397. Calling for records to exercise powers of revision
(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, 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 purposes 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 the other of them.
An order revisable under Ss. 397 and 401 cannot be challenged by invoking the extraordinary jurisdiction of High Court under S. 482 if it is not challenged in revision before the expiry of period of limitation. Aggrieved party must take recourse to a specific remedy, if any, provided in law. But same cannot be done after period of limitation has expired, through filing an application under S. 482.
If the husband has not applied to Magistrate under S. 126(2) to set aside ex parte order of maintenance before coming in revision, the revision filed by him before Sessions Judge is not maintainable.
An application or petition under S. 482 simpliciter or S. 482 read with Art. 227 of Constitution simpliciter is available to party who has availed remedy of revision under S. 397. However, its exercise is restricted to rare and exceptional cases. While exercising these powers care needs to be taken to see that bar of S. 397(3) is not circumvented by contrivance and shift and therefore substance and not form, must be the deciding factor.
The High Court’s inherent power under S. 482 is not repelled when revisional power under S. 397 overlaps, in case High Court refuses to entertain application under S. 482 for quashing Magistrate’s order which directs issue of summons against petitioners simply on ground that revision lies against such order. It is not within High Court’s power to refuse to entertain it as revision on purely technical ground that the certified copy of impugned order was not enclosed along with petition as mandated under relevant High Court rules when original order, along with all the records, was presented before High Court.
To quash the order of summoning only limited grounds are available namely;
- Where allegations made in complaint and evidence adduced in support of the same even if measured for their face value, does not amount to any criminal offence;
- Where allegations made in complaint and evidence adduced in support of the same is inherently improbable and patently so absurd that no reasonable and prudent person can conclude that sufficient ground is there for proceeding;
- Where complaint is laced with any fundamental legal defect.
S. 397(1) of Code enables the revision of the order of dismissal of complaint for non-prosecution. Suo motu powers of revision of High Court are conferred in terms under S. 397(1). In case the Magistrate has no material before himself on basis of which he could issue processes against accused to stand his trial, making the accused to stand his trial would amount to gross abuse of process of court. Consequently notwithstanding the dismissal of revision application of accused under S. 397, High Court can invoke its inherent powers to quash such proceedings before the Magistrate. In revision, the Magistrate’s discretion, judicially exercised, to grant exemption from persona appearance under S. 205 cannot be interfered with.
A court of revision is neither a third court on facts, nor a court of unlimited jurisdiction on facts. Its jurisdiction has to be exercised with circumspection and the limits of the same are well defined. In suitable case, court is not averted from treating a petition filed under s. 482 as petition filed under S. 397. It can grant necessary relief if so warranted by the facts and exigencies of the case. The magistrate is not vested with any power to review or restore complaint dismissed due to absence of complainant. The available remedies include either filing fresh complaint on same facts or getting the order of dismissal of complaint set aside by court of Sessions or High Court in exercise of revisional powers.
There is no provision in Cr.P.C. which bars revision application from being treated as an appeal or vice versa. Revisional Court cannot impose condition of handing over of possession of hotel to complainant while entertaining application for bail and in such case, parties are empowered to agitate their rights before competent Civil Court. In case S. 165-A, IPC did not exist on the date on which offence was committed, conviction of accused under S. 165-A, IPC would be illegal. Hence, appeal against such offence would be considered a revision. The revisional powers of High Court u/S 19(4) of Family Court Act is revisional power simpliciter. It is totally devoid of the revisional powers of High Court either under C.P.C or for that matter under the Cr.P.C. Therefore, there is question of giving a nomenclature either as a Cr.P.C or as a C.P.C to such a petition u/s 19(4) of the family court act.
Under S. 107 of Government of India Act (1915); a chartered High Court was empowered to revise order of subordinate Courts under its powers of superintendence. Under sub-s. (2) of S. 224 of the Government of India Act, 1935, a High Court had no power to revise orders of subordinate Courts. In case the accused is not committed to Court of Session by the Magistrate holding inquiry under Chap. 18 (old Code) at the instance of private party i.e. the informant, the order of Magistrate could be revised.
Private party has no locus standi to invoke revisional jurisdiction in case the proceedings before the Magistrate in all cases had proceeded on a police report. This is especially applicable when State had preferred revision in order to safeguard the interest of informant. The revision filed by injured is maintainable where injured is the affected party and if State has not filed revision. In case the State was not party to proceedings before inferior court in complaint case which was dismissed at initial stage of conducting pre-charge enquiry, State would not be the necessary or interested party in revision petition filed against it as well. Through Article 227 of Constitution of India every High Court is conferred with the power of superintendence over all Courts and Tribunals throughout the territories with respect to which it exercises jurisdiction.
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