Bilal Nazki, J.
1. The petitioners have been convicted of the offence punishable under Section 220(3) of the Companies Act, 1956, in C.C. No. 251 of 2001, dated July 8, 2002, by the court of the Special Judge for Economic Offences, Hyderabad. Each of them was sentenced to pay fine of Rs. 5,000 in default, A2 shall have to undergo simple imprisonment for a period of one month each. This revision has been filed by the accused-petitioners against the said order of conviction and sentence.
2. A preliminary objection is taken by learned Counsel for the complainant-respondent that in terms of Section 374 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C'), an appeal is provided against the conviction and sentence. Therefore, the present revision case is not maintainable. Section 374(2) of the Code of Criminal Procedure lays down as under:
Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been against him or against any other person convicted at the same trial may appeal to the High Court.
3. However, Sections 375 and 376 of the Code of Criminal Procedure, mention the cases in which no appeal lies: Under Section 375 of the Code of Criminal Procedure, if the accused had pleaded guilty before the High Court or before a Court of Sessions, there would be no appeal. In terms of Section 376 of the Code of Criminal Procedure, appeal in petty cases is not permissible. Section 376(b) lays down that no appeal is provided where a Court of Sessions or Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding Rs. 200 or of both such imprisonment and fine.
4. Admittedly, the trial court has passed sentence of fine of Rs. 5,000 which takes it out of the purview of Section 376 of the Code of Criminal Procedure and as such, an appeal is available to the petitioners under Section 374 of the Code of Criminal Procedure.
The question, in these circumstances, would be whether the remedy of revision could be availed by the accused-petitioners, although they had a remedy of appeal.
5. Learned Counsel for the petitioners submits that under Section 397 of the Code of Criminal Procedure there is no restriction on the powers of this Court to entertain a revision, where it finds manifest illegality or miscarriage of justice.
6. Section 397 of the Code of Criminal Procedure is part of Chapter XXX of the Code of Criminal Procedure, which deals with 'reference and revision'. Section 397 lays down as under:
397. Calling for records to exercise 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.
(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
7. A perusal of this section would show that the High Court or the Sessions Judge is empowered to call for and examine the record of any proceedings before any inferior Criminal Court for the purpose of satisfying itself as to the correctness/legality or propriety of any finding, sentence or order.
8. Sections 397 - 405 of the Code of Criminal Procedure, lay down different powers of the High Court and form a scheme of superintendence by the High Court in order to ensure that there is no miscarriage of justice.
While examining the record after summoning it under Section 397, the court has to follow the procedure laid down in other provisions. Under Section 398 of the Code of Criminal Procedure the court can, after examining the record summoned under Section 397 of the Code of Criminal Procedure direct the Chief Judicial Magistrate or any subordinate Magistrate to make further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged.
9. Under Section 399 of the Code of Criminal Procedure, the Sessions Judge is empowered to exercise all those powers, which can be exercised by the High Court.
10. Under Sections 400 and 401 of the Code of Criminal Procedure powers of a Sessions Judge can also be exercised by the Additional Sessions Judge.
11. The limitations and conditions for exercise of powers under Sections 397 and 398 of the Code of Criminal Procedure are prescribed in Section 401 of the Code of Criminal Procedure.
12. Section 401 of the Code of Criminal Procedure lays down that in case of any proceeding of which the record has been called for, the court may exercise the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 of the Code of Criminal Procedure. In other words, after summoning the records under Section 397 of the Code of Criminal Procedure the court has to necessarily follow the mandate of Section 401 of the Code of Criminal Procedure.
13. One of the restrictions or limitations imposed under Section 401(3) is as follows:
Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
Section 401(4) of the Code of Criminal Procedure reads as under:
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.
14. Therefore, there is no doubt in my mind that where an appeal is prvided by the Code of Criminal Procedure a person who could have filed an appeal, cannot invoke the revisional jurisdiction of this Court under Section 397 of the Code of Criminal Procedure.
15. Learned Counsel for the petitioners has relied on various judgments of this Court and the apex court reported in Krishnan v. Krishnaveni : 1997CriLJ1519 , Thakasi Satyannmyana v. State of A.P. : [1985]153ITR818(AP) , Konajeti Rajababu v. State of A.P. : 2002(1)ALT403 Thupakula Ramachandra Reddy v. State of A.P. [1986] 2 (HC) 227 Ponduri Bushaiah v. Deputy Registrar of Co-operative Societies [2001] 2 ALT (Cri.) 334 and Talla alias Cakkula Sampath v. State of A.P. [2002] 1 ALT (Cri.) 373.
16. None of these judgments dealt with the question as to whether the remedy of revision under Section 397 of the Code of Criminal Procedure could be availed by the accused-petitioners, although they had a remedy of appeal in terms of the provisions of the Code of Criminal Procedure.
17. On the other hand, learned Counsel for the respondent has also relied on various judgments of this Court and the apex court reported in Vijay Pat v. State [1972] Crl. LJ 543 Jagir Singh v. Ranbir Singh : 1979CriLJ318 , State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand : 2004CriLJ4254 and C. Kunnhamad v. C. Abdul Kader [1978] Crl. LJ 19 (Ker).
18. Though the judgment of the apex court in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand : 2004CriLJ4254 , does not deal directly with the point, but, it has stated that the provisions contained in Sections 395 - 401 of the Code of Criminal Procedure read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power because the court was hearing a matter after the appellate court had decided it.
19. The Calcutta High Court while dealing with similar issue in a judgment reported in Ram Dass Ghosh v. State : AIR1958Cal615 , interpreted Section 439(5) of the Criminal Procedure Code, 1898 (old Cr.P.C.) and held that (page 616):
I, therefore, hold that the petitioner had clearly a right of appeal in the present case and therefore under Section 439, Sub-section (5) of the Code of Criminal Procedure, no proceeding by way of revision could be entertained at the instance of the party who could have appealed, but had not filed any.
20. For all these reasons, the criminal revision case is dismissed.