Bombay High Court
Kailashchandra S/O Vithhalrao ... vs The State Of Maharashtra & Anr on 30 August, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 403 OF 2015
1. Vithhalrao S/o Kondiba Waghmare,
Age: 65 years, Occu: retired,
2. Shantabai W/o Vitthalrao Waghmare,
Age: 55 years, Occu: Housewife,
3. Karuna S/o Vitthalrao Waghmare,
Age: 30 years, Occu: Housewife,
4. Vidya d/o Vitthalrao Waghmare,
Age: 29 years, Occu: Teacher
Petitioners No. 1 to 4 are R/o. Kundalwadi,
Tq. Biloli, Dist. Nanded.
5. Shobabai W/o Saylu Kasewad,
Age: 38 years, Occu: Housewife,
R/o. At Doman Yelgi, Post. Kotgir,
Tq. Bhodan, Dist. Nazamabad (A.P.)
... PETITIONER
VERSUS
1. The State of Maharashtra,
Through P.S. Bhagyanagar, Nanded.
2. Priya W/o. Kailashchandra Waghmare,
Age: 32 years, Occu: Service,
R/o. Tathagat Nagar, Nanded.
...RESPONDENTS
....
WITH
CRIMINAL WRIT PETITION NO. 404 OF 2015
Kailashchandra S/o Vithhalrao Waghmare,
Age: 38 years, Occu:- Service,
R/o. Tathagat Nagar, Nanded,
Dist: Nanded. PETITIONER
::: Uploaded on - 31/08/2016 ::: Downloaded on - 01/09/2016 00:41:38 :::
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VERSUS
1. The State of Maharashtra
Through PS Bhagyangar, Nanded
2. Priya W/o Kailashchandra Waghmare
Age: 32 years, Occu: Service,
R/o. Tathagath Nagar, Nanded. ...RESPONDENTS
...
WITH
CRIMINAL WRIT PETITION NO. 405 OF 2015
Rajkumar S/o. Vithhalrao Waghmare,
Age: 29 years, Occu: Business,
R/o. Kundalwadi, Tq. Biloli,
Dist. Nanded.
... PETITIONER
VERSUS
1. The State Of Maharashtra,
Through P.S. Bhagyanagar, Nanded.
2. Priya W/o. Kailashchandra Waghmare,
Age: 32 years, Occu: Service,
R/o. Tathagath Nagar, Nanded.
...RESPONDENTS
...
Advocate for Petitioners : Mr D.M. Shinde
APP for Respondents: Miss R P Gour
Advocate for Respondent 2 : Mr S V Kale
...
CORAM : V.K. JADHAV, J.
...
Reserved on : August 18, 2016
Pronounced on : August 30, 2016.
...
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ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. With the
consent of learned counsel for respective parties, heard
finally.
2. Being aggrieved and dissatisfied by the common
Judgment and order passed in Criminal Revision
Application No.91 of 2014 and Criminal Revision
Application No.92 of 2014 by the learned Sessions
Judge, Nanded dated 13.2.2015, the original accused in
Sessions Case No.208 of 2013 has preferred these writ
petitions.
3. Brief facts, giving rise to the present writ petitions,
are as follows :-
a] On the basis of the complaint lodged by
Respondent No.2 Priya Waghmare Crime bearing
No.10/2012 came to be registered at Police Station,
Bhagyanagar, District Nanded for the offence punishable
under section 498-A, 497, 328, 294, 292, 323, 504, 506,
509, 114, 109 read with section 34 of the Indian Penal
Code. After due investigation, Police Station Bhagya
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Nagar has submitted charge sheet in the Court and the
case is committed to the Sessions Court as offences
alleged to have been committed by the
petitioners/accused are triable exclusively by the Court
of Sessions.
b] The petitioners have filed an application Exh.55 in
the said Sessions Case 208 of 2013 for discharge. The
learned Assistant Sessions Judge, Nanded by order
dated 14.3.2014 below Exh.55 in Sessions Case No.208
of 2013 partly allowed the said application and all the
petitioners/original accused were discharged for the
offences punishable under sections 109, 114, 294 and
Section 497 of the Indian Penal Code. Except the
petitioner-accused No.1 Kailashchandra s/o Vitthal
Waghmare all the accused are also discharged for the
offence punishable under section 292 of the Indian
Penal Code. However, the learned Assistant Sessions
Judge, Nanded has rejected the application so far as
prayer claiming discharge for the offence punishable
under Section 328 of the Indian Penal Code. Being
aggrieved by the same, the petitioners-accused preferred
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two Criminal Revision Applications bearing No.91 of
2014 and 92 of 2014 respectively. The learned Sessions
Judge, Nanded by his common Judgment and order
dated 13.2.2015 in the aforesaid Criminal Revision
Applications set aside the order passed by the learned
Assistant Sessions Judge below Exh.55 in Sessions
Case No.208 of 2003 and restored the application
Exh.55 with a direction to decide the said application
afresh by passing an appropriate order in accordance
with law in the light of the discussion made in the
Judgment. Being aggrieved by the same, these two writ
petitions have been preferred.
4. The learned counsel for the petitioners submits
that, the Assistant Sessions Judge, Nanded has
discharged the petitioner/accused for the offence
punishable under Section 109, 114, 294 and 497 of the
Indian Penal Code and also discharged all the accused
for the offence punishable under section 292 of the
Indian Penal Code except the petitioner-accused No.1
Kailashchandra. However, the learned Assistant
Sessions Judge has rejected the prayer to the extent
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seeking discharge for the offence punishable under
section 328 of the Indian Penal Code. Being aggrieved
by the said order to the extent of rejection of prayer
seeking discharge for the offence punishable under
Section 328 of the Indian Penal Code, the
petitioners/original accused have preferred the said
Criminal Revision Applications and also the petitioner-
original accused Kailashchandra preferred Criminal
Revision Application alongwith them to the extent of
rejection of his prayer seeking discharge for the offence
punishable under section 292 of Indian Penal Code.
The learned counsel submits that, the State has not
preferred any Criminal Revision Application against the
order passed by the learned Assistant Sessions Judge,
Nanded below Exh.55 in Sessions Case No.208 of 2013.
5. The learned counsel further submits that, the
Sessions Judge, Nanded while deciding said criminal
revision application Nos.91 of 2014 and 92 of 2014 has
exercised the revisional power suo motto to the extent of
the order passed by the learned Assistant Sessions
Judge below Exh.55 discharging the petitioners-original
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accused for the offences punishable under section 109,
114, 294 and 497 of the Indian Penal Code. The learned
counsel submits that, the Sessions Judge, Nanded has
exercised the revisional powers suo motto without giving
an opportunity of hearing to the petitioners and the
same amounts to violation of principles of natural
justice. The learned counsel submits that, the Sessions
Judge has not followed the provisions of Section 399 (1)
and Section 401 sub-section (2) of the Criminal
Procedure code. The learned counsel submits that, the
petitioners came to know for the first time after going
through the order passed by the learned Sessions Judge
in those Criminal Revision Applications that the learned
Sessions Judge by exercising the revisional power suo-
motto set aside the order passed by the Assistant
Sessions Judge, Nanded below Exh.55 to the extent of
discharge of the present petitioners-original accused for
having committed an offence punishable under Section
109, 114, 294, 497 of the Indian Penal Code. The
learned Sessions Judge, Nanded has not issued notice
to the petitioners before exercising suo motto revisional
jurisdiction. The learned counsel submits that, in view
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of the provisions of sub-section (2) of Section 401 no
order shall be made to the prejudice of the accused or
other person unless he has had an opportunity of being
heard either personally or by pleader in his own defence.
The learned Sessions Judge has exceeded the
jurisdiction and failed to follow the principles of natural
justice.
6.
The learned counsel for the petitioners in order to
substantiate his contentions placed his reliance on the
following judgments :-
I. Bomb Rustom Irani Vs. State of Maharashtra
and another reported in 2007 (1) Bom.C.R. (Cri)
II. Criminal Revision Application No.94 of 2004
with Criminal Revision Application No.142 of
2004 Shaikh Madinabibi Mustafabhai Vs. State
of Gujarat.
III.Balasaheb Keshav Thakre and ors. Vs.
Kusumbai Manikrao Deshmukh and another
reported in 2000 ALL MR (Cri) 662.
7. The learned counsel for respondent no.2-original
complainant submits that, in view of the provisions of
Section 399 (1) of the Code of Criminal Procedure Code,
in any proceedings the record of which has been called
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by the Sessions Judge himself, the Sessions Judge may
exercise all or any of the powers which may be exercised
by the High Court under sub-section (1) of Section 401
of the Code of Criminal Procedure. The Sessions Judge
may not be entitled to invoke revisional jurisdiction if it
otherwise comes to its knowledge but revisional
jurisdiction of the Sessions Judge is extended to any
proceeding, the record of which has been called for by
himself. Phraseology "Record of which has been called
for by himself" as used in Section 399 of Code of
Criminal Procedure is not restricted only to those cases
in which suo-motto revision petition is entertained by the
Court of Session. It would also cover the case, where, in
context of any other proceeding, including revision
petition initiated by any one of the accused of which the
record is called. The learned counsel submits that, the
Sessions Judge after perusal of the record called at the
instance of the accused may be on some other point
when notice the illegality apparent on the face of record
while discharging the petitioner-accused under the other
charges levelled against them, suo motto revised the
said order and further directed the Trial Court to hear
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and decide the application Exh.55 afresh. There is no
illegality as such in the impugned order and writ
petitions are devoid of any merits.
8. I have also heard the learned APP for the State.
9. Main grievance of the petitioner is that, the
learned Sessions Judge, Nanded while exercising
revisional powers suo-motto has not given an
opportunity of being heard to the petitioners-original
accused. The learned Sessions Judge, Nanded has
observed that, the prosecution has not preferred any
revision against the order so far as discharging the
accused from certain offences is concerned and further
observed that the Sessions Judge may suo-motto
examine the legality, propriety and regularity of the
proceeding. In paragraph no.40 of the Judgment, the
learned Sessions Judge has observed that it has become
necessary to exercise the powers of suo-motto revision
because the learned Judge of the Trial Court has
committed certain mistakes. The learned counsel
submits that the Sessions Judge while writing the
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judgment in the Criminal Revision No.91/2014 and
92/2014 decided to exercise the revisional jurisdiction
suo-motto with regard to discharge of the petitioner-
accused persons by the trial court under some offences
and passed the impugned order to the prejudice of the
petitioners-accused without affording an opportunity of
being heard to them.
10.
The provisions of section 399 and 401 (2) of the
Code of Criminal Procedure Code so far it is material
while deciding the present writ petitions reads thus :-
399. Sessions Judge's powers of revision :-
(1) In the case of any proceeding the record of which has
been called for by himself the Sessions Judge may
exercise all or any if the powers which may be
exercised by the High Court under sub-section (1) of
Section 401.
(2) Where any proceeding by way of revision is
commenced before a Sessions Judge under sub-section
(1), the provisions of sub-sections (2), (3), (4) and (5) of
section 401 shall, so far as may be, apply to such
proceeding and references in the said sub-sections to
the High Court shall be construed as references to the
Sessions Judge.
(3) Where any application for revision is made by or on
behalf of any person before the Sessions Judge, the
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decision of the Sessions Judge thereon in relation to
such person shall be final and no further proceeding by
way of revision at the instance of such person shall be
entertained by the High Court or any other Court.
401. (1) ...........................................
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or
by pleader in his own defence.
(3) ........................................................
(4) ig ........................................................
(5). ........................................................
11. It is clear from the provisions of Section 401(2) of
the Code of Criminal Procedure that, the High Court
cannot pass any order to the prejudice of the accused or
other persons unless that person has had an
opportunity of being heard either personally or by
pleader in his own defence. In view of the provisions of
sub-section (2) of Section 399 wherein proceedings by
way of revision is commenced before the Sessions
Judge, the provisions of sub-section (2) of Section 401
shall, so far as may be applied to such proceedings. It is
thus, incumbent upon, the Sessions Judge to hear the
accused, if the Sessions Judge proposes to make any
order adverse to the accused or other persons.
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12. In the instant case, the learned Assistant Sessions
Judge has discharged the petitioners-accused under
some of the charges levelled against them and rejected
their application for discharge in respect of remaining
charges. Being aggrieved by the order of rejection of the
application of discharge in respect of some of the
offences, the petitioner-original accused approached to
the Sessions Judge. The learned Sessions Judge,
Nanded while examining the record and proceedings in
the said revision, if noticed any illegality, even in the
order of discharge passed by the trial court, under the
provisions of section 399 the Sessions Judge, may
exercise all or any of the powers which may be exercised
by the High Court under section 401. However, the
Sessions Judge, if proposes to deal with the said order
of the trial court in respect of discharge of the
petitioner-accused under some of the offences, suo-
motto, the Sessions Judge should have registered a
revision titling it as Suo-motto Revision and ought to
have given an opportunity of being heard to the
petitioners-original accused. Only after the judgment is
delivered in Criminal Revision No.91/2014 & 92/2014,
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the petitioner-original accused came to know that even
the learned Sessions Judge has examined the order
passed by the Trial Court about their discharge under
some of the offences and set aside the said order by
directing the trial court to hear the application Exh.55
entirely afresh. This order is certainly passed to the
prejudice of the petitioner-accused without giving them
an opportunity of being heard either personally or by
pleader in their defence.
13. I am fortified by the views expressed by this Court
in a case Bomab Rustom Irani Vs. State of Maharashtra
(supra) reported in 2007 (1) Bom Cri 656 relied upon by
the learned counsel for the petitioner. In paragraph
No.9 of this case, this Court has made following
observations :-
9. It is clear from section 401(2) of the Code that
the High Court cannot pass any order to the
prejudice of the accused or other person in its
revisional power unless that person has had an
opportunity of being heard either personally or
by pleader in his own defence. Section 399
refers to Sessions Judges powers of revision.
Sub-section (2) thereof states that where any
proceeding by way of revision is commenced
before a Sessions Judge, provisions of sub-
section (2) of section 401 shall, so far as may
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be, apply to such proceeding and reference to
High Court in the said sub-section shall be
construed as reference to the Sessions Judge.
Therefore, even the Sessions Judge is obliged to
hear the accused or other person, if he proposes
to make any order adverse to that person while
exercising his revisional powers. Such person
may be heard personally or through his lawyer.
14. By invoking the powers as provided under section
399 of the Code of Criminal Procedure, if the Sessions
Court initiated suo motto revision proceeding, it would
be just and appropriate if the Sessions Court register
the separate Suo Motto proceeding of the revision
alongwith the revision preferred by the accused and also
give notice of the said suo motto revision to the accused
or otherwise at the most the learned Sessions Judge
may pass an order below Exh.1 of Criminal Revision
Application already preferred by the accused persons
before him, where the record and proceedings has been
called, disclosing his intention to examine any other
order passed by the Trial Court. The learned sessions
Judge, in that event, bound to follow the provisions of
Sub section (2) of Section 401 of the Code of Criminal
Procedure.
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15. It is not clear from the impugned common order
passed by the learned Sessions Judge, Nanded that the
learned Judge has considered the revision preferred by
the petitioner-accused on merits. While exercising the
suo-motto revisional jurisdiction, the learned Sessions
Judge has merely observed that the trial is not properly
regulated and irregularities are crept in the impugned
order. The learned Sessions Judge, has, therefore,
thought it fit to remand the matter to the learned Judge
to re-appreciate the prosecution material and make out
specific assertions as to exactly for what offences
charges are to be framed and against which particular
accused.
16. In view of the above discussion, the impugned
common order passed by the learned Sessions Judge,
Nanded dated 13.2.2015 in Criminal Revision
Application Nos. 91/2014 and 92/2014 is liable to be
quashed and set aside with the direction to the learned
Sessions Judge, Nanded to give an opportunity of being
heard to the petitioners-accused or their counsel in the
suo motto revision proceeding and pass an appropriate
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orders in accordance with the law. Hence, following
order.
O R D E R
I. Writ Petition Nos.403/2015, 404/2015 and
405/2015 are hereby partly allowed.
II. The common Judgment and order passed by the
Sessions Judge, Nanded in Criminal Revision
Application Nos.91/2014 and 92/2014 is hereby
quashed and set aside.
III. The learned Sessions Judge, Nanded is hereby
directed to hear the Criminal Revision
Application No.91/2014 and 92/2014 and also
the suo-motto Revision Proceeding, afresh, by
giving an opportunity of being heard to the
petitioners-accused persons either personally or
through their counsel and pass an appropriate
orders in accordance with law.
IV. Writ Petitions are accordingly disposed of. Rule
is made absolute in above terms.
SD/-
( V.K. JADHAV )
JUDGE
...
aaa/-
