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Report No. 41

Chapter XXXII

Reference and Revision

32.1. Introductory.-

Ordinarily, the judgment or order of a criminal court is open to correction only appeal; but all such orders are not under the law appealable, and to avoid the possibility of any miscarriage of justice, in such cases, another process called 'revision' has been devised by the Criminal Procedure Code, and detailed rules governing the exercise of the reversional power are contained in sections 435 to 440.

32.2. Section 432(1).-

Before, however, considering those powers, it is necessary to mention two other provisions contained in section 432 which enable an inferior court to consult the High Court on a matter of law in certain circumstances. Su.-section (1) of that section provides that if a criminal court (not being a High Court) has to decide whether a particular enactment is constitutionally valid, and feels that it is not, but finds that neither the High Court to which the court is subordinate nor the Supreme Court has pronounced on that enactment, the court should make a reference to the High Court for the decision of that question. The intention here is that the validity of laws possibly in conflict with the Constitution should be decided authoritatively and quickly. This is a satisfactory method, although of course not many occasions arise for the adoption of this course.

32.3. Section 432(2).-

Su.-section (2) of section 432 provides that a Presidency Magistrate may refer any question of law arising before him to the High Court for decision. Other Magistrates and courts have no such power to consult the High Court. The reasons for confining this method to the Presidency Magistrate are that their judgments are directly appealable to the High Court and many judgments are not appealable at all; and, apart from this, these courts are located in the same place as the High Court.

It has been said that this distinction between Presidency Magistrates and others should discontinue, the suggestion being that all courts should have the power of consulting the High Court on questions of law. We are satisfied that such a course would place too heavy a burden on the High Courts, without any corresponding advantage. The reference to "Presidency Magistrate" will be replaced by "Metropolitan Magistrate".

32.4. Reference by High Court to Supreme Court not necessary.-

Another suggestion1 requiring more careful consideration is that a High Court should be empowered to refer a question of law to the Supreme Court if the High Court finds that other High Courts have, on that question expressed different views. It does, of course, happen.-and not infrequentl.- that a particular provision of law is understood by one High Court in one sense and by another High Court in a different and possibly opposite sense; and since there are a number of High Courts, differences of opinion on such matters are bound to arise.

The argument behind the present suggestion is that conflicting opinions of different High Courts make the law uncertain, and the uncertainty should be quickly resolved at the instance of the High Court itself and not left to the initiative of the parties who may or may not be disposed to approach the Supreme Court. It is, of course, desirable that the law should be certain; but it is even more important that the law should be settled in a satisfactory manner. Our High Courts are competent enough to settle the most difficult questions of law that may arise, and there is no reason to think that they need the assistance of the Supreme Court at every step.

That different High Courts may, on occasions, entertain different views on the same matter is inevitable; but we do not consider it such a calamity as the suggestion seems to assume. On the other hand, the entertainment and expression of different views leads to a clarification of the real problem to be solved, and the Supreme Court should be allowed the advantage of considering all the different views when a sufficiently important case actually arises and one or other of the parties feels sufficiently interested to move the Supreme Court. Meanwhile, of course, the law in each State or area subject to the jurisdiction of a High Court remains clear and certain.

Looking at the suggestion from the practical point of view, we feel that, if accepted, it might well flood the Supreme Court with references of this kind, which may have to be decided hastily and somewhat unsatisfactorily. We are, therefore, not disposed to accept the suggestion.

1. Suggestion of Shri B.C. Sen, Retired Public Prosecutor, Calcutta: F. 3(2) 5.-L.C., Pt. II.

32.5. Section 433.-

In section 433 the reference to "the Magistrate" should be replaced by reference to "the Court".

32.6. Scheme of revisional power.-sections 435 to 439.-

We then come to the revisional powers. In general terms, the scheme for the exercise of revisional powers, is this. Under section 435, the High Court, the Sessions Judge and the District Magistrate have concurrent power to call for and examine the record of proceedings before a Magistrate, and see if any illegality or impropriety has been committed. (The section also mentions the Su.-divisional Magistrate, but he is now to be deleted from the scheme). If it is found that any complaint has been wrongly dismissed under section 203 or any accused person wrongly discharged, then a further inquiry into the case can be ordered by the examining authority (section 436).

Further, if it is found that any accused person should have been committed for trial to the sessions court but has been wrongly discharged, the authority examining the record can order a committal to be made (section 437). In case the illegality or impropriety is of some other kind, the matter has to be considered by the High Court (section 438), and the High Court can make any order it thinks proper.

The powers of the High Court under section 439 are very wide; it has all the powers of a court of appeal and may enhance the sentence. The only restriction is that it cannot change an acquittal into a conviction, although of course it can order a r.-trial. There is little doubt that it is necessary that the High Court should have these wide revisional powers, and experience shows that they are being exercised with care and in the interest of justice.

32.7. Suggestion to vest powers in Session Courts.-

It has been suggested that some of these powers can be safely entrusted to the Session Courts and that would relieve some of the congestion of work in the High Courts. In the 14th Report,1 the Law Commission said:

"A further measure which will relieve congestion in this category of work needs consideration. Could some of the revisional powers now being exercised by the High Courts be entrusted to sessions judges ? The Judicial Reforms Committee of Uttar Pradesh2 recommended that sessions judges should be given full powers to hear and determine all criminal revisions except revisions against orders of acquittal and revisions for enhancement of sentences.

The evidence before us generally favoured the grant of revisional jurisdiction to this extent to the sessions judge. There was general agreement that in most petty matters a party applying for revision labours under a disadvantage in that he has to take the matter to the High Court. The view was also expressed that there was no reason why sessions judges who are entrusted with the trial of every important case and are competent to impose even the penalty of death should not be empowered to deal with minor matters in revision and be required to submit them to the High Court for its final orders.

It is anomalous that a sessions judge should be able to deal with and dispose finally an appeal from a sentence passed by a first class magistrate, but that he should not be competent to revise an order passed by a third class magistrate. We are, therefore, of the view that sessions judges may well be invested with powers to pass final orders in revision in all matters other than petitions against orders of acquittal and for enhancement of sentence."

1. 14th Report, Vol. 2.

2. Report of the U.P. Judicial Reforms Committee, (195.-51), p. 63.

32.8. Commission's view.-

Somewhat similar views have been expressed in some suggestions received by US..-.-3 We have given a good deal of thought to this matter, and considered in detail the implications of the recommendation, but we have considerable doubt its practical value. As we have said, the revisional power given to the High Courts is wide; not only are the judgments and final orders subject to examination, but also interlocutory decisions. The High Court is able to maintain one single standard for interference in such matters; but if this power descends to the courts of session, it is very doubtful if a uniform standard can be maintained.

There is, then, the plain fact that the High Court can and does, by its prestige, make its decisions acceptable to a large number of people, which would not be the case with the courts of session. At the same time, we think that if session courts are allowed to interfere with the proceedings in the magistrates' courts while they are pending, the result would be large number of revision petitions for that purpose. It is true, that a sessions court can, on appeal, reverse the decision of a Magistrate of the first class but cannot revise the decision of the third class Magistrate.

This seeming anomaly, however, loses its point when it is remembered that the decision of a court of session is still open to correction by the High Court, as is the judgment of the Magistrate of the third class. The fact is, that a party who can afford the expense, is generally not satisfied till it has obtained the verdict of the High Court, and the delegation of any power of the High Court to the sessions court might merely mean that the same work will have to be done twice over at two levels.

It has to be remembered that no statutory provision can bar the right of a party to approach the High Court for doing justice in a criminal matter; and if, at present, that power of the High Court under Articles 226 and 227 of the Constitution is not freely invoked, it is because the revisional power under section 439 of the Code of Criminal Procedure vests in the High Court, and is enough for practical purposes. Nor are we satisfied that criminal revisions form such a large part of the congestion of work in the High Courts that some relief in that respect would justify disturbing the present scheme, which is not shown to have worked unsatisfactorily.

1. Report of the U.P. Committee for Investigation into the Causes of Corruption (1963), p. 55 and pp. 242, 243.

2. F. 3(2)/5.-L.C., Pt. II, E. No. 33 and 35 (Suggestion of two State Governments).

3. F. 3(2)/5.-L.C., Pt. III, S. No. 49(a) (Suggestion of a High Court Judge).

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