction. The only course left is to order for a retrial.
Case Laws
In this chapter researcher would like to discuss some of the case laws which deals with the
Section 401 of the Criminal Procedure Code.
Connected herewith is the question about the options open to the High Court in case a judgment
of acquittal, when examined within the parameters laid down by D.Stephens vs. Nosibolla
(Supra), is found to call for interference. The High Court cannot convert the acquittal into
conviction. The earlier Code of 1898 also gave similar powers to the High Court by Section 439.
The earlier Code and the present one by Sections 439(4) and 401(3) respectively have imposed a
restriction by enacting that the revisional jurisdiction cannot be exercised to convert an acquittal
into conviction:
Sec. 401 High Court's powers of revision.
Nothing in this section shall be deemed to authorize a High Court to convert a finding of
acquittal into one of conviction.
High Court has transgressed the bounds of his revisional jurisdiction in re-appreciating the
evidence and setting aside their acquittal.
In the case of Jaspreet Singh v. A.P Singh:- This revision petition under Sections 397/401,
Cr.P.C. is directed against the judgment of learned Additional Sessions Judge, New Delhi, dated
18.2.2005, sitting as a Court of appeal, thereby dismissing the appeal filed by the petitioner
herein against his conviction of sentence.
The petitioner herein was prosecuted by the DRI for the offence punishable under Sections
132/135(1) (a) of the Customs Act (for short the Act) and after trial was convicted for the said
offences and sentenced to 6 months rigorous imprisonment and fine of Rs. 1000/- for the offence
punishable under Section 132 of the Act or in default of payment of fine to undergo one and a
half month's simple imprisonment. The petitioner was further sentenced to 3 years rigorous
imprisonment and a fine of Rs.1000/- or in default of payment of fine to further undergo simple
imprisonment of one and a half months. Aggrieved by his conviction and sentence the appellant
preferred an appeal but without success, the learned appellate Court upholding the conviction as
well as the sentence. Even the plea for reduction/modification of sentence did not find favour
with the appellate Court.
Though in the body of the revision petition, the petitioner sought to assail both conviction and
sentence as illegal and unwarranted, but during the course of hearing of the petition, Mr. Mehta
learned Counsel for the petitioner stated at the Bar that he did not wish to press the grounds on
which conviction of the petitioner has been challenged. Accordingly, he confined his submissions
only so far as it relates to the quantum of sentence as awarded to the petitioner by the learned
trial Court and upheld by the appellate Court.
In the case of Lalsai Khunte v. Nirmal Sinha and Ors the Supreme Court of India has observed
that: - The convict had earned a remission and the period of imprisonment reduced by the period
of remission would have had the effect of removing disqualification as the period of actual
imprisonment would have been reduced to a period of less than two years. The Constitution
Bench held that the remission of sentence under Section 401 of the Criminal Procedure Code
(old) and his release from jail before two years of actual imprisonment would not reduce the
sentence to one of a period of less than two years and save him from incurring the
disqualification.
An order of remission thus does not in any way interfere with the order of the court; it affects
only the execution of the sentence passed by the court and free the convicted person from his
liability to undergo the full term of imprisonment inflicted by the court, though the order of
conviction and sentence passed by the court still stands as it was. The Page 1084 power to grant
remission is executive power and cannot have the effect which the order of an appellate or
revisional court would have of reducing the sentence passed by the trial court and substituting in
its place the reduced sentence adjudged by the appellate or revisional court.
In the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors. The
Supreme Court observed that the Revisional Court is empowered to exercise all the powers
conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC.
Section 401 CrPC is provision enabling the High Court to exercise all powers of Appellate Court,
if necessary, in aid of power of superintendence or supervision as a part of power of revision
conferred on the High Court or the Session Court. Section 397 CrPC confers power on the High
Court or Sessions Court, as the case may be, "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 regularity of any proceeding of such inferior court." It is for the above purpose, if necessary,
the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring
powers of Appellate Court on the Revisional Court is with the above limited purpose. The
provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the
revisional power of the High Court can be exercised as a second appellate power.
Bibliography
Books Referred
K.N. Candrasekharan Pillai (rev.), R.V. Kelkar, Lectures on Criminal Procedure, 4th ed. 2006,
Eastern Book Company, Lucknow.
P. Sarkar and P.M. Bakshi (rev.), S.C. Sarkar, The Law of Criminal Procedure, 7th ed. 1996, rep.
2001, India Law House, New Delhi.
Y.V.Chandrachud (rev.), Ratanlal and Dhirajlal, The Code of Criminal Procedure, 16th ed. 2002,
rep. 2003, Wadhwa & Co. Nagpur, New Delhi.