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In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
Aires Rodrigues, Goa
Versus
State through Public Prosecutor
CRIMINAL REVISION APPLICATION NO.17 OF 2010
Decided on : 12-04-2010
Criminal Procedure Code, 1973 - Sections 397, 401(5) and 482 - Appeal to be converted to revision - Order of Additional Sessions Judge challenged - Respondent prosecuted accused under Sections 143, 448 and 504 read with 149 of IPC - Petitioner discharged hence State chosen appeal for revision - Maintainability of appeal objected - Respondent filed claim to transfer appeal into revision - Allowed - Now this criminal revision application - Petitioner plea, Additional Sessions Judge had no intrinsic authority to award conversion - Section 397 of Cr PC bestows coexisting revisional jurisdiction on High Court and Sessions Court - Section 482 of Cr PC safeguards all accessible inbuilt powers permitted by High Court to assure justice - Petitioner may be right in contending Section 401(5) of Cr PC not awoke notice of Court but that is irrelevant - "If a procedure is not prohibited by Code it is permissible" - Court agree with it. - Court needs to be reminded that every Court is a Court of justice also and should not feel helpless in matters of procedure only because there is no specific provision made in that regard in the Code. We cannot expect the Criminal Courts to fold their hands and show their helplessness in matters of procedure, whenever the Code is found silent. As already observed the Code was not enacted to meet each and every situation which may arise in future. Therefore, in my view, Criminal Courts in matters of procedure are required to act on the principle that every procedure is permissible unless it is shown to be prohibited by the Code.
There is no factual foundation to consider whether the application dated 23.2.2010 of the Public Prosecutor was filed after the time expired for the purpose of filing a revision petition. Such point was also not raised before the learned Sessions Judge. Be that as it may, it is clearly stated by the learned Judicial Commissioner in the case of Paixao Fernandes and another v. Amelia de Souza and another, AIR 1977 GDD 8, that what is relevant is to find out whether the memo which was originally filed as one of appeal contains the material which a revision application must contain. It is not a case of the petitioner that in this case it does not. The learned Judicial Commissioner further observed that if an appeal is treated as a revision application, the treatment related back to the date on which the appeal is filed. I entirely agree with the said proposition. Therefore, the said judgment in the case of Paixao Fernandes and another v. Amelia de Souza and another (supra) is of no assistance to the case of the petitioner.
In view of the discussion supra, I find that there is no merit in this revision and, consequently, the same is hereby dismissed.
Criminal Procedure Code, 1973 - Section 482 - Scope - Held - It does not confer any new power on High Court, but it merely safeguards all existing inherent powers possessed by High Court, amongst other purposes, to secure the ends of justice.
1. Heard.
2. This revision is directed against order dated 26/03/2010 of the learned Additional Sessions Judge, Panaji, by which the learned Additional Sessions Judge has allowed to convert an appeal filed into a revision.
3. Some bare facts are required to be stated to dispose of this revision petition.
4. The respondent-State has prosecuted the petitioner-accused in C.C. No.85/2007/A under Sections 143, 448, 504, 506 read with 149 IPC. The petitioner was discharged by order dated 22/12/2009 of the learned CJM and as against that order, the respondent preferred an appeal instead of a revision on or about 28/2/2010. That appeal was registered under no.24/2010 and was allotted to the learned Additional Sessions Judge. The petitioner by his application dated 15/03/2010 objected to the maintainability of the said appeal on the ground that against an order of discharge, no appeal could be filed. The respondent filed another application on 22/03/2010, seeking permission to convert the said appeal into revision and the learned Additional Sessions Judge considered both the applications by the impugned order and allowed the respondent to convert the appeal into revision petition and in doing so, placed reliance on a judgment of Allahabad High Court in the case of Mahesh Kumar V/s. State (1978 Cr.L.J. 390) wherein it was observed as follows;
“The purpose of all rules of procedure obviously is to enable justice to be done. As such, every procedure which advances the dispensation of justice should be considered permissible unless it is prohibited. So in a purely procedural matter like the present one, what has been seen was not whether there was a specific provision in the Code of Criminal Procedure authorising the learned Sessions Judge to treat a revision application as an appeal but whether there was anything in the Cr.P.C. to bar him from doing so. It is not disputed that there is nothing in the Cr.P.C. to bar a revision application being treated as an appeal or vice versa. As such, I am of the opinion that the learned Sessions Judge could and ought to have allowed the application for treating the revision as an appeal after allowing the applicant to suitable amend their application.”
5. The learned Additional Sessions Judge distinguished some other decisions which were cited before her. Learned Counsel on behalf of the petitioner has not been able to cite any decision of this Court or for that matter of Apex Court holding a contrary view.
6. In the case of Maharashtra Small Scale Industries Development Corporation Ltd. V/s. Pradeep Wakhariya & Anr. (2007 (2) Bom. C.R. (Cri.) 620) this Court declined to grant the prayer of the petitioner therein to convert an application filed under Section 482 of the Code of Criminal Procedure, 1973 into an application for special leave to appeal. Likewise, this Court in unreported judgment dated 13/12/2006 in Criminal Revision Application No.61/2006 in the case of Nilesh Raikar V/s. Ramakant S. Karekar and another, declined to convert a revision application into an application seeking leave to appeal against an order of acquittal and chose to dismiss the revision application with liberty to the applicant/complainant to file proper application for leave to appeal following an earlier judgment dated 24/03/2006 in Criminal Revision Application No.1/2006 in the case of M/s. Mercantile Finance HousePvt. Ltd.
7. The contention raised is that the learned Additional Sessions Judge had no inherent power to grant the application of the respondent permitting it to convert the appeal into a revision as inherent powers are available only to the High Court under Section 482 of the said Code (Code of Criminal Procedure, 1973). It is also contended that on the day the impugned order was passed, filing of revision itself had become time barred. It is further submitted that Section 482 of the Code can be invoked only by the High Court and not by the Court of Sessions and although Section 401(5) of the C
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