Back
1993 Supreme(Guj) 52
Gujarat High Court
Judgename :A.N.Divecha
GAMBHIRSINHJI BHAVSINHJI PADHERIYA - Appellant
Versus
STATE - Respondent
MISC.CRI.APPLN.81 of 1993
Decided On : 02/11/1993
Headnote:Criminal Procedure Code, 1973-Secs. 399, 400 & 401-Sessions Judges powers of revision-Scope of-Powers are similar to those of High Court under Sec. 401 and exercisable on Courts over which court exercises appellate powers-Sessions Judge has no appellate powers over the orders of Additional Sessions Judge and therefore can not Justify his action by withdrawing a part heard Sessions case from his court in exercise of his revisional powers- Impugned order of Sessions Judge quashed.
It is true that the Sessions Court is also vested with revisional powers and the scope of such revisional powers is similar to those exercisable by the High Court under Sec. 401 thereof. It is pertinent to note that revisional powers are exercisable for correction of errors, if any, made by subordinate courts and not by courts of equal rank. It apperas that the learned Sessions Judge overlooked the provisions of Sec. 400 of the Cr. P.C. It empowers an Additional Sessions Judge to exercise the same powers as the Sessions Judge with respect to a case assigned to him for hearing and disposal. It would mean that an Additional Sessions Judge is also capable of exercising revisional powers with respect to orders passed by the subordinate courts if such revisional preceedings are assigned to him. An Additional Sessions Judge for the purpose of revisional powers is on par with the Sessions Judge as transpiring from the scheme of the Cr. P.C. reflected more particularly in Sec. 400 thereof.
Sec. 401 (1) of the Cr. P.C. confers upon the revisional court the powers conferred on a court of appeal by certain provisions named therein. It cannot be gainsaid that appellate powers are exercisable over subordinate courts and not courts of equal rank. In this connection a reference deserves to be made to Sec. 374 of the Cr.P.C. The appeal against the order of conviction passed by an Additional Sessions Judge lies to the High Court. There is no provision in the Cr.P.C. providing for an appeal against any order of an Additional Sessions Judge to a Sessions Judge. In that view of the matter, the learned Sessions Judge could not exercise any appellate powers over an Additional Sessions Judge. I think the resort to Sec. 399 read with sec. 401 of Cr. P.C. by the learned Sessions Judge for the purpose of withdrawing the sessions case in question from the file of the Additional Sessions Judge, with respect, is thoroughly misconceived. In my opinion, the learned Sessions Judge has overlooked the basic and elementary principle of law by taking recourse to Sec. 399 read with Sec. 401 of the Cr. P.C. for the purpose of justifying his action of withdrawal of the sessions case in question from the file of the learned Additional Sessions Judge. In the result, this petition is accepted. The action of the learned Sessions Judge of recalling Sessions Case No. 110 of 1991 from the file of the learned Additional Sessions Judge, named, Shri V.C. mandalia, is hereby quashed and set aside.
( 1 ) CAN the Sessions Judge withdraw a part-heard case from the Additional Sessions Judge in exercise of his purported powers under Sec. 399 of the Code of Criminal Procedure, 1973 (the Cr. P. C. for brief) ? In the alternative, can the Sessions Judge withdraw a partheard case from the Additional Sessions Judge in exercise of his powers under Sec. 409 thereof ? These are the main questions that have cropped up in this petition under Sec. 482 of the Cr. P. C.
( 2 ) THE petitioner has been facing trial for the offences inter alia punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act for brief ). It has come to be registered as Sessions Case No. 110 of 1991 in the Sessions Court at Rajkot. It appears that the learned predecessor of the learned present Sessions Judge, by his order passed on 3/12/1992 assigned that sessions trial to the learned Additional Sessions Judge, named, Shri V. C. Mandalia, for trial and disposal. It is not in dispute that the learned Additional sessions Judge framed the charge against the present petitioner and proceeded with the trial on 10/12/1992. It appears that in the course of trial two witnesses came to be examined and certain documents produced on the record of the case on behalf of the prosecution as well as the defence were admitted to record. It appears that on 10/12/1992, the learned Public prosecutor submitted one application to drop certain prosecution witnesses and got summons issued to certain witnesses and the next date for recording the evidence of the witnesses was fixed on 6/01/1993. It appears that in the meantime the learned predecessor of the learned present Sessions Judge was transferred and the present learned Sessions Judge assumed his charge on 12/12/1992. By his order passed on 14/12/1992, the learned Sessions Judge withdrew Sessions Case No. 110 of 1991 from the learned Additional Sessions Judge. It appears that the trial proceeded with the learned Sessions Judge and some four prosecution witnesses came to be examined in the course of trial. At that stage the present petitioner has approached this Court and has invoked the jurisdiction of this Court under sec. 482 of the Cr. P. C. for the purpose of challenging the action of the learned sessions Judge in withdrawing Sessions Case No. 110 of 1991 pending on the file of the learned Additional Sessions Judge, named, Shri V. C. Mandalia of Rajkot.
( 3 ) BY the order passed on 13/01/1993, the report of the learned sessions Judge was called for. After perusal of that report, this Court issued rule in this petition and made it returnable today.
( 4 ) IN his report, the learned Sessions Judge has come forward with a case that he has exercised his powers under Sec. 399 of the Cr. P. C. for the purpose. According to him, in all other districts, the powers to try the offence punishable under the Act are vested in the Sessions Judge and in no other judge. He has, however, noticed that the District of Rajkot is an exception. He has, however, stated in his report that under the belief that the Sessions judge alone has the powers to try the offences under the Act, he has exercised his powers under Sec. 399 of the Cr. P. C.
( 5 ) IT does not become clear from aforesaid report of the learned Sessions judge whether he has tried to exercise his revisional powers under Sec. 399 of the Cr. P. C. with respect to the assignment of the matter to the concerned learned Additional Sessions Judge by his predecessor-in-office as the Sessions judge of Rajkot, named, Shri A. M. Kapadia, or with respect to the proceedings conducted by the concerned learned Additional Sessions Judge. For the time being I assume that the learned Sessions Judge of Rajkot in his aforesaid report has indicated that he has exercised his revisional powers with respect to the proceedings before the concerned learned Additional Sessions Judge.
( 6 ) I think the learned Sessions Judge has not correctly read the provisi
