Revision Petition & Review Petition

INTRODUCTION

Human Judgement is not infallible. Errors cannot be ruled out despite taking all provisions for ensuring fair trial and just decision. The Code of Civil Procedure and The Code of Criminal Procedure therefore provide for “Appeals”, “Revision”, “Reference”, “Review” ( Specifically provided in Civil cases). The very fact that the decision of lower court is duly scrutinized by a superior court gives in “Revision” or “Review” gives certain satisfaction to the party “aggrieved” by that decision.

REVISION PETITION IN CODE OF CRIMINAL PROCEDURE

A Person aggrieved by the decision of a criminal court can go in appeal to the higher court and obtain redress. However, this right of appeal is not available to each and every case and is confined to such cases that are specifically provided by the law. Even in such specified cases, the Code ordinarily allows only one appeal and the review of that decision of the appellate court is not normally possible by way of further appeal to yet another higher court. In order to avoid the miscarriage of justice in cases where no right of appeal is available, the Code had devised “Revision” provided from section 397 to 405. The object of revisional jurisdiction is to confer upon superior courts a kind of paternal or supervisory jurisdiction[1]. The revisional court can act either on its own motion or on the motion of even a stranger who may be instrumental in bringing to the knowledge of the revisional court a matter which otherwise the revisional court may not have known.

Section 397 – Power to call for and examine the record of any proceeding before Subordinate Court

Under Section 397 the High Court or the Session Court is empowered to call and examine for any record of the proceedings before any inferior court and satisfy itself as to correctness, legality or propriety of any order passed by the inferior court. The explanation appended to section 397(1) merely classifies that all Magistrates whether executive or judicial, shall be deemed to be inferior to the Session Judge for the purpose of Sections 397 and 398. Sub section of 397(2) bans the exercise f revisional power in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. This provision has been introduced with a view to speeding up the disposal of criminal cases. The term “interlocutory order” merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Sub Section of 397(3) lays down that if a revision application has been made by any person to the higher court or to session judge under section 397(1) no further application by the same person shall be entertained by the other of them.

Section 398 – Power to Order Inquiry

The power of session judge under section 398 is to examine any record under section 397 or otherwise and such power is exercisable to proceedings pending or concluded at pre-charge state. The power under Section 398 is not co-extensive with Section 397 but extends far wider as the record can “otherwise” be examined by the session judge without recourse to Section 397. The orders of dismissal under Section 203 or sub section (4) of Section 204 of the code and of discharge under the relevant provisions of the code are concerned; the bar provided under Section 397(2) against revision in relation to interlocutory orders has been removed. The proviso is imperative and requires that no order for further inquiry should be passed without giving an opportunity to the accused person to show cause why further inquiry should not be directed. It applies only where the accused has been discharged and does not apply to dismissal of complaint. The term further enquiry does not mean “fresh preliminary enquiry” but only the reappraisal of the very evidence which was examined prior to the passing of the order, which was set aside in the revision, or any other evidence cited in the complaint but not examined earlier, but examined after the remand[2].

Section 399 – Session Judge’s Power of Revision

Under Section 399(1) the Session Judge in case of any proceeding the record of which has been called for by himself under Section 397(1) may exercise all or any of the powers which are exercisable by the High Court under Section 401(1). Section 401(1) enables the High Court to exercise in its revisional jurisdiction any of the powers conferred on a court of appeal by Sections 386, 389, 391, etc. the limitations on the exercise of revisional powers of the High Court as contained in Sub Section (2),(3) and (4) of Section 401 and the enabling provision for treating the application for revision as a petition of appeal under circumstances as contained in Section 401(5), have all been made applicable by section 399(2) to every proceeding by way of revision commenced before a session judge under Section 399(1).  Section 399 (3) provides that where any application for revision is made by or on behalf of any person before the session judge, the decision of session judge thereon in relation to such a person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court.

Section 400 – Power of Revision of Additional Session Judge

An additional Session Judge shall have and may exercise all the powers of a session judge under this chapter in respect of any case which may be transferred to him by or under general or special order of the Session Judge.

Section 401 – High Court’s powers of Revision

  • Powers of High Court in Revision – the revisional powers of High Court are very wide. The revisional powers of high court are intended to be used by the High Court to decide all questions as to correctness, legality or propriety of any finding, sentence or order, recorded or passed by any inferior court and even as regularity of any proceedings to such inferior court. Section 401(1) confers on the High Court all the powers of appellate court as mentioned in Section 386, 389, 390 and 391; it also empowers the High Court to direct tender of pardon to the accused person as contemplated by Section 307. Any order passed in any proceedings under the code, except when it is specifically barred such as an interlocutory order, is revisable by the High Court under Section 401. The revisional powers are discretionary and there is no vested right of revision as in the case of appeal.
  • Who can invoke the Revisional Jurisdiction –  the High Court can exercise its revisional powers suo moto (on its own initiative) or on the petition of the aggrieved party or even on the application of any other person.

However there are two limitations-

– Section 399(3) provides that in case where any application for revision is made by or on behalf of the session Judge, no further proceeding by way or revision at the instance of such person shall be entertained by the High Court.

– In case where under this code an appeal lies but no appeal is brought then according to sub section (4) of Section 401, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

  • How the powers are exercised –    the exercise of jurisdiction under Section 401 is discretionary and the powers are to be used only in exceptional circumstances where there is glaring defect in the procedure or there is a manifest error o the point of law, and consequently there has been a flagrant miscarriage of justice.  It has been clearly provided under Section 401(3) that the High Court exercising its revisional jurisdiction under section 401 shall have no authority to convert a finding of acquittal into that of conviction.
  • Audi Altram Partem (No man should be condemned unheard ) –   Section 401(2) provides that no order shall be passed to the prejudice of accused or other person  under Section 401 unless the accused or other person is being heard personally or by pleader in his own defence. However Section 403 to certain extent is an exception to Section 401(2), which provides that it is not necessary that a party must be heard personally or through his pleader.
  • Treating application for revision as a petition for appeal –  if an application for revision has been made to the High Court by any person in a case where an appeal lies, and the High Court is satisfied that the revision petition was made under the erroneous belief that no appeal lies thereto, the court may treat the revision application as a petition of appeal and deal with it accordingly (Section 401(5)).
  • No abatement of revision by death of the petitioner – whether it was an accused person or it was a complainant who has moved to the high court in its revisional jurisdiction and the revision petition has been admitted, the matter has to be heard and determined in accordance with the law whether or not the petitioner is alive or dead or whether he is represented in a court by legal practitioner.

Section 402 – Power of High Court to withdraw or transfer Revision cases

In case of joint trial, if one of the several accused person moves the Court and any other accused person moves the Sessions court on the same matter of revision, there would be a conflict in the jurisdiction. In order to avoid such a situation it has been provided that the High Court in such circumstances should decide as which f the two courts should deal with the matter, having regard to the convenience of the parties and the importance of the questions involved.

Section 405 deals with the High Court’s order to be certified to the lower court.

REVISION PETITION UNDER CODE OF CIVIL PROCEDURE

Section 115 of the Code of Civil procedure invests all High Courts with revisional jurisdictions. A person aggrieved by an order passed by a court to subordinate to the High Court may file a revision against such order.

The following conditions must be satisfied before revisional jurisdiction can be exercised by the High Court –

– A case must have been decided

– The court which has decided the case must be a court subordinate to the High Court;

– The order should not be an appealable one; and

– The subordinate court must have exercised jurisdiction not vested in it by law, or failed to exercise jurisdiction vested in it; or acted in the exercise of jurisdiction illegally or with material irregularity.

(i) Case decided –

The expression case decided was not defined in the Code of Civil Procedure. In Baldevdas Shivlal v. Filmistan Distributors (India) (P.) Ltd.[3] held that case may have been decided if the court adjudicates for the purpose of the suit right or obligation of the parties in controversy. Every order cannot be in a suit cannot be regarded as a case decided within the meaning of Section 115 of the Code.

(ii) Subordinate Court

The High Court cannot exercise revisional jurisdiction unless the case is decided by a court and such court is subordinate to the Higher Court. The court means a court of civil judicature and does not include a person acting in an administrative capacity.

(iii) No Appeal rises

The Revision can be invoked in respect of cases where no appeal (includes both first and second appeal) lies to the High court. Where an appeal lies to the High Court directly or indirectly, revision under Section 115 does not lie.

(iv) Jurisdictional error  

(a) Nature and Scope

Section 115 is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists, an assumption of jurisdiction where none exists, and lastly, acting with illegality or material irregularity.

(b) Error of fact and error of law

The revisional powers of High Court are limited to the question of jurisdiction only and the decision of decision of subordinate court on all question of law and fact not touching its jurisdiction is final.

(c) Error of law and error of jurisdiction

There is distinction between the cases in which on a wrong decision the court has assumed jurisdiction which is not vested in it and those in which in exercise of its jurisdiction the court has arrived at conclusion erroneous in law or fact. In the former case revisional power is permissible, while in the latter class of cases it is not.

(d) Exercise of Jurisdiction not vested by law (Clause (a))

Where a subordinate court exercises jurisdiction not vested in it by law, a revision lies. The High Court will interfere with the orders passed by the subordinate court.

(e) Failure to exercise jurisdiction: Clause (b)

A revision also lies where a subordinate court has failed to exercise jurisdiction vested in it by law. A court having jurisdiction to decide a matter, thinks erroneously under a misapprehension of law or fact that it has no jurisdiction and declines to exercise it; the High Court can interfere in revision.

(f) Exercise of jurisdiction illegally or with material irregularity: Clause (c)

A revision also lies where the subordinate court has acted in the exercise of its jurisdiction illegally or with material irregularity. In Keshardeo v. Radha Kissen[4] the Apex Court observed that the errors contemplated relate to the material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.

REVIEW UNDER CODE OF CIVIL PROCEDURE

Section 114 of the Code gives a substantive right of review in certain circumstances. And Order 47 provides the procedure for them. The normal principle of law is that once a judgement is pronounced or order is made, the court becomes functus officio (judgement or order is final and it cannot be altered or changed. A review of judgement is serious step and reluctant resort which is called only for glaring omission, patent mistake or grave error has crept in earlier by judicial fallibility.

Review lies in the following circumstances –

(a) Cases in which no appeal rises – A decree or order from which no appeal lies is open to review.

(b) Cases in which appeal lies but not preferred-   A review petition is also maintainable in cases where appeal is provided but no such appeal is preferred by the aggrieved party.

(c) Decisions on reference from Court of Small Causes –  the Code of Civil Procedure, 1908 allows a review of judgement on a reference from a court of small causes.

An application for review of a judgement may be made on the following grounds-

  • Discovery of new and important matter or evidence
  • Mistake or error apparent on the face of record
  • Any other sufficient reason.

After the amendment in Section 141 of the Code of Civil procedure and the explanation to that section clearly provides that the provisions of Order 47 of the ode do not apply to Writ petitions filed under High Court under Article 226 of the Constitution.

Article 137 of the Constitution confers power on the Supreme Court to review its judgement subject to the provisions of any law made by the parliament or the rules under Article 145. The Powers of the Supreme Court cannot be curtailed by the Code of Civil Procedure.

CONCLUSION

The normal procedure is that the judgement pronounced by the court is final and departure from that principle is only justified when the circumstances of substantial and compelling circumstances make it necessary to do so. Whatever the nature of proceeding, it is beyond the dispute that the review and revision cannot be equated with the original hearing of the case and the finality of the judgement delivered by the court will not be reconsidered except where a glaring omission or patent mistake  or like grave error has crept in by judicial fallibility.

References

R.V. Kelkar, “Criminal Procedure” (EBC Publishing (P) Ltd., Lucknow 6th edn) 649


[1] Purshottam Vijay v. State, 1982 Cri LJ 243

[2] Gurudial Singh v. Kartal Singh 1980 Cri Lj 955

[3] (1969) 2 SCC 201

[4] AIR 1953 SC 23

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