Judgment:
Majmudar, J.
1. A short question. has been referred for the decision of the Full Bench. The said question is as to whether this revision application should be placed for final hearing before learned single Judge of this court or whether it should be heard by a Division Bench of this Court.
2. In order to appreciate the background giving rise to this question, it is necessary to note a few relevant introductory facts.
3. The petitioner is the original accused in criminal case No. 2173 of 1982 on the file of the learned Judicial Magistrate, First Class, Surendranagar. He was charged with the offence under S. 420 read with S. 109, I.P.C. After trial, he was convicted by the learned trial -Judge and was sentenced to undergo R. 1. for four years and to pay a fine of Rs. 10,000/-, in default, to undergo further R. 1. for one year. That order was passed on 9-6-1983. As the said order was appealable under S. 374(3) of the Criminal P.C., 1973 to the court of session, the petitioner preferred an appeal against the order of the learned trial Judge to the Sessions Court of Surendranagar. The said appeal was heard by the learned Sessions Judge who dismissed the same on 23-11-1983. It is thereafter that the petitioner came to this court by way-.of the present criminal revision application under S. 397 read with S. 401, of the Criminal P.C. This revision application was placed for admission hearing before a Division Bench of this Court (Coram: V.V. Bedarkar and M.S. Shah, JJ.). It was acquitted and the petitioner was ordered to be released on bail on conditions mentioned in the orders. Thereafter, this revision application reached final hearing before another Division Bench of this Court consisting of D.H. Shukla and (one of us), A. P. Ravani, JJ. The said Division Bench was prima facie of the view that the revision application, as per the Appellate Side Rules, 1960, should be placed for final hearing3, 4~, 6 before a learned single Judge. However, as 6 there was an earlier decision of another Division Bench of this Court (Coram: V. Bedarkar (as he then was) and M.S. Shah, JL) in Criminal Revision Applications Nos. 183, 222, 254 and 259 of 1983, dated 30-11-1983, taking the view that criminal revision applications against conviction and sentence of Aft than three years should. be placed before a Division Bench for disposal and with which view, the Division Bench taking up this criminal revision application for final hearing was unable to agree, the present Reference has been made to a larger Bench by Reference order dated 26-6-1986).
4. It was vehemently contended before us by the. learned P.P. appearing for the respondent-State of Gujarat that as per the relevant Appellate Side Rules, this revision application has to be heard by a single Judge of this Court Mr.A.D. Shah for the petitioner, on the other hand, submitted that the view expressed by the Division Bench consisting of V. V. Bedarkar (as he then was) and M.S. Shah, JJ. on 30-11-1983 in Criminal Revision Applications Nos. 183 of 1983 and group is the correct view and does not require to be displaced.
5. In order to resolve the aforesaid controversy between the parties, it is necessary to refer to the relevant provisions of the Criminal P.C. and the Appellate Side Rules holding the field. In chapter 29 of the Criminal P.C. provision for appeals in diverse cases has been made. Section 374(2) lays down that 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 passed against 1im or against any other person convicted at the same trial may appeal to the High Court, Section 377(1) provides for an appeal by the State Government against sentence to the High Court in any case of conviction on a trial held by any court other than a High Court~ on the ground of inadequacy of the sentence imposed by the trial court. Appeals against acquittal are contemplated by S. 378(1) of the Code and such appeals can be presented to the High Court from an original or appellate order of acquittal passed by any court other than a High Court or an order of acquittal passed by the court of session in revision. Section 392 lays down the procedure to be followed where Judges constituting appellate Bench of the High Court are divided in opinion. Then follow Ss. 397 and 401 of the Code which provide for revisional powers of the High Court apart from the revisional. powers of the Sessions Court and mode and manner of exercise of revisional power of the High Court. It, therefore, becomes obvious that Code of Criminal Procedure has laid down a clear-cut demarcation between the appellate and revisional jurisdiction of the concerned courts including the High Court.
6. In exercise of its powers under S. 108 of the Government of India Act, 1915, the then Bombay High Court had framed rules named and styled as Rules of the High Court of Judicature at Bombay, Appellate Side, 1960. These rules, with subsequent modifications, have been adopted by this court and the are holding the field today. Section 108 of the Govt. of India Act, 1915 lays down as under : -
'108(1) Each High Court may by its own rules provide, as it thinks fit for the exercise, by one or more Judges, or by Division Courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the court.
(2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone and what Judges of the court whether with or without the Chief Justice, are to constitute the several Division Courts'.
This provision came up for consideration of the Supreme Court in the case of N.S. Thread Co. v. James Chadwick : [1953]4SCR1028 . Mahajan, J. speaking for the Supreme Court while considering the scope and ambit of section 108 of the Government of India Act, 1915 in juxtaposition with Art. 225 of the Constitution and clause 15 of the Letters Patent (Bombay), made the following pertinent observations :-
'The power that is conferred on the High Court by S. 108; Government of India Act, 1915, still subsist' and it has not been affected in any manner whatever either by the Government of India Act, 1935 or by the Constitution of India. On the other hand, it has been kept alive and reaffirmed with great vigour by these statutes. The High Courts still enjoy the same unfettered power as they enjoyed under S. 108, Government of India Act, 1915 of making rules and providing whether an appeal has to be heard by one Judge or more Judges or by Division Courts consisting of two or more Judges of the High Court. Further, 'the reference in CL 15 to S. 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution'.
In view of the aforesaid settled legal position, therefore, it must be held that the relevant rules forming part of the Appellate Side Rules are statutory in character and have force as such. Part 1 of the Appellate Side Rules deals with conduct of business. Chapter I thereof lays down jurisdiction of single Judges and Benches of the High Court. Rule 2 of Chapter I provides that 'Save as otherwise expressly provided by any law in force or by these rules, a single Judge may dispose of the following matters...........Para 2 of Rule 2 of Chapter I deals with Criminal matters and' mode and manner of disposal of such matters. In that para, at item No. 8 are found criminal revision applications. The said item reads as under : -
'Applications for the exercise of the court's revisional jurisdiction under Section 439 of Criminal Procedure Code, 1898 (which will be analogous to section 397 read with section 401 of the present Code) and the disposal of cases of which record is called for an examination of criminal returns or otherwise'.
It is, therefore, clear that all criminal revision applications filed in the High Court, as per the mandate of the aforesaid clause 8, para 2 of Rule 2 of Chapter I of the Appellate Side Rules, have to be placed for disposal before a single Judge of the High Court. However, a Division Bench of this court consisting of V.V. Bedarkar (as he, then was) and M.S. Shah, JJ. by their judgment dated 30-11-1983 in Criminal Revision Applications Nos. 183/83 and group (supra), took the view that when the High Court exercises revisional jurisdiction, it gets clothed under S. 401 of the Code with the powers conferred on a' court of appeal under Ss.'386, 389, 390 and 391, hence it would be in the fitness of things that revision applications against the orders of conviction and sentence rendered by the lower courts when the sentence exceeds three years should be heard by a Division Bench of the court as appeals against such sentences are to be heard by a Division Bench. In our view, with great respect to the learned Judges who took the view as aforesaid, it is impossible to hold that such a course can legally be adopted. It may be that even in given contingencies, revisional court may exercise powers of an appellate court. But all the same, it would be exercising its revisional jurisdiction and it cannot treat the proceedings before it as appellate pr9ceedings. In this connection, it is also necessary to have a look at clause (1) of para 2 of Rule 2. It deals with appeals, against convictions in which only a sentence of fine or of imprisonment for a period not exceeding 3 years, with or without fine, has been imposed, except (i) where a notice of enhancement of sentence has been issued where the accused has been sentenced for a term of 2 years or more and (ii) where a notice has been issued to show cause why his conviction should not be altered to one of an offence punishable with death or transportation for life. It is also necessary to note clause (2) which deals with appeals or applications against orders of acquittal by a City Magistrate or Judicial Magistrate. Clause 9 deals with applications under S. 561A of the Criminal Procedure Code, 1898 which will now be analogous to S. 482 of the present Code. As per these clauses, the learned single Judge can hear appeals against acquittal and also can hear appeals against conviction provided the sentence imposed is not .exceeding three years and also in contingencies not excepted by clause 1. The learned single Judge can also hear applications for quashing the process under S. 482 of the present Code, even in murder cases. However, when we come to criminal revision applications, clause 8 in terms provides that they have to be heard by a learned single Judge. It is difficult to appreciate how this mandatory statutory scheme reflected by the aforesaid clauses of R. 2 para 2 of the Appellate Side Rules can be by-passed by directing criminal revision applications to be placed for final hearing before a Division Bench in cases where the sentence imposed on the petitioner by the lower court is more than three years. Even though such sentences are imposed by the lower court and they are brought in challenge in revision application, proceedings would remain revisional proceedings all the same and cannot be equated with appellate proceedings which have clear-cut demarcation and which are contemplated only by S. 374(2) of the Code. They can never be equated with the revisional proceedings under S. 397 read with S. 401 of the Code. It is also pertinent to note that in any case, if the learned single Judge feels that the criminal matter placed before him for disposal or that the question pending in such matter may be referred to a Division Bench of two Judges, he can do so under clause 5(l) of Para 2 of Rule 2 of Chapter 1. The said provision can obviously take care of the situation wherein a revision application may be pending before a single Judge and from the same judgment any appeal may be filed by the State either under S. 377(1) or where appeals by other accused convicted by the common judgment might be pending before the Division Bench for disposal. Consequently, it is not possible to agree with the contention of Mr. Shah for the petitioner that in such cases, the revision application can be treated almost like appeal and should be placed for disposal before the Division Bench. If, that course is adopted, it will amount to rewriting of clause 5 of para 2 of Rule 2 of the Rules or at least its modification or amendment by judicial decision which cannot be done and on the contrary such exercise will fly in the face of the mandate of the statutory rules as aforesaid. We must, therefore, hold that the decision rendered by V.V. Bedarkar (as he then was) and M.S. Shah, JJ. on 30-11-1983 in Criminal Revision Applications Nos. 183 of 1983 and group does not lay down good law and correct legal procedure and has, therefore, to be overruled. It must be held that the criminal revision applications against the orders of conviction and sentence rendered by lower courts even though sentences imposed are for more than three years, will have to be placed for disposal before learned single Judge of the court and not before a Division Bench.
7. Before parting with this matter, we must note two submissions placed for our consideration by Mr. Shah for the petitioner, in the light of S. 401 of the Code. He submitted that 'under S. 401(1) it has been laid down that when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392. Placing reliance on this provision, he submitted that a criminal revision application, as contemplated by the Legislature can be heard by a Division Court of the High Court consisting of two Judges or more. There cannot be any dispute about the same. However, the. aforesaid provision also cannot be read in the reverse to mean that a criminal revision application cannot be heard by a single Judge of the High Court. No such legislative mandate is discernible from S. 401(1) of the Code. There are two obvious reasons why such an inference is not possible. Firstly, the Code of Criminal P.C. governs the procedure in revision applications pending in different High Courts in the country. If as per the rules of a given High Court, criminal: revision applications are to be heard by a Bench of two Judges, the procedure laid down by S. 401(1) would be applicable in cases where Judges composing the court are equally divided in opinion. The second reason why the aforesaid provision cannot necessarily be read to mean that revision application can be! heard by a Bench of two Judges is that even in cases where the learned single Judge in exercise of his powers under clause (5) of Para 2 of Rule 2 directs that a revision application should be referred for disposal to a Bench of two Judges, the procedure which should be followed by such Bench hearing the referred revision application, if their opinions are equally divided, has to be one as contemplated by S. 401(1) of the Code. Consequently merely because sub-section (1) of S. 401 has provided for such contingencies, it cannot be held that implicit in the said provision is the legislative mandate that all revision applications pending in all High Courts shall be heard by a Bench of two Judges.
8. Mr. Shah's next contention was that as per sub-section (5) of Section 401, if the High Court hearing a revision application is satisfied that an appeal lies against the order but an application for revision has been preferred, against such order under an erroneous belief that no appeal lies thereto and if the High Court finds 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. Mr. Shah submitted that if such an eventuality happens and if the sentence rendered by the lower courts is for more than three years, at that stage, the matter will have to be referred to a Division Bench as per clause (1) of Para 2 of Rule 2 of the Appellate Side Rules. We fail to appreciate how this situation can hold the, petitioner. In contingencies contemplated by sub-section (5) of Section 401, once a revision application is treated as an appeal by the, High Court, then obviously at that stage, if the conviction rendered by the lower court is far more than three years, an appeal against such conviction and sentence once treated as such, will by the very force of clause (1) of para 2 of Rule will have to be decided by a Division Bench and at that stage, it would naturally stand transferred to the Division Bench. But so long as such contingency does not happen, it can never be assumed that the pending revision applications against the conviction and sentence of more than three years can, by themselves, be treated as such appeals and should be heard by a Division Bench. Consequently, the aforesaid contention of Mr. Shah also has no substance and has to be rejected.
9. The present criminal revision application, therefore, will have to be placed for final hearing before the learned single Judge taking up such matters.
10. the Reference is accordingly disposed of.
11. Order accordingly.