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As the code says that there is no right to appeal in every case and it is confined
to such cases as are specifically provided by the law. Even in such specified cases
the code allows only one appeal and a review of the decision of the appellant
court is not normally permissible by way of further appeal to yet another
higher court. In order to avoid the possibility of any miscarriage of justice in
cases where no right of appeal is available the code has devised another review
procedure, namely REVISION. Section 397 to 405 of Criminal Procedure Code
deals with the powers of revision conferred on the higher courts and the
procedure to regulate these powers. The powers of revision conferred upon the
higher courts are very wide and are purely discretionary in nature. There fore
no party has right t heard before any court exercising such powers.
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The basic object behind the code in section 401 is to empower the high court to
exercise the powers of an appellant court to prevent failure of justice in cases
where the code does not provide for appeal. The power however is to be
exercised only in exceptional cases where there has been a miscarriage of
justice owing to: - a defect in the procedure or a manifest error on the point of
law, excess of jurisdiction, abuse of power, where decision upon which the trial
court relied has since been reversed or overruled when the revision appeal is
being heard. In exercising the power of revision, which is discretionary, the
court should always bear in mind the limitation that grab of exercising its
power of revision; it cannot ion effect exercise the power of appeal in the face of
statutory prohibitions.
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The revisional powers though are quite wide, have been circumscribed by
certain limitations. Such as (A) in such cases where an appeal lies but there is
no appeal brought in, originally no proceeding by way of revision shall be
entertained at the instance of the party who would have appealed. (B) The
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But in revision the High Court is not bound to hear the applicant or
his pleader save while enhancing any sentence, in which case the
accused shall be heard as of right, this is in section 401(2) or
criminal procedure code.
5. There is no provision for abatement of revision proceeding as for
appeal.
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make such application and move the High Court to call for the records and to
exercise its power under section 401, in revision unless there are exceptional
circumstances. But when the records come up before the High Court on appeal
against conviction by the accused, the High court entertained a revision petition
for enhancement of the sentence filed by a brother of the deceased and
enhanced the sentence, after issuing notice upon the accused. The Supreme
Court upheld this order as a suo motu exercise of its revisional power, for the
purpose of which anybody could draw the attention of the High Court to the
illegality or irregularity in the order or sentence. In short, the application of a
person who has no locus standi may be treated as information to induce the
High Court to precede suo motu in a present case. 1) Section 401(4) says that
when a party is entitled to appeal against an order, it is not entitled to apply in
revision without first appealing against such order. Hence, where a state
government has failed to appeal against an order or acquittal, it cannot move
in revision against that order. Under sub section (4) of section 378, a
complainant is entitled to appeal if (a) the case has not been instituted on his
complaint and (b) if the High Court grants him special leave to file such appeal.
Hence, in such a case, the complainant cannot apply for revision without first
seeking the special leave to appeal from the High Court. The complainant, in
cases other than the above, or even a third party, may apply for revision,
provided only there are exceptional grounds such as: Absence of jurisdiction,
Miscarriage of Justice.
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The usual rule of practice is that the High Court would not excise its revisional
power under section 401, in a case where the aggrieved party has appealed
against the judgment or order before an inferior court, until that appeal is
disposed of. But there may be exceptional cases where the ends of justice
required that appeal itself be heard by the High Court and n such a case, it is
open to the High Court to call for the records of the appeal under its revisional
power, hear and dismiss the appeal and thereafter enhance the sentence under
its revisional power.
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But 401(3) prohibit the High Court from converting a finding of acquittal into
one of conviction. This places limitations on the power of the HC to set aside a
finding of acquittal in the revision, particularly when the state had not thought
fit to appeal to the HC against the finding of the acquittal and where the HC is
exercising the revisional jurisdiction at the instance of private parties. In a
number of decisions, the Supreme Court has held that the revisional power of
the HC to set aside the order of the acquittal at the instance of private parties
should be exercised only in exceptional circumstances where there is some
glaring defect in the procedure or there is a manifest error on the point of law.
It would follow from the above that where an acquittal is based on the
compounding an offence and the compounding is invalid under the law, the
acquittal would be liable to be set aside by the HC in the exercise of such
jurisdiction.
In a case, the acquittal recorded by the Sessions Court was reversed and the
accused was convicted by the HC, acting on the letter from a prosecution
witness, by treating it is a criminal revision petition. The SC disapproved of the
HC's action in the following words:
No doubt the HC in exercise of its revisional powers can set aside an order of
acquittal if it comes within the ambit of exceptional circumstance enumerated
above, but it cannot convert an order acquittal into an order of conviction. The
only course left is to order for a retrial.
Case Laws
In this chapter researcher would like to discuss some of the case laws which
deals with the Section 401 of the Criminal Procedure Code.
Connected herewith is the question about the options open to the High Court in
case a judgment of acquittal, when examined within the parameters laid down
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case a judgment of acquittal, when examined within the parameters laid down
by D.Stephens vs. Nosibolla (Supra), is found to call for interference. The High
Court cannot convert the acquittal into conviction. The earlier Code of 1898 also
gave similar powers to the High Court by Section 439. The earlier Code and the
present one by Sections 439(4) and 401(3) respectively have imposed a
restriction by enacting that the revisional jurisdiction cannot be exercised to
convert an acquittal into conviction:
Sec. 401 High Court's powers of revision.
Nothing in this section shall be deemed to authorize a High Court to convert a
finding of acquittal into one of conviction.
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In the case of Bansi Lal and Othres v. Laxman Singh : - The five appellants were
tried by the Court of Additional Sessions Judge, Delhi on a charge of murder
under Section 302 read with Section 34 of the Indian Penal Code. After a very
detailed consideration of the evidence adduced in the case, the learned
Additional Sessions Judge acquitted the appellants giving them the benefit of
doubt. The respondent herein, who is a son of the deceased victim of the
murder preferred a criminal revision petition before the High Court of Delhi
under Section 397/401, Cr.P.C. challenging the order of acquittal passed by the
learned Additional Sessions Judge. A learned Single Judge of the High Court
allowed that revision petition, set aside the acquittal of the appellants and
remitted the case to the trial Court for retrial.
4. Aggrieved by the said judgment of the High Court the appellants have come
up to this Court with this appeal and the main contention raised by them is that
the learned Single Judge of the High Court has transgressed the bounds of his
revisional jurisdiction in re-appreciating the evidence and setting aside their
acquittal.
In the case of Jaspreet Singh v. A.P Singh:- This revision petition under Sections
397/401, Cr.P.C. is directed against the judgment of learned Additional Sessions
Judge, New Delhi, dated 18.2.2005, sitting as a Court of appeal, thereby
dismissing the appeal filed by the petitioner herein against his conviction of
sentence.
The petitioner herein was prosecuted by the DRI for the offence punishable
under Sections 132/135(1) (a) of the Customs Act (for short the Act) and after
trial was convicted for the said offences and sentenced to 6 months rigorous
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imprisonment and fine of Rs. 1000/- for the offence punishable under Section
132 of the Act or in default of payment of fine to undergo one and a half
month's simple imprisonment. The petitioner was further sentenced to 3 years
rigorous imprisonment and a fine of Rs.1000/- or in default of payment of fine
to further undergo simple imprisonment of one and a half months. Aggrieved
by his conviction and sentence the appellant preferred an appeal but without
success, the learned appellate Court upholding the conviction as well as the
sentence. Even the plea for reduction/modification of sentence did not find
favour with the appellate Court.
Though in the body of the revision petition, the petitioner sought to assail both
conviction and sentence as illegal and unwarranted, but during the course of
hearing of the petition, Mr. Mehta learned Counsel for the petitioner stated at
the Bar that he did not wish to press the grounds on which conviction of the
petitioner has been challenged. Accordingly, he confined his submissions only so
far as it relates to the quantum of sentence as awarded to the petitioner by the
learned trial Court and upheld by the appellate Court.
In the case of Lalsai Khunte v. Nirmal Sinha and Ors the Supreme Court of
India has observed that: - The convict had earned a remission and the period of
imprisonment reduced by the period of remission would have had the effect of
removing disqualification as the period of actual imprisonment would have
been reduced to a period of less than two years. The Constitution Bench held
that the remission of sentence under Section 401 of the Criminal Procedure
Code (old) and his release from jail before two years of actual imprisonment
would not reduce the sentence to one of a period of less than two years and save
him from incurring the disqualification.
An order of remission thus does not in any way interfere with the order of the
court; it affects only the execution of the sentence passed by the court and free
the convicted person from his liability to undergo the full term of imprisonment
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inflicted by the court, though the order of conviction and sentence passed by the
court still stands as it was. The Page 1084 power to grant remission is executive
power and cannot have the effect which the order of an appellate or revisional
court would have of reducing the sentence passed by the trial court and
substituting in its place the reduced sentence adjudged by the appellate or
revisional court.
In the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and
Ors. The Supreme Court observed that the Revisional Court is empowered to
exercise all the powers conferred on the Appellate Court by virtue of the
provisions contained in Section 410 CrPC. Section 401 CrPC is provision
enabling the High Court to exercise all powers of Appellate Court, if necessary,
in aid of power of superintendence or supervision as a part of power of revision
conferred on the High Court or the Session Court. Section 397 CrPC confers
power on the High Court or Sessions Court, as the case may be, "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 regularity of any
proceeding of such inferior court." It is for the above purpose, if necessary, the
High Court or Sessions Court can exercise all appellate powers. Section 401
CrPC conferring powers of Appellate Court on the Revisional Court is with the
above limited purpose. The provisions contained in Section 395 to Section 401
CrPC, read together, do not indicate that the revisional power of the High Court
can be exercised as a second appellate power.
Bibliography
Books Referred
K.N. Candrasekharan Pillai (rev.), R.V. Kelkar, Lectures on Criminal Procedure,
4th ed. 2006, Eastern Book Company, Lucknow.
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P. Sarkar and P.M. Bakshi (rev.), S.C. Sarkar, The Law of Criminal Procedure,
7th ed. 1996, rep. 2001, India Law House, New Delhi.
Y.V.Chandrachud (rev.), Ratanlal and Dhirajlal, The Code of Criminal
Procedure, 16th ed. 2002, rep. 2003, Wadhwa & Co. Nagpur, New Delhi.
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