The rule of practice laid down by the Full Bench in Alapati Sriramamurthy's case is inconsistent with the scheme of the new Code of Criminal Procedure, 1973.

CHINNAPPA REDDY, J.

( 1 ) IN Alapati Sriramamurthy, In re, a Full Bench of the Andhra pradesh High Court following Veera ramayya v. Seshavataram, laid down a rule of practice that, except under exceptional circumstances, the High Court would not entertain a revision petition under sections 435 and 439 of the Criminal Procedure Code of 1898, unless sessions Judge was moved in the first instance. While laying down the rule of practice the Full Bench noticed that such was the rule of practice followed by the high Courts of Allahabad, Bombay, Calcutta etc. , though not of the Madras high Court or the Andhra Pradesh High court until the decision in Veera Ramayya v. Seshavattram. The Full Bench thus consciously departed from the practice followed by the Madras High Court and the Andhra Pradesh High Court till then, with a view to fall in line with the other High Courts. But that was under the Criminal Procedure Code of 1898. The Code of 1898, has now been repealed and the Code of Criminal Procedure, 1973 has been taken its place. Our learned brother Chennakesav reddy, J. , has referred to us the question whether the rule of practice would continue to be followed after the coming into force of the new Code.

( 2 ) SECTION 435 of the Code of Criminal procedure, 1898, enabled the High Court or any Sessions judge or District Magistrate to call for and examine the record of any proceeding before any inferior criminal Court situated within the local limits of its or his 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. It also provided that if an application had been made either to the Sessions Judge or the District Magistrate no further application should be entertained by the other of them. Section 436 enabled the High Court or the Sessions judge, on an examination, of the record under section 435 or otherwise, to direct the District Magistrate by himself or by any Magistrate or by any Magistrate subordinate to him to make further inquiry into any complaint which had been dismissed under section 203 or section 204 (3) or into the case of any person accused of an offence who had been discharged. Section 437 enabled the Sessions Judge or the District Magistrate, on examining the record of any case under section 435 or otherwise, if he considered that such case was triable exclusively by the Court of Session and that an accused person had been improperly discharged by the inferior Court, to cause such person to be arrested and instead of directing a fresh enquiry order him to be committed for trial upon the matter of which he had been improperly discharged. Section 438 enabled the sessions Judge or the District Magistrate, on examining under section 435 or otherwise, the record of any proceeding, to report for the orders of the High Court the result of such examination. Section 439 empowered the High Court, in the case of any proceeding the record of which had been called for by itself or which had been reported for orders or which otherwise came to its knowledge, to exercise any of the powers conferred on a Court of appeal, etc. Thus, except in the limited class of cases an improper discharge or an improper dismissal of a complaint for which provision for interference by the Sessions Judge was made in sections 436 and 437, Criminal Procedure Code, the sessions Judge was not competent to exercise any revisional powers such as those conferred on the high Court by section 439, Criminal procedure Code. The sessions Judge could only report the result of his examination to the High Court for orders under section 438, Criminal Procedure code, notwithstanding that he was concurrently empowered with the High court to call for and examine the records under section 435, Criminal Procedure code. The High Court, of course, always held the power to exercise revisional powers whe

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