TMI Blog1974 (12) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ted recording of evidence preparatory to the framing of a charge on October 12, 1973. The recording of evidence was concluded on January 16, 1974. Thereafter, for some reason or the other, the case was adjourned from time to time without passing any order as to the framing of the charge. 3. In the meantime, on April 1, 1974, the Code of Criminal Procedure, 1973 came into force and thereafter, as already noted above, the interlocutory order framing the charge against the accused for the aforesaid offence was made by the learned Magistrate on April 9, 1974. 4. Under the new Code, the powers of revision of this Court are to a certain extent curtailed, inasmuch as sub-section (2) of section 397 provides that the powers of revision conferred by sub-section (1) of that section shall not be exercised either by this Court or by the Sessions Court in relation to any Interlocutory order passed in any appeal, inquiry, trial or other proceeding. It is in view of this provision that the question as to the maintainability of the present revision application arises since the interlocutory order against which the present revision petition has been directed has been passed after the new Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhi JJ. Mr. Gill, the learned advocate who appeared for the petitioners, argued the case before the Division Bench at some length and then prayed for leave to amend the petition so as to challenge the Constitutional validity of section 484 of the new Code. Accordingly, additional grounds were added by the petitioners on October 28, 1974 and the matter has now been placed before this Division Bench for final disposal of the preliminary objection. 9. Mr. Gill for the petitioners posed three questions for our consideration, namely: (1) On a true interpretation, construction and effect of section 484 of the Code of Criminal Procedure, 1973 the proceeding out of which this revision petition arises continues to be governed by the old Code until its final disposal by the highest Court. (2) If it is found that there is any ambiguity in the language of section 484 of the new Code, it should be resolved in favour of the continuation of the old Code of Procedure to all matters which were pending at any stage starting from investigation to the final disposal of the case by the highest Court. (3) If there is no ambiguity in the language and the construction put forth above can not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seat in Court with the accused in the dock in front of him and not when the charge is framed, that is to say, the trial commences when the Magistrate takes cognizance of the case. In view of these rulings, for the purposes of the present case, we would proceed on the basis that on the date on which the new Code came into force the present case was at the trial stage and, therefore, in view of the provisions of clause (a) of sub-section (2) of section 484 of the new Code, the trial of this case was governed by the provisions of the old Code. There is no dispute so far as this position is concerned. 12. Now, as already noted, it was after the coming into force of the new Code that the charge was framed in this case by passing an interlocutory order on April 9, 1974 and it is the correctness of that order that is challenged by the present revision petition. On a plain reading of section 397 (2), prima facie it does appear that this being an interlocutory order, this Court is prevented from exercising revisional powers in the present case. 13. The argument of Mr. Gill, however, is that the proceeding which was pending on the date of the coming into force of the new Code should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial or other proceeding, that is to say, this Court is prohibited by this provision from revising any interlocutory order passed by the trial Court during the continuance of any appeal, inquiry, trial or other proceeding before it. It is noteworthy that neither section 397 of the new Code nor section 435 of the old Code gave any right to a party to a proceeding In the trial Court to approach the High Court for revising any order or for exercising its revisional jurisdiction in respect of any matter. In other words, these sections only conferred powers of supervision on the High Court and the Sessions Court to examine the correctness, legality or propriety of any finding, sentence or order recorded by the lower Court, and from the language used by the Legislature it is obvious that this power could be exercised sua motu and no right was conferred on any party to approach this Court to invoke the revisional jurisdiction of this Court. 15. No doubt, a practice has developed that usually it is on an application by a party this Court has exercised its revisional jurisdiction. The reason why such a practice seems to have developed is that in the very nature of things it is almost im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine, to undergo rigorous imprisonment for six months more. On appeal, the appellate Court confirmed the order of conviction and sentence. Being aggrieved by the judgments and orders of the Courts below, the accused moved the High Court in its revisional jurisdiction under section 439 of the old Code. During the pendency of the revision petition, the High Court had stayed the proceedings for realisation of the fine pending the hearing of the petition. During the pendency of the case in the High Court, the revision petitioner-accused died leaving him surviving his widow and five children, all of whom were minors except the appellant before their Lordships. The appellant made an application that he being one of the heirs of the deceased accused was interested in the proceedings and, therefore, prayed that he might be added as a party to the criminal revision application filed by his father so as to enable him to challenge the order of conviction and sentence aforesaid. This application, which was termed by the High Court as application for substitution, was heard and the Bench of the High Court passed its order holding that the principle of section 431 of the Code applied to a crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1942). It provided a special procedure for the trial of certain offences and section 26 of the Ordinance prohibited the interference by the High Court with either of the proceedings or of the convictions. However, the convicted persons contended that the Ordinance itself was ultra vires the law-making powers of the Governor General and prayed for a declaration to that effect and to exercise revisional jurisdiction and to set aside the convictions, or alternatively, to reduce the sentence. It is not necessary to go into the detailed discussion of the facts of that case. In the course of the discussion, the Court made the following observations (p. 291): ..Under the ordinance a man may be brought before a Magistrate charged with an offence and it is left to the District Magistrate to say whether that man should be tried by the ordinary Courts and have the ordinary rights of appeal and revision under the Criminal Procedure Code and the High Court's powers under its Letters Patent or whether he should be tried by a Magistrate sitting as a Special Magistrate with very limited rights of appeal and no right as to revision. The man's rights as regards appeal and revision are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, it appears to us that if the Legislature had intended to confer any right on a party to approach this Court in revision, the Legislature would not have failed to use appropriate phraseology, such as, that the High Court or the Sessions Court may call for and examine the record of any proceeding either suo motu or on an application of any party just as it had done in section 26 of the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950). That section dealt with powers of review and revision of Custodian and sub-section (1) was worded in the following terms : (1) The Custodian. Additional Custodian or Authorised Deputy Custodian may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under (his Act which is pending before, or has been disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding, and may pass such order in relation thereto as he thinks fit. In our opinion, therefore, this argument too has no force. 20. Then a point was also sought to be made that a statute which takes a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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