Judgment:
ORDER
S.R. Bannurmath, J.
1. This petition is filed by the complainant, challenging the order dated 4-9-1999, passed by the learned Sessions Judge, Bangalore in Crl. R.P. No. 260 of 1999, reversing the order dated 26-7-1999 passed by the learned II Additional Chief Metropolitan Magistrate, Bangalore in CC No. 5295 of 1998 on I.A. II filed by the accused-respondent.
2. The brief facts of the case are as follows:
The petitioner has presented a complaint in PCR No. 1031 of 1998 under Section 200 of the Cr. P.C. against the respondent and others, for punishing them for the offences punishable under Section 500 of the IPC. It is alleged in the complaint that the accused published certain articles in a Kannada Weekly, 'Lankesh Patrike' in three issues, making certain imputations against the petitioner who was the then Director of P.U. Education Department of State of Karnataka. On 25-11-1998, the learned Chief Metropolitan Magistrate took cognizance; recorded the sworn statements and ordered for registration of the case in CC No. 5595 of 1998 and issued process. On receipt of the same, the accused appeared before the Court and was released on bail. Thereafter, the respondent filed an application under Section 259 of the Cr. P.C. requesting the Court to convert the case i.e., 'Summons Case' into 'Warrant Case', which prayer was opposed by the present petitioner-complainant. On considering the rival contentions, by the order dated 26-7-1999, the learned Magistrate rejected the said application. However, in the revision filed by the respondent, the learned Sessions Judge reversed the same and directed the Magistrate to proceed with further trial, following the procedure for Warrant Case. Hence the present revision petition.
3. Sri S.K. Venkata Reddy, learned Counsel appearing for the petitioner vehemently contended that the impugned order of the learned Sessions Judge is contrary to law and procedure prescribed; that the learned Sessions Judge has passed the impugned order mechanically, without taking into consideration the scope and jurisdiction of the Magistrate under Section 259 of the Cr. P.C. The learned Counsel contended that the words, 'In the course of trial of Summons Case', and 'rehear', used under Section 259 of the Cr. P.C. show that the Magistrate cannot permit the conversion at initial stage, but only can consider the same after the trial has commenced. As such, when the case on hand had not reached to the stage, the learned Magistrate was justified in rejecting the prayer. But the learned Sessions Judge committed an error of the law in reversing the same and ordering for conversion and trial, from adopting the procedure of Warrant Case instead of Summons Case. On the other hand, Sri C.H. Hanumantharaya, learned Counsel appearing for the respondent, supporting the findings of the learned Sessions Judge, inter alia contended that the present revision petition itself is not maintainable one, in view of the law laid down by this Court in the case of Vasudeva Rao v Smt. Shailaja and Others. Elaborating the same, he contended that second revision under Section 397 of the Cr. P.C. was not maintainable, since there was already exercise of revisional jurisdiction by the learned Sessions Judge. On merits also, he contended that as in summons cases, accused has no Right of Audience, unlike warrant cases, by introduction of Section 259 in a given case like the one on hand, the Magistrate in the interest of justice could permit or order for conversion of Summons Case into Warrant Case and as such, there is no illegality committed by the Sessions Court and as such, the petition is liable to be rejected.
4. Insofar as the exercise of revisional jurisdiction by this Court, the law is well-settled. It is held by various pronouncements that the exercise of revision jurisdiction by the High Courts are wide enough for examining the correctness, legality or propriety of any orders passed by the subordinate Court and if the High Court finds that the order is not correct or is illegal and improper, exercising the revisional jurisdiction, the Court can interfere with such illegal order so as to lead the case to the correct path. Of course, there are certain restrictions prescribed by both the Apex Court as well as this Court for exercising such discretionary revisional jurisdiction. The judgment relied upon by the learned Counsel for the respondent in this case is the case of Vasudeva Rao, supra, which lays down that,
'A close examination of Section 397 of the Cr. P.C. clearly make out that the legality or the correctness of the order of an inferior Court can be examined once either by the Court of Sessions or by this Court and at any rate there cannot be a second revision against an order made by the District Judge in revision petition wherein the correctness or the legality of the order of the inferior Court is examined and considered. More so, in a situation as in the case on hand, no second revision would lie when all the persons concerned have been notified, heard and the orders made thereon by the District and Sessions Judge'.
5. The learned Counsel for the respondent also in this regard reliedupon the judgment of the Hon'ble Supreme Court in the case of JagirSingh v Ranbir Singh and Another, wherein the Hon'ble SupremeCourt has observed thus,
'The object of Section 397(3) is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option, he is precluded from invoking the revisional jurisdiction of other authority. The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation'.
6. Relying upon these two-decisions, it is contended that as the order of the learned Magistrate, rejecting the application of the respondent was challenged in a revision before the learned Sessions Judge and the learned Sessions Judge after giving opportunity to both the sides has exercised his revisional jurisdiction to set aside the order of the learned Magistrate, it was not open to the present petitioner to challenge the order of the learned Sessions Judge, again invoking the revisional jurisdiction of this Court.
7. I am afraid, the argument of the learned Counsel is misconceived. By reading the provisions of Section 397, no doubt it gives concurrent powers to both the Sessions Judge, as well as the High Court for exercising the revisional jurisdiction and as such, once a person aggrieved by the order of the inferior Court invokes the revisional jurisdiction before the next immediate revisional Court, viz., the Sessions Court, he is barred from invoking the same revisional jurisdiction before the High Court, second time. This is clear from the specific provision under Section 397(3), which reads as follows:
'397(3)..... If an application under section has been made by any person either to the High Court or to the Sessions Court, no further application by the same person, shall be entertained by the other of them'.
8. The decision of the Apex Court relied upon by the respondent in Jagir Singh's case, supra, is also to the same effect. It has been laid down that as the object of Section 397(3) is to prevent multiple exercise of revisional powers, the second revision by the same person is prohibited. However, the learned Single Judge of this Court, while considering the scope and object of the Section 397 in Vasudeva Rao's case, supra, has clarified, stepping further to state that the legality or correctness of the order of an inferior Court can be examined once, either by the Court of Sessions or by this Court and at any rate there cannot be a second revision against the order made by the District Judge in revision petition, wherein the correctness or the legality of the order of inferior Court is examined and considered. The only stress of the learned Counsel forthe respondent on the following observation of this Court in the Vasudeva Rao's case, supra, was,
'More so, in a situation as the case on hand, no second revision would He when all the persons concerned have been notified, heard and the orders made thereon by the District and Sessions Judge'.
9. So far as first observations are concerned, there is absolutely no dispute and this Court has reiterated the principles regarding concurrent and parallel exercise of revisional jurisdiction by both the Courts viz., the Sessions Court and the High Court. However, taking cue from the words that, 'no second revision would lie when all the persons concerned are notified, heard and orders made thereon', it is contended by the learned Counsel for the respondent that even if the other side is aggrieved by the order of the Sessions Judge, second revision petition is not maintainable. I am afraid, this is not a correct proposition as is clear from the wordings in Section 397(3), the bar of second revision is against the same person that is one who invokes the revisional jurisdiction at the first instance before the learned Sessions Judge and thereafter to invoke the same before this Court also. However, in a given case, like one on, hand, in the first instance, the Magistrate has passed the order, which is challenged by the respondent herein and it was the respondent who has filed the revision petition before the learned Sessions Judge. The learned Sessions Judge has reversed the order of the learned Magistrate and aggrieved by the same, it is now the prayer of the complainant who was the respondent before the learned Sessions Judge to invoke revisional jurisdiction before this Court. As such, no doubt numerically though there are two revision petitions, one before the learned Sessions Judge and the other before this Court, there cannot be by any stretch of imagination be called as revision petitions by the same person. So far as the petitioner is concerned, it is the first revision petition challenging the correctness or otherwise of the order of the learned Sessions Judge and hence, in my view, the revision petition is maintainable one.
10. This takes me to the next question as to the correctness or otherwise of the order of the learned Sessions Judge. As stated earlier, the learned Sessions Judge has allowed the application of the respondent and in turn ordered the learned Magistrate to convert the present case from Summons to Warrant Case under Section 259 of the Cr. P.C. which prayer was in fact declined by the learned Magistrate. On reading of Section 259, I am of the view that this exercise of jurisdiction under Section 259 is not available to the Magistrate at any stage earlier to the commencement of trial. The very opening words of the section,
'When in the course of the trial of a Summons Case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interest of justice, the offence should be tried in accordance with the procedure for the trial of Warrant Cases, such Magistrate may proceed to rehear the case in the manner provided by this Code for the trial of Warrant Cases and may recall any witness who may have been examined'.
Would show that the exercise must be during the course of trial. It is undisputed that the trial of a case as envisaged under Chapter XX of the Code of Criminal Procedure begins after substance of accusation is stated to the accused or what is commonly called as framing of charge. Admittedly, in the present case that stage has not yet reached. The case is only at the stage of taking cognizance and issue of process and no trial has commenced yet. Hence, the learned Magistrate could not have exercised the jurisdiction under Section 259 of the Cr. P.C. at the inception stage, but can do so only after the trial has commenced. This view of mine is fortified by the later mandate under Section 259 viz.,
'Such Magistrate may proceed to rehear the case in the manner provided by this Code for the trial of Warrant Cases and may recall any witness who may have been examined'.
Admittedly as there is no commencement of trial and obviously no evidence is recorded, the learned Magistrate rightly rejected to exercise the jurisdiction under Section 259 of the Cr. P.C. On the other hand, the learned Sessions Judge without adverting to this aspect, without assigning any reasons and only on the ground that the view of the Magistrate is untenable has now directed, by the impugned order, to convert the case from Summons Case to Warrant Case. As such, the impugned order is clearly illegal and contrary to the mandate of Section 259 of the Cr. P.C. and on this count alone, the revision petition is liable to be allowed, as the application of the respondent under Section 259 of the Cr. P.C. before the learned Magistrate was premature one.
11. It is to be noted that Section 259 is a newly introduced provision. The observations of the Joint Select Committee in this regard for the introduction of this provision are worth noting.
'The Committee considers that the Magistrate should have the power to convert the Summons Case into a Warrant Case in serious cases, if he considers it necessary to do so in the interest of justice. The need for such provision has arisen particularly because under the Bill, the scope for adopting the Summons Case procedure has been enlarged. The new section added by the Committee is enacted to give effect to this'.
12. Thus in my view, only after the commencement of the trial, if the learned Magistrate feels that in the interest of justice, it is necessary for conversion, especially in serious cases he can do so. I am of the view that only guidelines for the Magistrate to exercise the discretion under this section be 'in the interest of justice'. Interest of justice is however being a very flexible expression, which may not provide any dependable or decisive guideline to the Magistrate. I would like to add that the circumstances which the Magistrate may take into consideration in arriving at this decision in this regard may be,
1. the nature of the offence, simple or complicated;
2. the nature of evidence on record, the statement of few witnesses or lengthy statements coupled with mass of documentary evidence; and
3. the number of accused and the charges against them.
13. As I have found that the very application of the respondent under Section 259 of the Cr. P.C. is premature one, so also the order of the learned Sessions Judge, the impugned order of the learned Sessions Judge is set aside. However, it is open for the respondent to make such application under Section 259 of the Cr. P.C. only after the commencement of trial and the learned Magistrate can consider the same in accordance with the provisions under Section 259 of the Cr. P.C. and the aims and objects as enunciated by the Select Committee and observations of this Court as supra.
14. With these observations, the petition stands disposed of.
Note.-
The matter was heard for some time and reserved for orders. Today, when the matter was taken up for pronouncement of order, it is submitted by the learned Counsel for the respondent that the respondent has expired recently and as such this petition becomes infructuous. The other side concedes the fact that the respondent is dead. As such in the usual course the petition is to be dismissed having become infructuous clue to the death of the respondent.
But, it is to be noted that there are other accused in the case and the principle of law which I have considered is applicable to them also and as such after holding that the present revision petition has become infructuous due to the death of the respondent (accused 1) after the matter was reserved for order, as the question of law and the interpretation of Section 259 of the Cr. P.C. is taken up and decided. The pronouncement of the order is necessary for the guidelines as well as for implementation in respect of the other accused.
Let a copy of this order be sent to the learned Magistrate for implementation insofar as the other accused are concerned.