JUDGMENT
1. When this Revision came for hearing, preliminary objection was taken by Mr. Agarwal for Respondent No.3 that even though the High Court and Sessions Court has concurrent jurisdiction to entertain Revisions, in view of the Judgment of this Court in two cases, namely, Judgment of Justice Patil reported in 1999 Cri. L. J. 122 Padmanabh Keshav Kamat vs. R. Kantak & ors. and another judgment of Justice Lodha 1996 Cri.L.J. 172 Tejram s/o Mahadeorao Gaikwad vs. Smt. Sunanda Tejram Gaikwad and others, this court should not entertain this Revision unless exceptional circumstances or exceptional case is made out.
2. As against this it was contended by Mr. Ponda that when concurrent jurisdiction is conferred upon the High Court and the Sessions Court it was for the litigant to make choice of the Forum and there could not be any legal bar upon a person if he moves the High Court directly without going to the Sessions Court. He contended that if Revision before the Sessions Court is dismissed then the party cannot come to the High Court because second Revision is barred. He therefore contended that in such an eventuality the petitioner who have moved this court in revision jurisdiction will be without any remedy. Mr. Ponda relied upon the judgment reported in 1976 Cri. L. J. 1604 Madhavlal Narayanlal Pittle vs. Chandrashekhar Chaturvedi and others and Jagir Singh vs. Ranbir Singh and anr.
3. As against this, Mr. Shirodkar who was supporting Mr. Agarwal contended that if the Revision is dismissed by the Sessions Court, it is not that they have no remedy but they can come to the High Court under Sections 397 and 482 of the Criminal Procedure Code.
4. Judgment delivered by Justice Lodha is earlier as it is reported in 1996 Cri. L. J. 172 and the same is forwarded by Justice Patil in 1999 Cri. L. J. 122. Justice Lodha held in para 4 of the aforesaid judgment :
"It is undoubtedly true that S. 397 of the Criminal Procedure Code confers jurisdiction of revision concurrently on the Court of Sessions as well as the High Court, but it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the superior Court is made out."
Justice Lodha has further observed that : "This Court does not encourage filing of revision application under S. 397 of the Code of Criminal Procedure directly before this Court if it could be challenged in revision before the Sessions Court having jurisdiction of revision over the matter."
This judgment was forwarded by Justice Patil who also took the similar view and held that even though the Revision filed in the High Court in that case was maintainable and not barred by any provisions of Section 397 of the Criminal Procedure Code however, maintainability of the proceedings is one thing while its entertainment is another. Justice Patil observed :
"When the proceeding is maintainable by different Courts, one being inferior or subordinate to the other, then it is certainly a question of propriety, particularly for the superior Court whether it should entertain such a proceeding which could have been filed in the lower Court. It is material to note that revision is not a statutory right of a litigant but it is a matter of discretion of the Court having revisional jurisdiction."
5. Relying therefore upon the aforesaid two judgments, Mr. Agarwal contended that even though the Sessions Court and High Court have concurrent jurisdiction to entertain and decide the Revision, this Revision should not be entertained on the question of propriety and because no special case is made out. Mr. Agarwal contended that Justice Patil has while following the judgment of Justice Lodha has considered all the relevant cases on this point and therefore since two single judges of this court have taken particular view this Court should follow the same view.
6. According to Mr. Ponda since concurrent jurisdiction is conferred on both the courts i.e. Sessions Court and High Court and choice was given to the litigant to choose the Forum, this Court should not refuse to entertain the Revision. He also contended that if the petitioner moves the Sessions Court and looses before the Sessions Court, they will have no remedy under the law. As against this, Mr. Shirodkar supporting Mr. Agarwal contended that the petitioner in that case could still come to the High Court under Section 482 of the Criminal Procedure Code.
7. Mr. Shirodkar relied upon the judgment of this court reported in 1990 Mah. L. J. 975 Shyamrani wd/o Wasudeo Prasad Gaur vs. State of Maharashtra wherein Division Bench dealt with the question :
"whether the application under Section 482 of the Criminal Procedure Code independently or read with Article 227 of the Constitution of India is maintainable at the instance of the party who has availed the remedy of revision under Section 397 of the Criminal Procedure Code ?"
The Division Bench answered aforesaid question in the affirmative. Therefore, Mr. Shirodkar contended that even if the petitioners loose their case before the Sessions Court in Revision they still could come before this court under Section 482 of the Criminal Procedure Code.
8. It needs no clarification that the Sessions Court and the High Court so far as Revisions are concerned have been given the concurrent jurisdiction. It is also true that out of these two Forums the person can select any one of his choice. This right is not affected or taken away. However, the question is of propriety and since two Judges of this court have taken a consistent view, I do not propose to take a different view. Judgments relied upon by Mr. Ponda in 1976 Cri.L.J. 1604 Madhavlal Narayanlal Pittle vs. Chandrashekhar Chaturvedi and others merely reiterates that both the courts have concurrent jurisdiction. I have already stated that there cannot be any dispute about that aspect. However, to repeat in view of the two orders of this Court on same point, I pass the following order :
ORDER Preliminary objection is upheld on the ground of propriety and absence of special circumstance, this Revision be sent to the Sessions Court, Greater Mumbai, for decision according to law.
Sessions Court is directed to dispose of Revision within eight weeks from today. All the parties to co-operate. Since this order is passed after allowing the application of the intervenors to join, no clarification is necessary that they will be party before the Sessions Court.
Principal Judge to assign this Revision to appropriate Court so that it could be disposed of within the time limit of eight weeks.
Parties to act on an ordinary copy of this Order duly authenticated by the Sheristedar of this Court.
9. Certified copy expedited.