Legal Provisions of Section 401 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
The section deals with the powers of the High Court as a Court of revision. It is a discretionary jurisdiction vested in the High Court which should be exercised sparingly to decide questions as to legality, propriety regularity or correctness of any finding, sentence or order recorded or passed by the inferior Criminal Court. The section also empowers the High Court to direct tender of pardon to the accused as contemplated by Section 307.
The High Court can exercise revisional powers under this section either suo motu, that is, on its own initiative or on a petition of any aggrieved party or any other person. The exercise of revisional power by the High Court is, however, subject to two limitations which are as follows:
(1) Where a person or someone on his behalf has made an application for revision before the Sessions Judge under Section 399 (3), no further revision can be entertained by the High Court at the instance of such person; and
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(2) Where an appeal lies but it was not availed of by the person, no revision can be entertained by the High Court at the instance of the party who could have appealed but did not do so.
The High Court may even direct additional evidence to be taken in case of a revision against discharge of the accused in the interest of justice. But otherwise the jurisdiction of the High Court in a criminal revision is drastically restricted and it cannot embark upon re-appreciation of the evidence.
Sub-section (1) of Section 401 provides that in the exercise of revisional jurisdiction the High Court may exercise any of the powers conferred on it as a Court of Appeal subject to exceptions specified there under. These exceptions are (1) In an appeal, the High Court is empowered under Section 386 (a) to reverse an order of acquittal into conviction and vice versa, but in its revisional power it cannot convert a finding of acquittal into a conviction as per sub-section (3) of Section 401. It has no jurisdiction to convert finding of acquittal into one of conviction by seeking recourse to indirect method of ordering retrial.
(2) In appeal, the High Court will interfere if it is satisfied about the guilt of the accused but in revision it may interfere only when it is brought to its notice that there has been miscarriage of justice.
(3) An appeal cannot be dismissed unless the accused or his pleader is afforded an opportunity to be heard. But in revision the accused is to be given opportunity to be heard only if the order to be passed is going to be prejudicial to him.
The revisional power of the High Court may be said to be wider in scope than its appellate powers in the sense that the High Court can correct irregularities or improprieties of procedure which come to its notice. Again, the provision of abatement of appeal on death of the accused does not apply to revision petition and it can exercise its revisional power even after the death of the accused.
As already discussed in the context of Section 397 (2) the High Court shall not use its revisional power in relation to an interlocutory order passed by an inferior criminal Court in any appeal, inquiry, trial or other proceeding.
Though the High Court is not empowered to set aside an order of acquittal in exercise of its revisional jurisdiction but where the acquittal is based on compounding of an offence and the compounding is invalid in law, such an acquittal may be set aside by the High Court in the exercise of revisional powers.
Though the High Court has no power to set aside an order cf acquittal and convert it into conviction of the accused under this section but it has the power to direct re-trial of the case when there has been patent illegality or gross miscarriage of justice in the findings of the inferior Court.
The High Court should order re-trial of the case under its revisional jurisdiction only in very exceptional cases where the “interests of public justice require interference for the correction of gross miscarriage of justice”. It cannot be exercised merely because the inferior Court has misappreciated the evidence or taken a wrong view in interpreting any provision of law.
The Supreme Court in Bindeshwari Prasad Singh v. State of Bihar held that the Revisional Court was not justified in re-appreciating the evidence on record and coming to a different conclusion. The judgment of the trial Court in’ the instant case was not perverse. No defect of procedure was pointed out.
There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of trial vitiating the trial itself. Therefore, the revisional Court should not have interfered with the finding of acquittal and accused should not have been made to face second trial.
In State v. M. Jankiraman, revision was filed by the complainant against acquittal of the accused before the High Court. Appeal against the same judgment was also filed by State before the Division Bench of the High Court which was delayed by more than 800 days.
The fact as to pendency of revision against the said judgment was not brought to the notice of Division Bench which passed order refusing to condone delay and dismissed the appeal giving finality to the order of the trial Court but this order of the Division Bench was not brought to the notice of Single Judge in revision. Held, that Single Judge could not have entertained revision. Much less allowed upsetting the finality of the trial Court’s judgment.
The case of Sheetala Prasad v. Srikant, involved question of appreciation of evidence in revision against acquittal. The accused (appellants) were convicted by the Sessions Judge for the offence of unlawful assembly and assault under Sections 148, 342, 427 read with Section 149, IPC and acquitted them of charge under Section 308, IPC and directed their release on probation, High Court in revision filed by a private complainant held the appellants guilty of offence under Section 308 read with Section 149 and not under Section 324 read with Section 149 and remanded the case. Held, that such a conclusion could have been recorded only in a properly constituted appeal filed by the State Government. Therefore, the High Court had exercised revisional jurisdiction with material illegality and irregularity resulting into miscarriage of justice, hence its order was liable to be set aside.
No Revision where right to Appeal exists:
Sub-section (4) provides that the party having right of appeal cannot apply for revision. The Cr.P.C. provides a remedy, by way of appeal under Chapter XXX and if the party does not file an appeal against an order of the inferior criminal Court, he will not be permitted to prefer a revision against that order. But legal bar does not stand in the way of High Court’s exercise of power of revision suo motu. It can itself call for the records of proceedings of any inferior criminal Court and has power to enhance the sentence by exercising its revisional jurisdiction.
In the case of CM. Rao v. Rohit Kumar Bhavsar, the Food Adulteration Act, 1954 prescribes a minimum sentence of six months’ imprisonment but the Magistrate awarded imprisonment only till rising of the Court and a fine of rupees three hundred.
The Government did not prefer an appeal for enhancement of the sentence but the complainant Food Inspector moved a revision petition to the High Court of Gujarat. Rejecting the petition, the Court observed that the petitioner could not take advantage of plea bargaining and then approach the High Court making grievance that sentence imposed was less than minimum prescribed under the Act.
Revision may be treated as Appeal:
Sub-section (5) of the section vests a discretionary power in the High Court to treat a revision petition as an appeal and deal with it under its appellate jurisdiction under Chapter XXX. But it can do so when an appeal against the order of the inferior Court lies but the petitioner has filed a revision under an erroneous belief that an appeal does not lie and when it is in the interest of justice to do so.
Enhancement or Reduction of Sentence:
The High Court, under its revisional jurisdiction does not exercise power of enhancing the sentence in every case in which the sentence passed appears to be inadequate. It would interfere when it is convinced that the sentence passed is manifestly and grossly inadequate.
The District Magistrate, a Sessions Judge or the Government pleader may draw the attention of the High Court to a sentence which is inadequate and deserves to be enhanced or the High Court can also suo motu call for the record of a particular case where it is of the opinion that the sentence awarded is grossly inadequate.
There is a conflict of opinion of the High Courts whether a private person can move the High Court in revision for enhancement of the sentence. The Supreme Court has, however, ruled that a private person can move the High Court in revision for enhancement of the sentence by the Sessions Judge, but not as of right.
It has been further held that there is no limitation on the power of the High Court as regards enhancement of sentence to the extent of maximum prescribed by the Penal Code, except in cases tried by Magistrates. But before doing so, the Court has to be issued a show-cause notice against the enhancement of his sentence.
If after hearing the State, i.e., the Government pleader, the High Court comes to a conclusion that the sentence imposed on the accused is too severe and needs to be reduced, it may reduce it exercising its revisional jurisdiction. However, it cannot be reduced below the prescribed statutory limit, if any, provided in the Indian Penal Code or the relevant Act.
As stated earlier, the jurisdiction of the High Court in revision of criminal cases is severely restricted and confined only to the questions of law. It cannot embark upon a re-appreciation of evidence.
The High Court does not normally interfere with a concurrent Finding of fact. For instance, in a case, where nine kilograms of silver was purchased by the accused for a paltry sum of Rs. 2900/- and no entries were made in the ‘edger-books and the recoveries were made at his instance, the Rajasthan High Court refused to disturb the conviction under Sections 411/414, I.P.C. based on concurrent finding of guilt against the accused by two lower Courts.
The High Court in exercise of its revisional power will not go into the question of sufficiency of material before the lower Court for its decision or order. Where the trial has dealt with the matter fully, the High Court will not interfere and disturb the order of the trial Court.
Thus where the Magistrate in his finding held that the husband had neglected to maintain his wife and never tried to take her back, the High Court of Calcutta refused to interfere holding that it is a finding of fact and the revisional Court is not competent to re-assess the evidence in the light of the Supreme Court’s ruling in Pathumma v. Mohammad.
While disposing of revision petition the High Courts must ensure that the principles of natural justice are not violated. Thus in Umanath Pandey v. State of U. P., the High Court disposed of revision petition without issuing notice to respondents and other parties. On appeal against this, the Supreme Court held that there had been blatant violation of the principles of natural justice and therefore the matter was remitted to High Court to consider the revision afresh after issuance of notice to respondents.k