Criminal Revision Application No.17 of 2010

12th April, 2010

Petitioner Counsel: Mr. A.F. DINIZ
Respondent Counsel: Ms. W. COUTINHO

Cases Cited:
Mahesh Kumar Vs. State, 1978 Cr.L.J. 390 [Para 4,8,12,13]
Maharashtra Small Scale Industries Development Corporation Ltd. Vs. Pradeep Wakhariya, 2007(2) Bom.C.R. (Cri.) 620 [Para 6]
Nilesh Raikar Vs. Ramakant S. Karekar, Criminal Revision Application No.61/2006 Dt.13-12-2006 [Para 6]
M/s. Mercantile Finance House Pvt. Ltd., Criminal Revision Application No.1/2006, Dt.24/03/2006 [Para 6]
State Prosecutor, 1973 Cr.L.J. 1288 [Para 12]
Shri. Waman Laxman Sawant Vs. Shri. Ashok Anand Sawant, 2005 ALL MR (Cri) 334 [Para 12]
AIR 1958 SC 376 [Para 13]
Dabur India Ltd. Vs. K. R. Industries, 2008 ALL SCR 2476 : 2008(10) SCC 595 [Para 14]
Paixao Fernandes Vs. Amelia de Souza, AIR 1977 GDD 8 [Para 15]

JUDGMENT

JUDGMENT :- Heard.

2. This revision is directed against order dated 26/03/2010 of the learned Additional Sessions Judge, Panaji, by which the learned Additional Sessions Judge has allowed to convert an appeal filed into a revision.

3. Some bare facts are required to be stated to dispose of this revision petition.

4. The respondent-State has prosecuted the petitioner-accused in C.C. No.85/2007/A under Sections 143, 448, 504, 506 read with 149 IPC. The petitioner was discharged by order dated 22/12/2009 of the learned CJM and as against that order, the respondent preferred an appeal instead of a revision on or about 28/2/2010. That appeal was registered under no.24/2010 and was allotted to the learned Additional Sessions Judge. The petitioner by his application dated 15/03/2010 objected to the maintainability of the said appeal on the ground that against an order of discharge, no appeal could be filed. The respondent filed another application on 22/03/2010, seeking permission to convert the said appeal into revision and the learned Additional Sessions Judge considered both the applications by the impugned order and allowed the respondent to convert the appeal into revision petition and in doing so, placed reliance on a judgment of Allahabad High Court in the case of Mahesh Kumar Vs. State (1978 Cr.L.J. 390) wherein it was observed as follows;

"The purpose of all rules of procedure obviously is to enable justice to be done. As such, every procedure which advances the dispensation of justice should be considered permissible unless it is prohibited. So in a purely procedural matter like the present one, what has been seen was not whether there was a specific provision in the Code of Criminal Procedure authorising the learned Sessions Judge to treat a revision application as an appeal but whether there was anything in the Cr.P.C. to bar him from doing so. It is not disputed that there is nothing in the Cr.P.C. to bar a revision application being treated as an appeal or vice versa. As such, I am of the opinion that the learned Sessions Judge could and ought to have allowed the application for treating the revision as an appeal after allowing the applicant to suitable amend their application."

5. The learned Additional Sessions Judge distinguished some other decisions which were cited before her. Learned Counsel on behalf of the petitioner has not been able to cite any decision of this Court or for that matter of Apex Court holding a contrary view.

6. In the case of Maharashtra Small Scale Industries Development Corporation Ltd. Vs. Pradeep Wakhariya & Anr. (2007(2) Bom.C.R. (Cri.) 620) this Court declined to grant the prayer of the petitioner therein to convert an application filed under Section 482 of the Code of Criminal Procedure, 1973 into an application for special leave to appeal. Likewise, this Court in unreported judgment dated 13/12/2006 in Criminal Revision Application No.61/2006 in the case of Nilesh Raikar Vs. Ramakant S. Karekar and another, declined to convert a revision application into an application seeking leave to appeal against an order of acquittal and chose to dismiss the revision application with liberty to the applicant/complainant to file proper application for leave to appeal following an earlier judgment dated 24/03/2006 in Criminal Revision Application No.1/2006 in the case of M/s. Mercantile Finance House Pvt. Ltd.

7. The contention raised is that the learned Additional Sessions Judge had no inherent power to grant the application of the respondent permitting it to convert the appeal into a revision as inherent powers are available only to the High Court under Section 482 of the said Code (Code of Criminal Procedure, 1973). It is also contended that on the day the impugned order was passed, filing of revision itself had become time barred. It is further submitted that Section 482 of the Code can be invoked only by the High Court and not by the Court of Sessions and although Section 401(5) of the Code provides for treating an application for revision as a petition of appeal, the reverse is impermissible.

8. The learned Public Prosecutor has only referred to the judgment of Mahesh Kumar Vs. State (supra), to oppose the present revision.

9. Section 397 of the Code confers concurrent revisional jurisdiction on the High Court and the Sessions Court. The powers to be exercised by the Sessions Judge are spelt out in Sections 397/399 of the Code and those to be exercised by the High Court are spelt out in Section 397/401 of the Code. Sub-section (2) of Section 399 of the Code provides that;

"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) & (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 ?"

Sub-section (5) of Section 401 of the Code to which the Sessions Judge could have recourse to, by virtue of Section 399(2) of the Code provides that;

"(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

10. Section 482 of the Code does not confer any inherent powers on the High Court. It only saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In other words Section 482 of the Code does not confer any new powers on the High Court, but it merely safeguards all existing inherent powers possessed by High Court necessary, amongst other purposes, to secure the ends of justice. The section provides that these powers which the Court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and no inherent powers have survived after the passing of the Code. Likewise, Section 151, CPC (Code of Civil Procedure, 1908) saves inherent powers of the Civil Courts and it provides that nothing in that Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Here again, it may be stated that Section 151 of the CPC does not confer any new powers on the Courts under the Code of Civil Procedure, 1908 but only saves what is inherent in a Court, to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

11. Didn't the Criminal Courts have any powers whatsoever, beyond those conferred by the Code of Criminal Procedure even in terms of procedure? The answer has got to be in the affirmative.

12. Shri. Diniz, the learned Counsel on behalf of the petitioner concedes that in terms of Sections 397 r/w Section 399 r/w Section 401(5) of the Code, it would have been permissible to the learned Sessions Judge to convert a revision petition into an appeal, when made under an erroneous belief that no appeal lies thereto, but the reverse is not possible and the contention appears to be that the Code does not provide for the same. That is a submission which was not accepted by the Allahabad High Court in Mahesh Kumar Vs. State (supra) and it is to be noted that there is no prohibition either, in the Code to convert an appeal into revision. Learned Counsel may be right in contending that the provision of sub-section 5 of Section 401 of the Code was not brought to the notice of the Court but that makes no difference. A Division Bench of Kerala High Court in the matter of the State Prosecutor reported in 1973 Cr.L.J. 1288, observed that Courts may act on the principle that every procedure shall be understood as permissible till it is shown to be prohibited by law. In the case of Shri. Waman Laxman Sawant Vs. Shri Ashok Anand Sawant & Anr. (unreported judgment dated 16/10/2004 in Criminal Miscellaneous Application No.60/2004) : [2005 ALL MR (Cri) 334] this Court observed that there was no provision in the Code providing for correction of name of an accused in the cause title of a complaint, but it had to be borne in mind that the Code was not enacted to meet each and every situation which human ingenuity may create from time to time. Courts have certain incidental powers which are very necessary for their very survival and existence. This Court therefore observed that if the learned JMFC corrected the name of A-1 in the situation explained above, it was in exercise of such powers that the said correction was made.

13. Converting an appeal into revision is a procedural aspect, as stated in Mahesh Kumar Vs. State (supra). Rules of procedure, whether criminal or civil, must serve the higher purpose of justice (see AIR 1958 SC 376). Every Court, from the very nature of its organization cannot be denied certain powers, which from the very nature of its organization are essential to its existence and protection and due administration of justice. These are incidental to its very existence and such procedural powers can always be resorted to unless specifically prohibited by any of the provisions of the Code. In other words, we need to be reminded that every Court is a court of justice also and should not feel helpless in matters of procedure only because there is no specific provision made in that regard in the Code. We cannot expect the Criminal Courts to fold their hands and show their helplessness in matters of Procedure, whenever the Code is found silent. As already observed the Code was not enacted to meet each and every situation which may arise in future. Therefore, in my view Criminal Courts in matters of procedure are required to act on the principle that every procedure is permissible unless it is shown to be prohibited by the Code.

14. Recognition of such incidental powers can be seen from Dabur India Limited Vs. K. R. Industries (2008(10) SCC 595) : [2008 ALL SCR 2476]. The Apex Court has stated:

"...Thus, whereas an incidental power is inherent in the court, a supplemental power may also be exercised, keeping in view the ultimate relief which may be granted by it. We may notice that this Court in Sakiri Vasu Vs. State of U.P. (2008(2) SCC 409) held that the Magistrate will have power to grant interim maintenance, although no such provision existed in Section 125 of the Code of Criminal Procedure, 1973.

29. Similarly, in Hindustan Lever Ltd. Vs. Ashok Vishnu Kate ((1995)6 SCC 326) this Court has held that the Labour Court will have the power to grant injunction as an incidental power."

15. There is no factual foundation to consider whether the application dated 23/02/2010 of the Public Prosecutor was filed after the time expired for the purpose of filing a revision petition. Such point was also not raised before the learned Sessions Judge. Be that as it may, it is clearly stated by the learned Judicial Commissioner in the case of Paixao Fernandes & Anr. Vs. Amelia de Souza and Anr. (AIR 1977 GDD 8) that what is relevant is to find out whether the memo which was originally filed as one of Appeal contains the material which a revision application must contain. It is not a case of the petitioner that in this case it does not. The learned Judicial Commissioner further observed that if an Appeal is treated as a Revision Application, the treatment related back to the date on which the appeal is filed. I entirely agree with the said preposition. Therefore, the said judgment in the case of Paixao Fernandes & Anr. Vs. Amelia de Souza and Anr. (supra) is of no assistance to the case of the petitioner.

16. In view of the discussion supra, I find that there is no merit in this revision and, consequently, the same is hereby dismissed.

Petition dismissed.