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®

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 30th DAY OF JULY 2012

BEFORE

THE HON’BLE MR.JUSTICE JAWAD RAHIM

CRL. R.P. NO.1262/2008

BETWEEN:

1. SMT J.UMADEVI,

W/O N.RATHNAKAR BABU,

AGED ABOUT 31 YEARS,

RESIDING AT NO.758, 8TH CROSS,

5TH MAIN, R.T.NAGAR,

BANGALORE

2. SMT.J.USHA,

W/O RAVISHANKAR RAJU,

AGED ABOUT 29 YEARS,

RESIDING AT NO.107,

“PRIYADARSHINI APARTMENT”,

1ST FLOOR, 1ST STAGE,

INDIRANAGAR,

BANGALORE

… PETITIONERS

(BY SRI M.S.RAJENDRAPRASAD, ADV.,)

AND:

STATE OF KARNATAKA

BY INDIRANAGAR POLICE,

BANGALORE

… RESPONDENT

(BY SRI RAJA SUBRAMANYA BHAT, HCGP.,)

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THIS CRL.RP FILED UNDER SECTION 401 CR.P.C

PRAYING TO SET ASIDE THE ORDER DATED 13.08.2008

PASSED BY THE X ADDL. CMM., MAYO HALL, BANGALORE

IN C.C.NO.22101/2007, SO FAR AS THE PETITIONERS ARE

CONCERNED AND CONSEQUENTLY DISCHARGE THE

PETITIONERS.

THIS REVISION PETITION COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT MADE THE

FOLLOWING:

O R D E R

This revision petition has gained access to this court

under Section 397, Cr.P.C. by which petitioners who are

arraigned as accused in C.C.22101/07 seek an order of

discharge.

2. When the matter is taken up for admission,

preliminary objection is raised by the respondent-State that

the revision before this court is not maintainable as the

order impugned is passed by the Additional Chief Judicial

Magistrate (CJM) relating to prosecution for the offences

punishable under Sections 498-A and 506 read with Section

34, I.P.C. Any order passed by such court is amenable to

revision under Section 397, Cr.P.C., before the court of

session / District Judge.

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3. Consequent to such preliminary objection raised by

the State, I have allowed learned counsel on both sides to

address arguments for and against.

4. Sri Rajendra Prasad, learned senior counsel for the

petitioner reiterates that the High Court and sessions court

enjoy concurrent jurisdiction under Section 397, Cr.P.C. and

therefore, petitioners have the option to choose either of

the courts. Technically they cannot be non-suited only on

the ground that the sessions court has revisional power.

5. On behalf of the State, it is urged, concurrent

jurisdiction conferred by the statute does not give right to a

party to by-pass the court to which appeal or revision would

lie, to approach the court in hierarchy. It is contended, if it

is allowed, we will be opening the floodgates to approach

the High Court, by-passing the sessions court, and if that is

done, it will against the Forum provided in the Code of

Criminal Procedure.

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6. I have bestowed attention to the grounds urged by

learned counsel on both sides in support of their respective

contentions.

7. At the outset, it needs to be mentioned that the

power under Section 397, Cr.P.C. cannot be read in isolation

but with the provision of Section 401, Cr.P.C. The said

provisions are extracted hereunder:

“397. Calling for records to exercise powers of

revision- (1) The High Court or any sessions Judge

may call for an 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

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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.

401. High Court’s powers of revision – (1) In the

case of any proceeding the record of which has

been called for by itself or which otherwise comes

to its knowledge, the High Court may, in its

discretion, exercise any of the powers conferred on

a court of Appeal by sections 386, 389, 390 and

391 or on a Court of Session by section 307 and,

when the Judges composing the Court of revision

are equally divided in opinion, the case shall be

disposed of in the manner provided by section 392.

(2) No order under this section shall be

made to the prejudice, of the accused or other

person unless he has had an opportunity of being

heard either personally or by pleader in his own

defence.

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(3) Nothing in this section shall be deemed

to authorise a High Court to convert a finding of

acquittal into one of conviction.

(4) Where under this Code an appeal lies

and no appeal is brought, no proceeding by way of

revision shall be entertained at the instance of the

party who could have appealed.

(5) Where under this Code an appeal lies

but an application for revision has been made to

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.”

Thus, it is clear, under the Code of Criminal Procedure, the

sessions court/district court come within the meaning of

‘inferior criminal court’ in relation to High Court, but so far

as other the criminal court established under the Code is

concerned, it would be the court inferior to the sessions

court.

8. Conferment of revisional jurisdiction is explicit. There

can be no two opinions on it. However, the language of

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Section 401, Cr.P.C. is quite clear. In that, the power

exercisable by the High Court is virtually equivalent to the

power conferred on the appellate court, whereas Section

397 refers to revisional power only for the purpose of

satisfying itself or himself as to the correctness, legality or

propriety of any finding, sentence or order passed by the

inferior court.

9. When we compare the power conferred under Section

397 with the power under Section 401, Cr.P.C., it is clear

the provision spells out the latter provision confers enlarged

or amplified power. It is for this reason such power is not

conferred on the sessions court. Hence, it can be said

revisional power exercisable by the sessions court comes

within defined limit.

10. With this distinction, if we now read Section 397,

Cr.P.C. with reference to conferment of concurrent revisional

jurisdiction upon the sessions court and High Court, if

revision is filed in the High Court and records are called for,

High Court may, apart from considering the issues referred

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to power in Section 397, can consider all other aspects like a

court of appeal, exercising power under Section 401, Cr.P.C.

This benefit is lacking before the sessions court. In this

view, when a person feels that the order impugned suffers

not only from infirmities enumerated in Section 397, Cr.P.C.,

but needs to be considered within a wider sphere, then

despite the right of revision being available before the

sessions, he will be justified in approaching the High Court

under Section 397, Cr.P.C. to avail the benefit of wider

power conferred under Section 401, Cr.P.C.

11. This aspect has not been considered as could be seen

in any of the case laws cited. All that has been considered

in the decisions cited is only with regard to Section

397,Cr.P.C. which spells out concurrent jurisdiction. In fact,

the decision of the learned single Judge of this court

reported in ILR 2003 KAR 883 in the case of

S.SATHYANARAYANA .vs. STATE OF KARNATAKA BY

INSPECTOR OF POLICE, BANGALORE refers to criminal

rules of practice and statutory right. But we are concerned

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with the statutory right and thus rules of practice cannot be

equated to substantive law.

12. Be that as it may, the ultimate opinion formed by the

learned single Judge is, there is no bar for the litigant to

approach the sessions court or the High Court. The

question, however, is, whether this view could be taken as a

binding precedent.

13. The decision in the case of CENTRAL BUREAU OF

INVESTIGATION .vs. STATE OF GUJARATH reported in

AIR 2007 SC 2522 may be of relevance. That is the

decision rendered by the apex court in the following

circumstances:

• In Spl.Case ACB.2/96, evidence had to be

recorded. It came for hearing on 7.1.1999

before the sessions judge, Noida, the Bench

Clerk of the court called for Muddamal from the

office of Nazir which was given to the clerk, Sri

Shukla, and in turn given to Sri Kiran Joshi,

senior clerk.

• During recording of evidence of witnesses,

when Muddamal was required to be identified,

in ai bag containing Muddamal article no.2

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(Rs.35,000/- i.e. 70 notes of Rs.500/-

denomination), nothing was found.

• A rigorous search was launched which was of

no avail. Cash kept in the bag was missing.

Thus, a complaint was filed in Noida Town

police station which was registered in

ICR.22/99 for the offence punishable under

Section 381, I.P.C. by the court officer.

• The IO could not get any fruitful result in the

matter for 9 months.

• The Nazir of the district court of Kheda at

Nadiad wrote a letter dated 29.9.1999 to the

Chief Judicial Magistrate requesting him to

hand over investigation to CBI.

• The CJM passed order on 29.9.1999 directing

CBI to investigate the case and report to him at

the earliest. CBI felt such order was improper

and filed an application for recalling it.

• CJM rejected the application by order dated

29.9.1999 against which CBI approached the

High Court.

• The High Court declined to entertain the

application being of the opinion that CBI is a

litigant like any other individual. It cannot

claim any preferential right or position.

Therefore, it had to appear first before the

sessions court in revision under Section

397,Cr.P.C. and then come to the High Court to

get the order revised.

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• Rejection of the revision by the High Court on

the question of concurrent jurisdiction was

assailed in the Hon’ble Supreme Court.

14. The apex court considering the rival contentions

opined thus:

We find that the High Court was not right in its

approach. This Court in Central Bureau of

Investigation through S.P.Jaipur v. State of

Rajasthan and another (2001) 3 SCC 333 has

laid down the principles as to whether direction

can be given to the CBI under Section 156(3)

Cr.P.C. It was held that magisterial power

cannot be stretched under the said provision

beyond directing the officer incharge of a police

station to conduct the investigation and no such

direction can be given to the CBI. In the instant

case, the first information report was already

registered and in that sense Section 156(3)

Cr.P.C had no application. There is substance in

the plea of learned counsel for the CBI tht

routine matters should not be entrusted to the

CBI as the investigating agencies of various

States can effectively investigate such matters.

Of course, where it is shown that the

investigating agency is not doing proper

investigation and/or that there is reason to

believe that there is laxity in the investigation, a

direction may be given to the CBI to investigate

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the matter in appropriate cases. This case is not

one where any complexity was involved. It was

a routine case of theft of Muddamal property.

The learned Sessions Judge, therefore, rightly

appears to have set aside the orders passed by

the learned Chief Judicial Magistrate. The High

Court had no basis to doubt the bonafides of the

CBI in moving the application before it under

Section 397 Cr.P.C. There was no bar for the

High Court to entertain the said petition. The

criticism levelled against the CBI and its officers

and cost imposed do not have any legal sanction.

They are accordingly set aside.

From this, it is evident, what had happened was, the

intervening court of session was overstepped or by-passed.

The order passed by the magistrate was questioned by the

CBI before the High Court. In this view, the apex court

observed that CBI could not be faulted for having

approached the High Court in a revision as already the issue

was considered by the sessions court.

15. Be that as it may, as we have seen from the

conspectus of both the provisions, as there is no bar

engrafted in Section 397, it cannot be read. There is no bar

in the provision prohibiting invoking the power of the High

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Court without approaching the sessions court. But it must

be kept in mind that under Section 397, Cr.P.C., there are

two more restrictions: (i) there is no second revision

permissible, meaning thereby that if a person has availed

the right of revision by approaching the sessions court,

against such order of the sessions court, no second revision

would lie to the High Court by the same person. (ii) The

right to approach the High Court is not restricted. Propriety

has played the same role.

16. Though there is legal permissibility of a litigant

approaching either the sessions court of the High Court for

the relief provided by this section, we are contemplating a

situation where an efficacious remedy could be availed.

Conferment of concurrent jurisdiction undoubtedly appears

to be decentralized power of revision which is accessible to

the litigant. We cannot expect the litigant to travel from

extreme areas of the state to the High Court at a cost which

he cannot bear. Therefore, in this context, the power of

revision is conferred on the sessions court also to exercise

power on the ‘inferior criminal court’. But at the same time,

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the High Court’s power not restricted but is more enlarged.

Besides, it also depends on the relief a person seeks.

Under Section 401, Cr.P.C., if the impugned order is

questioned on other grounds apart from the grounds

permissible under Section 397, Cr.P.C., then in all fairness,

it will be right action before the High Court, as otherwise,

such grounds will not be available before the sessions court

under Section 397. Being of this view, I am constrained to

over-rule the objections of the State that revision under

Section 397, Cr.P.C. is not maintainable. But propriety

demands that a litigant must avail the benefit of such

revision in the court lower in hierarchy rather than opening

the floodgates of the High Court.

17. With this conclusion on the preliminary objection

raised, I have examined the impugned order passed by the

CJM.

18. The order passed is on an application under Section

239, Cr.P.C. The factual matrix on the basis of which

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petitioners were arraigned for the offences punishable under

Sections 498-A, 506 read with Section 34, I.P.C. are:

a) Mallika lodged report alleging she married the 1st

petitioner according to Hindu rites on 23.1.2004 and tied the

nuptial knot in TTD choultry. She commenced matrimony

with him in the house occupied by his father-Jairam and

mother-Gangamma.

b) It is alleged accused nos.4 and 5-Umadevi and

Usharani indulged in several acts of torture. It is alleged,

before and after marriage, accused demanded and received

dowry in cash and kind. They demanded Rs.5,00,000/-

within 2 months after marriage, whereupon part of the

amount was given. They were not satisfied, and on

23.4.2004, 1st accused-her husband subjected her to

physical torture. Accused nos.2 to 5 joined him in beating

and pulling her out of the house and thereafter criminally

intimidated her. They threatened to kill her using kerosene

or gas. However, on 25.4.2000, 1st accused brought and let

her in her parents’ house with no sign or remorse on him.

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Consequently, she had no choice but to seek police help on

the basis of which case was registered for the offences

indicated above in NCR.49/05 which was later translated

into Crime No.32/06. She further brought out that during

this period, a case for divorce was filed in M.C.789/05

against her with mala fide intention.

c) The SHO accepted her report and on the basis of

investigation, has filed final report raising charges for the

offences indicated above.

d) The jurisdictional magistrate has taken cognizance

and issued process in response to which petitioners who are

accused nos.4 and 5 sought discharge.

e) The magistrate did allow them opportunity, but by

the impugned order, rejected it, compelling them to face

charge with the other accused. That order is questioned

here.

19. I have already referred to the allegations in the report

which became the basis for arraigning therein. The

complaint spells out her grievance towards her husband.

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Incidents of violence are quoted, but the overt acts to

perpetrate cruelty is attributed only to her husband. There

is an omnibus statement made against them that they were

involved in the assault, they beat and pulled her. If we

accept it as prima facie case, it refers only to one incident.

Besides, there is no categoric statement in the complaint

that the house in which she entered matrimony was

occupied by accused nos.4 and 5-petitioners herein. When

they were not living there, then the circumstances under

which they could torture her, are not spelled out.

20. Undoubtedly, the case is triable as a warrant case.

Therefore, the provisions of Sections 238 to 242, Cr.P.C.

would apply, for which the legislative intent is to carve out a

stage to enable the Magistrate to decide whether prima facie

case is made out. This is found in Section 239, Cr.P.C.

which postulates ‘When accused shall be discharged – If,

upon considering the police report and the documents sent

with it under section 173 and making such examination, if

any, of the accused as the Magistrate thinks necessary and

after giving the prosecution and the accused an opportunity

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of being heard, the Magistrate considers the charge against

the accused to be groundless, he shall discharge the

accused, and record his reasons for so doing.’ We shall

now examine the scope of such exercise by the Sessions

Judge under Section 227, Cr.P.C.

21. Section 227, Cr.P.C. is part of Chapter 18 which

applies to trial before the sessions court. It reads thus:

‘Discharge – If upon consideration of the record

of the case and the documents submitted

therewith, and after hearing the submissions of

the accused and the prosecution in this behalf,

the Judge considers that there is not sufficient

ground for proceeding against the accused, he

shall discharge the accused and record his

reasons for so doing.’

The language of Sections 239 and 227 are different. The

scope of power exercisable to grant discharge under Section

227 is less compared to the power of discharge conferred on

the Magistrate under Section 239. It is for this reason

Sessions Judge is required to examine only the record of the

case and documents submitted therewith for ascertainment

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as to whether a case is made out for framing charge or

discharge. For doing so, the Sessions Judge can only ‘hear’

the submission of the prosecution and the accused. But

under Section 239, the requirement is different. It

envisages ‘ If upon consideration the police report and the

documents sent with it under section 173 and making such

exmianation, if any, of the accused as the Magistrate

thinks necessary and after giving the prosecution and the

accused an opportunity of being heard, the Magistrate

considers the charge against the accused to be groundless,

he shall discharge the accused, and record his reasons for

so doing.’

22. Therefore, examination of the accused is permissible

under Section 239, undoubtedly, for ascertainment about

the truth or otherwise of the allegations made, which is not

contemplated in Section 227. Therefore, it implies that the

magistrate cannot merely on the basis of reference to the

charge sheet, reject the request of the accused to discharge

only because prima facie case is made out. He is required

not only to examine the records submitted along with the

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final report under Section 173, Cr.P.C., but also to examine

the accused for ascertainment as to whether a case is made

out for framing charge. All the contentions of the accused

need to be taken into consideration.

23. The order impugned passed by the magistrate in this

case is a truncated order. He has rejected the grounds

urged by the accused only on the basis of written

arguments. The relevant portion is at paragraph 4 of the

impugned order which reads thus:

‘….The arguments canvassed in written

arguments are touching the merits of the case

and at this stage of the case the court is only to

look into whether there are any material on

record to frame charge against the accused. The

scrutiny of entire chargesheet clearly goes to

indicate that there are sufficient and satisfactory

material to direct the accused to answer the

charge for the offences punishable u/s 498-A,

506(B) r/w 34 of IPC and also Section 3 and 4 of

the D.P Act. The grounds urged by the accused

are touching the merits of the case and at this

stage of the case, merit of the case cannot be

discussed. Hence, court is satisfied as to the

materials placed on the record to direct the

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accused to answer the charges. There are no

grounds to discharge the accused at this stage of

the case. In the result, I pass the following:

ORDER

The application filed by the accused 1 to 5

u/S 239 of Cr.P.C is hereby rejected. A1 to A5

are hereby directed to answer the charges for

the offences punishable u/S 498-A, 506(B) r/w

34 of IPC and Section 3 and 4 of the D.P Act.’

This approach appears to be irrational, and against the

mandate of Section 239, Cr.P.C. which requires the

magistrate to examine the accused and ascertain to what

extent prosecution would succeed in proving charge. Merely

because the allegations are of serious nature, it does not

warrant framing of charge, specially under Section 239,

Cr.P.C. Hence, the very approach and the reason for

rejecting the request of the petitioners is unsustainable. It

is accordingly set aside.

24. The question is, whether remand is necessary, or

finality has to be given. As could be seen from the

impugned order, the learned trial judge has extracted the

nature of allegations made against the petitioners who are

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shown as accomplices in the crime with their parents and

brother. The allegation so extracted itself does not make

out any case for trial against them. In this view, I am

satisfied they are entitled for discharge.

25. Hence, the revision succeeds in entirety. Petitioners

herein who are arraigned as accused nos.4 and 5 are

discharged. However, any observation made during the

course of this order on the allegations made in the

complaint shall not prejudice the prosecution or accused in

any manner during trial of other accused.

SD/- JUDGE

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