Subhash Raghunath Ingale vs State And Ors.
2001 Latest Caselaw 361 Bom

JUDGMENT

N.V. Dabbolkar, J.

1. Heard leared counsel for the respective parties.

2. In this matter, present petitioner had filed a complaint with the Sillegaon, Police Station, Taluka Gangapur, District Aurangabad, against the present respondent Nos. 2 to 9 for the offences punishable under sections 420, 468, 34 of Indian Penal Code on the allegations that they grabbed the amount from the Government in respect of the scheme for compensation to the agriculturists, whose standing ready sugar cane crop was not harvested during crushing season of 1995-1996.

3. After investigation, the police have filed report praying for directions to prosecute the present petitioner for lodging a false complaint. Said prayer was allowed by the J.M.F.C., Gangapur and a notice was issued to the present petitioner as to why he should not be prosecuted for lodging a false complaint. The petitioner challenged the decision by Criminal Revision No. 243 of 2000 before the Court of Sessions Judge. Aurangabad. The revision petition was admitted by the order dated 8-12-2000 and notice retunable on 30-12-2000 was ordered. On 16-1-2001, the Revisional Court also called for the record and proceedings from the Lower Court. However, when the matter was fixed for hearing on 9-2-2001, the revision petitioner and his Advocate were absent and therefore, the learned Sessions Judge was pleased to order dismissal of the revision petition for want of prosecution.

Advocate Shri Bankar has relied upon a decision of Andhra Pradesh High Court, S. N. Sharma and others v. State, wherein it has been observed:

"Once a revision petition is admitted and records of the Court below are called for examining the correctness or otherwise of the order, sought to be revised, there Is no justification for the Court to reject the petition for default. The Court must proceed to decide it on merit regardless of the representation of the parties."

5. On reference to section 397(1) of Criminal Procedure Code, opening part reads as follows:--

397. (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......."

It is evident from the section that in order to take cognizance regarding any illegality, impropriety or incorrectness in the orders passed by the subordinate Court, in its revisional jurisdiction, either the High Court or Court of Session can act suo motu and it does not require any application to be preferred by any party challenging the said illegality, impropriety or incorrectness.

6. Once revision filed by the party is admitted and the Revisional Court is inclined to call for record and proceedings of the Trial Court, it is to be presumed that the Revisional Court was prima sacie satisfied about the existence of the some irregularity, impropriety or incorrectness that is required to be set right. In this context, the brief reference to section 403 of Criminal Procedure Code also may be usefully made, which reads a follows:--

"S. 403. Option of Court to hear parties. -- Save as otherwise expressly provided by this Court, no party has any right to be heard either personally or by pleader before any Court exercising the powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader."

7. Reading the provisions of sections 397 and 403 of the Code together, it can be visualised that on noticing the illegality, impropriety or incorrectness in the judgments and orders of the Trial Court, it would be open for the Revisional Court to call for the record and proceedings and issue directions for setting right the irregularity etc. observed in the proceedings. Once the party was served and such service was only after the Revisional Court was satisfied that it needs to interfere or at least consider the illegality etc. appearing in the record of the Trial Court, it is empowered to proceed on its own and without hearing the parties.

8. Considering the two provisions together, observations of the Andhra Pradesh High Court are fully justified. In the present case, therefore, it was incorrect on the part of the learned Sessions Judge to dismiss the revision petition for default due to absence of revision petitioner and his Advocate, especially when the matter was admitted and record and proceedings were called for.

9. In the circumstances, the writ petition is allowed. Order dated 9-2-2001 passed by the Sessions Judge, Aurangabad In Criminal Revision No. 243 of 2000 dismissing the revision petition for non-prosecution is quashed and set aside. The revision petition is restored to the file, which the learned Sessions Judge shall dispose of in accordance with the law.

Parties are directed to appear before the Sessions Judge, Aurangabad on 2.5.2001.

In the meanwhile, the proceedings before the Trial Court shall stand till 2-5-2001, on which date the petitioner shall obtain appropriate orders of further stay from the Revisional Court.

10. Rule is accordingly made absolute.