Author: Sushant Rochlani
It is a well-recognised principle of the common law tradition that ‘no one should be left without any remedy’. Down the centuries this principle has identified itself as a part of the natural justice, which runs as a golden thread throughout the Criminal Procedure Code. So, in those cases where no right to appeal is afforded by the Code, it has created a remedy whereby the aggrieved party can approach the Sessions Court or the High Court to seek the exercise its revisional jurisdiction. The provisions providing for revision are contained in Sections 397- 401 of the Code conferring concurrent powers for revision of a case on both the Sessions Court and the High Court.
The High Court and the Sessions Court enjoy wide powers with respect to revisional jurisdiction under these provisions. But inbuilt in these provisions are limitations on the powers of the revisional Courts. One such limitation is contained in Section 401(3) of the Code, whereby the High Court is not authorised to convert a finding of acquittal into one that of conviction. In this project, I have briefly explained the scope of the powers conferred by Sections 397 and 401 on the Appellate Courts. Then, I have attempted to analyze the limitations on the power of High Court under Section 401(3) of the Criminal Procedure Code.
OVERVIEW OF SECTION 397
Section 397: Calling for records to exercise powers of revision: –
(1) The High Court or any Sessions Judge may call for and examine the records 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, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation. – All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application, under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them.
Meaning of the ‘finding’, ‘sentence’ and ‘order’
In this section the words ‘finding’, ‘sentence’ and ‘order’ have their own meaning, which has to be applied. ‘Finding’ means ‘a conclusion on a question of law by a judge’ and includes a conviction or an acquittal. ‘Sentence’ means ‘a direction by which punishment is prescribed and meted out to a person who has been convicted of an offence’. ‘Order’ means ‘a command that something shall be done, discontinued or suffered’, but it does not include ‘sentence’ or ‘finding’. The word ‘proceeding’ has been used in the context of the proceeding going on in the inferior Court of whom records have been called by the Court. It includes everything, which is recorded by an inferior Court.
Under this Section, the High Court possesses a general power of superintendence over the actions of courts subordinate to it. On its administrative side, the power is known as the ‘power of superintendence’. On the judicial side, it is known as the ‘duty of revision’. The High Court can, at any stage, of its own motion if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for records and examine them. The High Court’s right to have these matters brought to its notice and examine the record for itself is as much a part of the administration of justice as its duty to hear appeals and revisions. The object of the revisional jurisdiction, unlike appellate jurisdiction, is to confer a sought of supervisory power. The purpose is to rectify miscarriage of justice. Whether substantial justice has been done is the main consideration. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals in respect of grave dereliction of duty or flagrant abuse or excess of authority, or violation of the elementary principles of justice. And this power is to be exercised most sparingly and only in appropriate cases.
Discretion in the exercise of revisional jurisdiction should be exercised within the four corners of this section whenever there has been miscarriage of justice in any manner whatsoever. This revisional jurisdiction should not be lightly exercised, as it cannot be invoked as a right. Revision is not a right but is only a procedural facility given to a party whereas appeal is the continuation of the proceeding. While considering the legality, propriety or the correctness of a finding or a conclusion, the revising court does not dwell at length upon the facts and the evidence of the case. The Court in revision considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence.
When the Superior Courts has power to interfere under this Section:
1. The High Court or the Sessions Court possesses the power to interfere at any stage of the case, and when it is brought to its notice that a person has been subjected to harassment of an illegal prosecution.
2. Whenever, a material defect in law or procedure occurs and it is brought to the notice of the Court, it has the power and duty to interfere.
Sub-section (3) provides a limitation that once a revision has been filed by one party and it has been heard by a competent Court, then later on that party cannot file a second revision petition in any Court.
HIGH COURT’S POWER OF REVISION UNDER SECTION 401
The object of revisional jurisdiction is to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction. And the idea is to correct miscarriage of justice, which may arise from various causes, such as: –
• Misconception of law; or
• Irregularity of procedure; or
• Neglect of proper precautions; or
• Apparent harsh treatment.
The revisional jurisdiction can be exercised only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. The High Court would be justified in interfering: –
• Where the trial court had wrongly shut out evidence; or
• Where material evidence has been overlooked by the trial Court or the Court of appeal; or
• Where the acquittal had been based on a compounding of the offence not permitted by law; or
• Where the Appellate Court had wrongly held evidence admitted by the trial Court to be inadmissible, etc.
The Code of Criminal Procedure has conferred wide powers on the High Court to interfere in all cases of incorrectness, illegality or impropriety of any finding, sentence or order, of the irregularity of any proceeding of the inferior Courts by taking such measures or passing such orders as could be passed by an Appellate Court. The powers of the High Court under Section 401 are very wide ad are not limited to the powers mentioned in sub-section (1) which merely describes some of the relief’s which High Court may grant in exercising its revisional powers, but it is not exhaustive. At the hearing of an application in revision admitted on the ground of sentence only, a judge is competent to interfere with both the conviction and sentence. The powers conferred on him under Section 401 cannot be in any way fettered by the provisions of Section 397 under which the records have been called for.
Powers, which the High Court can exercise in revision:
• Power to order retrial
• Power to order commitment or set aside commitment
• Power to direct further inquiry
• Power to allow composition
• Power to order restoration of property
• Power to consider case of non-appealing accused
• Power to consider the case of non-applicant
• Power to expunge remarks
• Power to stay proceedings
• Power to enhance sentence
NO REVISION WHERE RIGHT OF APPEAL EXISTS
Under Section 401(4) of the Code, the High Court is precluded from exercising the powers of revision at the instance of the accused who had a right of appeal but did not exercise it. Where a complaint is made by a Court under Section 340, the accused has a right of appeal to a superior Court and it is not competent to the High Court to quash the proceedings in revision. But there is no inflexible rule that where the accused has a right to appeal and does not exercise it, the High Court cannot exercise its revisional powers under this section; but such powers should be sparingly used and in very exceptional circumstances. Ordinarily, when an accused has a right of appeal but has not exercised the same, the High Court will not permit him to apply in revision instead. But where the effect of not allowing the revision is to make him suffer long periods of imprisonment when under the law a sentence of only a few months could be imposed on him, the High Court will interfere under the general powers of revision. When the accused person shows cause against his conviction he himself initiates no proceedings. In such a situation the accused person is on the defensive and the act of showing cause against proceedings initiated against him cannot properly be said to be proceedings ‘at his instance’ which the High Court is enjoined not to entertain. Where the appeal has been withdrawn, it is duty of the High Court, when a matter has been brought to its notice which it considers should be corrected, to deal with it under its revisional powers .
HIGH COURT’S POWER OF INTERFERENCE WITH ORDERS OF ACQUITTAL
Section 401 (3)
Nothing in this Section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
Under this Section, the High Court, while exercising revisional jurisdiction, cannot convert a finding of acquittal into one of conviction. This provision has been incorporated with a view to protect the sanctity of the procedural setup provided under the Code. The finding entered into by the trial Court which passed the decision of acquittal is made after following a lengthy process, which inherently incorporates the principles of natural justice, the respect for the natural rights, human rights and fundamental rights of both the accused and the complainant. But there have been circumstances where the express bar manifested in the provision has been subdued to enable the High Court to convert a finding of acquittal into that of conviction.
The High Court can set aside an acquittal if there is error on a point of law or no appraisal of the evidence at all. When the government has not chosen to file an appeal against acquittal, it is not the duty of the High Court to reweigh the evidence from its own point of view and reach contrary inference. Though it is open to the High Court in revision to set aside an order of acquittal even at the instance of private parties where the State does not prefer an appeal, the jurisdiction should be exercised only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequent flagrant miscarriage of justice. Where the order passed by the High Court under this Section is based merely and solely on the conclusion it reached on re-appreciating the evidence itself and the conclusion of the Appellate Court leading to the order of the acquittal does not suffer from any legal infirmity, the High Court’s jurisdiction to set aside the order of acquittal cannot be legitimately invoked. The revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or; there is grave miscarriage of justice. Even assuming that an illegal order of discharge is an order of acquittal, the High Court has power to interfere and order retrial. The High Court may take further evidence in the interests of justice before setting aside an order of discharge.
Where the Appellate Court has wrongly ruled out evidence, the High Court in setting aside the order of acquittal should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also. The jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon a re-appreciation of the evidence. The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal by the High Court in revision.
While setting aside an order of acquittal passed by the trial Court, the only course open to the High Court is to send the case back to the trial Court for retrial. But where the trial Court has convicted the accused and the Appellate Court has acquitted him, the High Court may order either a rehearing of the appeal or a rehearing of the original case, depending on the facts of each case. Where the entire evidence is there and it was the Appellate Court, which ruled out the evidence that had been admitted by the trial Court, the proper course if to send back the appeal for rehearing.
In exercising its revisional jurisdiction the High Court can set aside acquittal and order retrial when there exists: –
• A manifest illegality in the judgment of the Court of Sessions ordering the acquittal; or
• There is a gross miscarriage of justice.
Though sub-section (1) of this Section authorizes the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by Section 386(3). But sub-section (3) specifically excludes the power to convert a finding of acquittal into one of conviction. This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court can, in the absence of any error of law or a point of law, reappraise the evidence or reverse the findings of fact on which the acquittal is based, provided only that it stops short of finding the accused guilty and passing a sentence on him.
The Supreme Court has cautioned that it is incumbent on the High Court to see that it does not convert the finding of such acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into one of conviction. Though it is certainly the rule in view of the express prohibition contained in sub-section (3) that in no case the High Court will be entitled in the exercise of the powers conferred under Section 401 of the Code to convert a finding of acquittal into one of conviction yet the Supreme Court has indicated that in exceptional cases such powers can be exercised specially when such exercise of power is required to prevent a miscarriage of justice. The High Court should not interfere even: –
• If a wrong view of law is taken; or
• If there is misappreciation of evidence.
When the accused was tried for the offence under section 302, I.P.C., but has been convicted under Section 304, Part II, I.P.C., and no express acquittal is recorded under Section 302, I.P.C., it has been held by the Supreme Court following the Privy Council decision in Kisan Singh v. Emperor , that there is an implied acquittal of the offence punishable under Section 302, I.P.C. Provisions of Section 401(3) are attracted even in the case of an implied acquittal. Kisan Singh’s case has made it clear that bar of section 401(3) applies when the accused is convicted of a lesser offence than charged. If the accused is charged with murder, but is convicted of culpable homicide not amounting to murder by Sessions judge punishable under Section 304, I.P.C., it amounts to an acquittal in respect of charge of murder under Section 302, I.P.C. The bar of sub-section (3) applies not only to a total acquittal, but also to acquittal by implication when the accused charged for major offence is convicted on a less minor offence. An order under Section 335 of the Code is not an order of conviction. Therefore, where the accused was acquitted by the trial court on the ground that he was insane, the passing of an order under Section 335 by the High Court in revision does not amount to an alteration of an order of acquittal into one of conviction.
Revisional jurisdiction when invoked by a private complainant against an order of acquittal can be exercised only in exceptional cases when interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. The revisional jurisdiction cannot be invoked merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.
Approach to the Supreme Court being under Article 136 of the Constitution, the limitation imposed by section 401(3) does not bind the Supreme Court. In any case power under Article 142 of the Constitution is available to pass such orders as may be deemed appropriate to do complete justice.
The power under Section 401 includes the power of altering the finding, which power as pointed out by the Supreme Court in G.D. Sharma v. State of U.P. , includes the power of convicting an accused person, who is charged with one offence, of another offence. But apart from the question of prejudice which must necessarily arise when the ingredients of the two offences are different, and, particularly, when the conviction is of an offence graver than the offence charged, any alteration of the finding cannot involve an acquittal or conviction of an offence which the Court that tried the accused was not competent to try.
The powers conferred on the High Court under Section 401 are very broad and comprehensive. The High Court has power to initiate enquiry into any case where there appears to it any dereliction on part of the subordinate Courts. The rider on this power as provided by sub-section (3) explicates that the High Court shall not under Section 401 exercise its power to convert an acquittal into conviction. But the Courts have themselves through various judicial pronouncements created exceptions to this limitation. The Supreme Court and the High Courts have, even in the presence of precise and clear legislative enactment, made law in this regard, thereby widening the scope of their powers and jurisdiction. It is nobody’s case that the exceptional categories which are read into the provision by the Courts are unnecessary or transgression in the sphere of legislature. The Courts have only, true to their duty, and have filled the gaps in law left by the legislature. The categories, which are identified by the Courts as particular situations where the restriction imposed by the Code will not be applicable, are recognised in the Civil Procedure Code and Administrative law. The Courts have imported these tested legal rules from other branches of law for making the provisions in Code just and effective and to secure the essence of the moral, ethical and social content, which appeal to its followers.