JUDGMENT
M.R. Verma, J.
1. Since both these petitions raise similar question of law and arise out of the cases having identical facts, therefore, these are being disposed of by this common judgment.
2. Briefly stated the facts leading to the presentation of these petitions are that the petitioner/complainant (hereafter referred to as ‘the petitioner’) presented two complaints against the respondent/accused (hereafter referred to as ‘the respondent’) under Section 138 of the Negotiable Instruments Act, 1881 (hereafter referred to as ‘the Act’) read with Section 420 of the Indian Penal Code in the Court of the learned Sub-Divisional Judicial Magistrate, Kandaghat. These complaints were registered as complaint Nos. 19/4 and 20/4 of 1997/98. In both the cases the respondent was tried for accusations under Section 138 of the Act. The learned trial Magistrate on the basis of the material brought on record convicted respondent in both the cases under Section 138 of the Act and sentenced him to undergo simple imprisonment for three months and pay fine of Rs. 5000/- in each case. The petitioner felt aggrieved by the quantum of sentences awarded to the respondent in each case, therefore, preferred revision petition Nos. 4-S/10 and 5-S/10 of 1999 in the Court of the learned Sessions Judge, Solan for enhancement of the sentence and payment of Rs. 40,000/- to him as compensation in each case. The learned Sessions Judge vide orders impugned in these petitions held the revision petitions incompetent on the premises that he was not competent to enhance the sentence imposed on the respondent by the learned trial Magistrate. Hence, these petitions.
3. I have heard the learned counsel for the petitioner and have given an opportunity of being heard to the learned Advocate appearing vice-counsel for the respondent and have also gone through the records.
4. It may be pointed out at the very outset that the petitioner admittedly had preferred a revision petition under Section 397 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) in the Court of the learned Sessions Judge, therefore, a further petition under Sections 397 and 401 of the Code is barred and is not maintainable in view of the provisions of Sub-section (3) of Section 397 and Sub-section (3) of Section 399 of the Code. However, the present petition has been filed not only under Sections 397 and 401 but also under Section 482 of the Code. The maintainability of this petition under Section 482 of the Code challenging the legality of the orders passed by the learned Sessions Judge is beyond any doubt, therefore, this petition is maintainable and entertainable under Section 482 of the Code.
5. The vital question, which this petition raises for consideration, is whether a Sessions Judge is not competent to enhance sentence in exercise of his revisional jurisdiction under Section 397 of the Code.
6. Sub-section (1) of Section 397 of the Code which vests the High Court and the Sessions Judge with the powers of revision reads as follows :
“397. Calling for records to exercise of powers of revision.– (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.– All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge or the purposes of this sub-section and of Section 398.”
7. Section 399 of the Code, which provides for the ambit and scope of the revisional powers of a Sessions Judge, reads as follows :
“399. Sessions Judge’s powers of revision.– (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 40.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and reference in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such 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 or any other Court.”
8. Section 401, which provides the ambit and scope of the revisional powers of a High Court and which powers are exercisable by Sessions Judge by virtue of the provisions of Section 399 of the Code, reads as follows :
“401. High Court’s powers of revision.–(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 489, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”
9. It is evident on a bare reading of the aforesaid provisions that a Sessions Judge can exercise all or any of the powers which can be exercised by the High Court under Section 401 (1) of the Code. Section 401(1) empowers the High Court to exercise the powers conferred on a Court of appeal by Sections 386, 389 and 391 while exercising its revisional jurisdiction. It is clear from a combined reading of Sections 397, 399 and 401 (supra) that the High Court and the Sessions Judge are invested with concurrent and co-extensive revisional jurisdiction over inferior Criminal Courts within their respective jurisdiction. That is why in a case where the revisional jurisdiction has been exercised either by the High Court or the Sessions Judge, the jurisdiction of the other to entertain a revision petition on the same subject-matter is expressly ousted by Sub-section (3) of Section 397 and Sub-section (3) of Section 399 of the Code.
10. By virtue of the provisions of Clause (c) of Section 386 of the Code, a Court of appeal in an appeal for enhancement of sentence may with or without altering the findings alter the nature and extent of the sentence so as to enhance or reduce the same. On a bare reading of the aforesaid provisions, vesting a Sessions Judge with co-extensive and concurrent revisional powers of the High Court nowhere provides expressly or by necessary implications that a revision petition seeking enhancement of sentence is entertainable only by a High Court and not by a Sessions Judge. It is, thus, clear that the High Court and the Sessions Judge have concurrent revisional jurisdiction and a person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court.
11. In Janardan Sarvottam Rao v. The State of Maharashtra (1976 (2) FAC 108) while dealing with the question whether the Sessions Judge can enhance the sentence in exercise of his revisional jurisdiction, Bombay High Court held as under :
“32. The above summary of the provisions of Section 386 shows the various powers of the appellate Court and also its limitations. Going back to the provisions of Section 401 which we have quoted above, the legislature authorises the High Court sitting as a Court of revision to exercise any of the powers conferred on a Court of appeal by Section 386. The language of Section 401 is clear and unequivocal. It merely refers to Section 386 and refers to all or any of the powers which are exercisable under that section. The above reference to the provisions of Section 386 made by us does not show that the various powers are exercisable in different types of appeals. However, whatever the nature of the appeal be all the powers that are described in Section 386 are the powers of an appellate Court. All such powers or any of them are available to the High Court for being exercised while dealing with the revisional application under Section 401(1) which merely refers to the powers conferred on a Court of Appeal by Section 386. If these are the powers of the High Court under Section 386 which it can exercise as a Court of revision and Sub-section (1) of Section 399 directs that the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401, there seems to be hardly any doubt that the powers of the Sessions Judge are made co-extensive with the powers of the High Court.
33. Mr. Rane, however, argued that this would not be the construction to be put on the provisions of Section 399(1). With reference to Section 386 Mr. Rane argued that Clause (c) deals with the enhancement of the sentence in an appeal for enhancement of sentence. An appeal for enhancement of the sentence on the ground of its inadequacy is permitted to be filed by Sub-section (1) of Section 377. There was no such provision in the old Code. In respect of such an appeal the High Court is authorised to pass various types of orders including the one for enhancement of sentence. The appeal for enhancement under Sub-section (1) of Section 377 necessarily lies to the High Court and never to the Sessions Judge. Mr. Rane, therefore, poses a question as to how a Sessions Judge can now enhance the sentence sitting as a Court of revision under Sub-section (1) of Section 399, though he had no power as an appellate Court for enhancing the sentence. The power to enhance the sentence as appellate Court in respect of an appeal relating to sentence is conferred by the Legislature only on the High Court. We do not see any anomaly, because the Legislature wants the High Court to exercise all the appellate powers conferred on it under Section 386 even as a Court of revision. A mere reference to Section 386 has been made in Sub-section (1) of Section 401. Since further the Legislature wants the Sessions Judge also to use all powers of the High Court including the powers of enhancement of sentence, Sub-section (1) of Section 399 merely refers to the exercise of all the powers by the High Court under Sub-section (1) of Section 401. The language of Section 401 and Section 399(1) is worth noting. It merely refers to power of an appellate Court without mentioning the type and remedy under which that power is to be exercised. All the powers irrespective of the remedy are, therefore, powers of an appellate Court and all these powers are made exercisable by the High Court as well as the Sessions Judge. We are thus satisfied that the Sessions Judge under the new Code has all the powers of the High Court which are enumerated by the Legislature in Section 386.
34. Enhancing the sentence is one of the powers included in that section and the Sessions Judge can now exercise that power in view of the clear provisions of Sub-section (1) of Section 399 read with Sub-section (1) of Section 401….. ….”
12. In Mohammad Sabir v. The State of Maharashtra (1978 Cri LJ 825), the same High Court while dealing with similar question held as follows :
“3. The learned Sessions Judge to whom the revision petition was presented was exercising his powers under Section 399 of the Cr.P.C., 1973. He could, therefore, exercise the powers detailed in Section 401 of the Code. That section in turn refers to the exercising the powers conferred under Sections 386, 389, 390 and 391. Section 386 is the relevant section which lays down that the Court if it considers that there is no sufficient ground for interfering, may dismiss the appeal. Alternatively as provided for in Clause (b), Sub-clauses (i), (ii) and (iii) it was open to the Sessions Judge to reverse the finding and sentence and to acquit or discharge the accused or to order retrial or to maintain the sentence or with or without altering the finding alter the nature and extent of the sentence. Sub-clause (iii) of Clause (b) however provides that such alteration ought not to amount to enhancement of the sentence. Clause (d) of Section 386 also empowers the Court to alter or reverse the order and Clause (e) allows making amendment or any consequential or incidental order that may be just or proper. However, there is a proviso to Clause (e) that sentence shall not be enhanced unless the accused had an opportunity of showing cause against such enhancement.”
13. In Prabhudas Chhaganlal v. Babubhai Virabhai Miseria (1977 Cri LJ 1666), while dealing with a similar question, a Division Bench of the Gujarat High Court held as under :
“6. The First submission was that the new Code has created a right of appeal against sentence and conferred it only on the State Government and the Central Government (in certain specified cases). It was pointed out that except in the cases mentioned in Section 377(2), the State Government’s right of appeal extends to “any case of conviction” which would take in conviction in a complaint instituted by a private party also. It was also urged that only the State is interested in the question of sentence and a private party can have no interest in it except perhaps to satisfy its vengeance. Therefore, the only remedy against sentence was by way of appeal by the State Government and any other remedy must be deemed to have been excluded. This argument, which looks attractive at first sight, when taken to its logical end would mean that sentence cannot be enhanced by invoking the revisional power even of the High Court. This result is now demonstrated to be untenable, in view of the decision of the Supreme Court in Nadirkhan v. State (Delhi Administration), 1975 Cri LR (SC) 434 : (1975 Cri LJ 1721 : AIR 1976 SC 2205). In that case the High Court’s power to enhance sentence under Section 401 of the New Code was questioned in view of the provision for appeal under Section 377 of the Code. The Supreme Court negatived this contention holding that the said power was preserved expressly by Section 401 and that the provisions of Section 401 read with Section 386 (c)(iii) were supplemental to those under Section 377. This is because while exercising power of revision the High Court by virtue of Section 401 can exercise any of the powers inter alia under Section 386 exercisable in appeal.
7. Now, it is pertinent to note at this stage that the Legislature while providing for exercise of powers of revision by the Sessions Judge by Section 399 (1) conferred upon the Sessions Judge “all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.” These are words of widest amplitude. The Legislature did not exclude Section 386{c) relating to enhancement of sentence while conferring these powers. Therefore, if by virtue suo motu sentence in revision, the Sessions Judge can as well do suo motu in exercise of his powers of revision. And Sub-section (2) of Section 399 itself shows that for the purposes of Sub-sections (2), (3), (4) and (5) of Section 401, the Sessions Judge was practically equated with the High Court.
8. It was as a necessary sequel to the wide amplitude of powers conferred as above on the Sessions Judge that by Sub-section (3) of Section 399 of the decision of the Sessions Judge in revision was made final in relation to the person who had invoked the revisional jurisdiction of the Sessions Judge, and no further proceeding by way of revision at the instance of such a person could even be entertained by the High Court. Nay, the Legislature went a step ahead and prohibited entertainment of further application in revision by the High Court at the instance of a person who had made an application to the Sessions Judge and vice versa. Therefore, to this limited extent the High Court and the Sessions Judge were made Courts of concurrent jurisdiction.
14. Thus, there is no escape from the conclusion that the Sessions Judge has power to enhance sentence in revision subject to the limitation set forth in Sub-section (4) of Section 401 viz. in a case where an appeal lies and no appeal is brought, proceeding by way of revision cannot be entertained at the instance of the party who could have appealed. In a way this sub-section would also provide an answer to the argument that in view of conferment of right of appeal against the sentence, interference with sentence in revision is excluded. The Legislature could have wholly excluded exercise of power of revision where an appeal lies. Instead, there was partial exclusion of revisional proceeding at the instance of the party who could have appealed.”
14. The only reported case in which a contrary view has been taken and I could lay hands on is Chanderpal v. State (1979 Cri LJ 1437) wherein Allahabad High Court after referring to the provisions of Sections 386, 401, 377 and 378(1) and laying emphasis on the latter 2 Sections held as under :
“5. A close scrutiny of the provisions of Section 386, Criminal P. C. indicate that it refers to the powers of the appellate Court in general, without any particular reference to the Court of Session. The power conferred under Section 377, Criminal P. C. does not find place in Section 386, Criminal P. C. Section 377, Criminal P. C. runs as follows :
‘1. Save as otherwise provided in Sub-section (2) the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.’
In this connection it may also be mentioned that Section 378 (1), Criminal P. C. refers to appeals to High Court against orders of acquittal. The said section runs as follows :
“(1) Save as otherwise provided in Sub-section (2) and subject to the provisions of Sub-sections (3) and (5), the State Government may, In any case, direct the public prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.”
Reading both these sections together it is clear that appeals on the question of sentence on the ground of inadequacy and against the acquittal passed by the original or appellate Court lie only to the High Court. Appeals against convictions on the other hand lie to the Sessions Court, High Court and the Supreme Court depending upon the nature of each case. It is thus clear that when Section 386, Criminal P. C. refers to the powers of the appellate Court in general; it speaks of the powers of the High Court as well as of the Court of Session without specifically mentioning those Courts in that section. Nevertheless, if the powers of the appellate Court are to be exercised with respect to matters which arise out of enhancement of sentence or acquittal then by virtue of Sections 377 and 378 Criminal P. C. it would be the High Court alone which would be empowered to exercise this jurisdiction. The Supreme Court has even gone to the extent of holding in Nadir Khan v. State (Delhi Administration) 1976 Cri LJ 1721 : (AIR 1976 SC 2205) that :–
“The fact that the new Code of Criminal Procedure has expressly given a right to the State under Section 377, Criminal P. C. to appeal against inadequacy of sentence which was not there under the old Code, does not exclude the revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court……….”
It is thus clear that the Court of Session does not possess the power to enhance the sentence while exercising appellate jurisdiction. Such a power to enhance the sentence can only be exercised by the High Court.”
15. Evidently the High Court of Allahabad in coming to the conclusion that the Sessions Judge in exercise of his revisional jurisdiction has no power to enhance the sentence has relied on Nadir Khan v. State (1976 Cri LJ 1721 : AIR 1976 SC 2205). A perusal of this case reveals that the question as to the extent and ambit of the revisional powers of the Sessions Judge was neither under consideration nor was at all considered in the said case. Therefore, it cannot be said on the basis of the said case that the powers of the Sessions Judge are not concurrent and co-extensive with the powers of the High Court even to entertain a revision petition for enhancement of the sentence. Therefore, I find myself unable to agree with the view taken by the Allahabad High Court. On the contrary the view taken by the High Courts of Bombay and Gujarat appears to be correct.
16. In view of the above discussion, the impugned orders having been passed by the learned Sessions Judge under the misconception of law that he had no power to enhance the sentence in exercise of his revisional jurisdiction are contrary to the law.
17. The learned Sessions Judge, while disposing of the revision petitions, did not enter into the question as to whether the sentences awarded to the respondents were inadequate and deserved to be enhanced or not and whether any amount out of the five ought to have been ordered to be paid to the petitioner as compensation under Section 357 of the Code and dismissed the revision petitions on a technical ground, therefore, in the facts and circumstances of the case, the only alternative left is to direct the learned Sessions Judge to hear the parties on merits and dispose of the revision petitions afresh in accordance with law.
18. As a result, both the petitions are allowed and the revision petition Nos. 4-S/ 10 and 5-S/10 of 1999 are remitted to the learned Sessions Judge, Solan for disposal on merits in accordance with law.
19. The parties through their counsel are directed to appear in the Court of the learned Sessions Judge, Solan on August 19, 2002.