S. 397 CrPC | Litigants Must First Approach Sessions Court For Revision, HC Can Only Be Moved Directly In 'Rare' Cases: Jharkhand High Court

The Jharkhand High Court has clarified that while Section 397 of CrPC allows both the Sessions Court and the High Court to exercise revisional jurisdiction, litigants should ideally approach the Sessions Court, which is the first forum at the first instance.The court said that only in rare and special circumstances should the High Court be approached first in revision jurisdiction. For reference, Section 397 of CrPC [corresponding to Section 438, BNSS], grants revisional jurisdiction upon the High Court as well as the Sessions Court, to call for and examine orders passed by a subordinate Court. Further, sub-section (3) of Section 397 enacts that if an application under section 397 has been made by any person either to the High Court or Sessions Judge, no further application by the same person shall be entertained by the other of them.Refusing to entertain a revision petition filed directly before the High Court under Section 397 against an order of Judicial Magistrate, Justice Sanjay Kumar Dwivedi explained,“…the exercise of revisional powers is not a matter of course, but it is a matter of rare and sparing use and, as such, when two fora are available to the petitioners for getting redressal of the alleged wrong, then it will certainly be more appropriate for them to first approach the first forum. It is certainly within the discretion of the higher forum, i.e., this Court to consider whether it should entertain or not of such a revision petition which can lie before the Sessions Judge. In view of that, this Court is of the view that this Court should not entertain this revision petition which can be entertained and decided by the learned Sessions Judge.”“When an order is passed by the learned Sessions Judge, the only remedy left with the aggrieved party is to approach the High Court under the said Code to question correctness, legality or propriety, but when the same is passed by a Magistrate, though power lies to both the Sessions and the High Court, but as a matter of prudence and propriety, it will be appropriate to first approach the first forum and except in rare and special circumstances to the High Court. Such special circumstances may be where the Sessions Judge has directly or indirectly participated in the enquiry or investigation or trial or through his any action or order interest of justice demands that High Court alone should interfere in the order of the learned Magistrate”, the Single Judge added.BackgroundThe petitioners had approached the High Court challenging an order passed by the Judicial Magistrate, Dhanbad, which had rejected their plea for discharge under Section 245 CrPC in a complaint case. Justifying their stance of approaching the High Court directly and bypassing jurisdiction of the Sessions Court, the petitioners argued that Section 397 r/w Section 399 (Sessions Judge's power of revision) and 401 (High Court's power of revision), of CrPC empowers the Sessions Court and High Court to exercise revisional jurisdiction and the discretion lies upon the litigant as to which forum to approach. It was further argued that once petitioners prefer a revision petition before the Sessions Court, the petitioners cannot file second revision in High Court by virtue of the bar contained in Section 397(3).While the Court acknowledged that in light of Section 397, there lies no “prohibition for approaching the High Court directly”, it held that it is only under special circumstances that the litigant should approach the High Court first. The Court observed,“… it is clear that there is of-course no bar for filing revision directly to the High Court under Section 397 of the Code read with Section 401 of the Code, corresponding to the Section 438 read with Section 442 of the BNSS against the order of the learned Magistrate, but when concurrent jurisdiction is given specially under such circumstances when both are superior Courts one to the Magistrate and another to the Sessions, then the propriety demands that elder superior Court in Hierarchy must be first approached. This is the customary common law as the first elders are always respected.”Highlighting the significance of approaching the Sessions Court first, the Single Judge noted,“This will also be in the benefit of the litigants by doing so as the party getting order from learned Magistrate will get double remedy, firstly he will approach the Court of Sessions in revision, which is a highest Court of criminal trial and after examining the legality, propriety and correctness of the order of sentence, the Sessions Court comes to the conclusion that the order requires no interference under Section 397 of the Code, then the party has still second remedy to approach the High Court under Section 482 Cr.P.C. or Section 528 of BNSS if both the learned Courts have passed such orders which either cannot give effect to the orders in this Code or results in abuse of the process of law or otherwise does not secure the ends of justice.”Thus, in the...

S. 397 CrPC | Litigants Must First Approach Sessions Court For Revision, HC Can Only Be Moved Directly In 'Rare' Cases: Jharkhand High Court

Saahas Arora

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