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TMI Blog2012 (7) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning Muddamal article no. 2 (₹ 35,000/- i.e 70 notes of ₹ 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 10 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 397, it cannot be read. There is no bar in the provision prohibiting invoking the power of the High 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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. Undoubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruth 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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