S.S.SANDHAWALIA, J.

1. Can the High Court acting in its revisional jurisdiction under S.397 of the Criminal P.C. 1973, constrict the scope of a petition in revision, directed against a judgment of conviction to the limited point of sentence only - is the significant question necessitating this reference to the Division Bench. Equally at issue is the correctness of the view of a number of judgments of this Court holding to the contrary under the provision of the old Code as also of the present one.

2. The facts deserve notice with relative brevity. The petitioners were brought to trial upon a complaint before Sri Ishwari Prasad, Judicial Magistrate and were convicted under S.386 read with S.34 of the Penal Code. And petitioner No. 1 was also convicted under S. 379 IPC and were sentenced to six months rigorous imprisonment. The petitioners then preferred an appeal before the Sessions Judge, which was heard by the 2nd Additional Sessions Judge, Sasaram, who by his detailed judgment accepted all the findings of the trial Court and further (held) that the offences under S.386 read with S.34 IPC were made out against all the petitioners and that the offence under S.379 IPC was also proved against petitioner No. 1 and accordingly affirmed the convictions and sentences imposed on the petitioners. The petitioners then preferred the present criminal revision application which came up before this Court on the 22nd of Aug. 1980, and the following order was recorded:

"This application will be heard on the question of sentence only. Issue notice and call for the records."

However, when this case came up for hearing before my learned brother B. P. Gnyaghey, J., sitting singly, the learned counsel for the petitioners Mrs. Gyan Sudha Mishra contended that despite this specific admission of the revision petition on the question of sentence only, she was, nevertheless, entitled to challenge the conviction on merits as well apart from the issue of sentence only. The learned single Judge was pressed to examine the evidence and reappraise the same for acquitting the petitioner altogether. Reliance was placed on Shaikh Idris V/s. Emperor AIR 1939 Patna 349; Suggi Bind V/s. State AIR 1968 Patna 382: Kamaleshwari Thakur V/s. State AIR 1970 Patna 391; Budhu Oraon V/s. The State of Bihar 1977 BBCJ 425 and S. P. Mallik V/s. State of Orissa (1982 BLJ R 11) for contending that the scope of the revision petition could not be limited even by the High Court itself to the question of sentence and the petitioners were entitled to challenge the evidence and the merits of the case itself for securing an acquittal. Apparently disagreeing with the said view and doubting the correctness of the single Bench judgments in support thereof, the case was referred for an authoritative decision to the Division Bench.

3. Now the solitary, though significant, issue herein has necessarily to be viewed against the broader vista of the scope of the revisional jurisdiction of the High Court under Chap. XXX of the Criminal P. C., 1973 (hereinafter referred to as "the Code"). What perhaps calls for pointed notice at the outset is the fact that under S. 397 of the Code the revisional jurisdiction is a discretionary one in sharp contradistinction to the appellate jurisdiction under Chap. XXIX which confers a substantive right of appeal in specific cases. The language used in S. 397 is that the Court concerned that is, either the High Court or the Sessions Judge "may call for and examine the record of any proceeding". It is not couched in terms mandatory to say that the Court shall call for and examine the record. It is a power which may be exercised suo motu or apparently on facts brought to the notice of the revisional High Court at the instance of a party. The scope of the examination is directed to the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceedings before the inferior Court. The distinction betwixt the appel