Revision

and may, when calling for the record, direct that the execution of any sentence or order be suspended, and, if the accused is in confinement, that he be released on his own bond or bail 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 for the purposes of this sub-section and of section 439.

Sub-section (2), the interlocutory bar. The powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

Sub-section (3), one forum only. If an application 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.

Section 439: ordering further inquiry

On examining any record under section 438 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate, by himself or by any Magistrate subordinate to him, to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into:

• any complaint dismissed under section 226 or section 227(4); or
• the case of any person accused of an offence who has been discharged.

Proviso: no such direction for inquiry into the case of a person who has been discharged shall be made unless he has had an opportunity of showing cause why the direction should not be made.

Sections 440 and 441: the Sessions Judge

Section 440(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 section 442(1).

Sub-section (2). Where a revision is commenced before a Sessions Judge, sub-sections (2), (3), (4) and (5) of section 442 apply, references to the High Court being read as references to the Sessions Judge.

Sub-section (3), finality. Where an application for revision is made by or on behalf of any person before the Sessions Judge, his decision in relation to that person shall be final, and no further proceeding by way of revision at the instance of that person shall be entertained by the High Court or any other Court.

Section 441. An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case transferred to him by or under any general or special order of the Sessions Judge.

Section 440(1) has a condition inside it that is easy to read past: the record of which has been called for by himself. The Sessions Judge's revisional powers attach to records he has called for.

Section 442: the High Court's powers

Sub-section (1), the powers. 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 427, 430, 431 and 432, or on a Court of Session by section 344; and where the Judges composing the Court of revision are equally divided in opinion, the case is disposed of in the manner provided by section 433.

So the revisional powers are the appellate powers borrowed: section 427, the powers of the Appellate Court; section 430, suspension of sentence and bail; section 431, arrest in an acquittal appeal; section 432, additional evidence; and section 344, the power to tender a pardon after commitment.

Sub-section (2), a hearing before prejudice. No order 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 advocate in his own defence.

Sub-section (3), the great limitation. Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

Sub-section (4), the appeal not taken. Where 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.

Sub-section (5), the honest mistake. Where an appeal lies but a revision application has been made to the High Court and the High Court is satisfied that it was made under the erroneous belief that no appeal lies and that it is necessary in the interests of justice, it may treat the application for revision as a petition of appeal and deal with it accordingly.

Sub-sections (3) and (4) are the two most quoted lines of the Chapter, and they should not be confused. Sub-section (3) is about what the Court may do: never turn an acquittal into a conviction. Sub-section (4) is about who may ask: not the man who had an appeal and let it go.

Sections 443 to 445: split applications, hearing, certifying

Section 443(1). Where one or more persons convicted at the same trial apply to the High Court for revision and another person convicted at the same trial applies to the Sessions Judge, the High Court shall decide, having regard to the general convenience of the parties and the importance of the questions involved, which of the two Courts should finally dispose of the applications; and it shall direct transfer to itself, or transfer of the applications made to it to the Sessions Judge, accordingly.

Sub-sections (2) and (3). The Court to which applications are transferred deals with them as if duly made before itself.

Sub-section (4). Where the High Court transfers to the Sessions Judge, no further application for revision shall lie to the High Court or any other Court at the instance of the persons whose applications the Sessions Judge disposes of.

Section 444, the hearing. Save as otherwise expressly provided, no party has any right to be heard either personally or by an advocate before any Court exercising its powers of revision; but the Court may, if it thinks fit, hear any party either personally or by an advocate.

Read section 444 with section 442(2). There is no right to be heard; but no order to a person's prejudice may be made unless he has had an opportunity of being heard. The two together mean: you cannot demand a hearing, but you cannot be hurt without one.

Section 445, certifying down. When a case is revised by the High Court or a Sessions Judge, it shall, in the manner provided by section 429, certify its decision or order to the Court which recorded or passed the finding, sentence or order revised, and that Court shall make such orders as are conformable to the decision certified, and if necessary the record shall be amended accordingly.

A worked example

A Magistrate discharges the accused in a complaint case. The complainant has no appeal.

What can he do? Apply in revision, to the High Court or the Sessions Judge. And the superior Court may also act on its own, since section 438(1) does not require an application at all.

Which court, and can he try both? One only. Having applied to one of them, no further application by him shall be entertained by the other, section 438(3). And if he applies to the Sessions Judge, that decision is final for him: no further revision to the High Court, section 440(3).

What may the Court do about a discharge? Under section 439 it may direct the Chief Judicial Magistrate, himself or through a subordinate Magistrate, to make further inquiry into the case of a discharged person, or into a complaint dismissed under section 226 or section 227(4). But not without giving the discharged person an opportunity of showing cause against the direction.

Change it: the Magistrate convicted the accused and he did not appeal. He cannot now come in revision: section 442(4) bars a revision at the instance of the party who could have appealed.

But suppose he filed a revision believing no appeal lay. The High Court may, if satisfied of that erroneous belief and that it is necessary in the interests of justice, treat the revision as a petition of appeal, section 442(5).

Change it again: the accused was acquitted and the complainant seeks revision. The High Court may examine the record, but it cannot convert the acquittal into a conviction, section 442(3). What it can do, under the borrowed section 427 powers, includes ordering a retrial.

A party applies against an order refusing an adjournment. Not maintainable: that is an interlocutory order, section 438(2).

Pending the examination of the record, the Court may suspend the execution of the sentence or order and, if the accused is in confinement, release him on his own bond or bail bond, section 438(1).

The accused says he was never heard in the revision. He has no right to be heard, section 444; but no order may be made to his prejudice unless he has had an opportunity of being heard personally or by advocate, section 442(2).

Two co-convicts apply to the High Court and a third to the Sessions Judge. The High Court decides which Court should dispose of all of them, having regard to general convenience and the importance of the questions, and directs the transfer, section 443. If it sends them to the Sessions Judge, no further revision lies to it at the instance of those persons, sub-section (4).

Finally, the revising Court certifies its decision in the manner of section 429 to the Court below, which makes orders conformable to it, amending the record if necessary, section 445.

Distinctions

What this does NOT mean

Revision is not a second appeal. Section 442(4) shuts out the party who had an appeal and did not bring it, and section 440(3) makes the Sessions Judge's decision final for the applicant.

It does not reach every order. Section 438(2) excludes interlocutory orders in any appeal, inquiry, trial or other proceeding.

It cannot convict an acquitted man. Section 442(3) is absolute; a retrial is a different thing from a conviction.

A revision application is not a right to a hearing. Section 444 says no party has a right to be heard, though the Court may hear anyone it thinks fit.

And a discharged man cannot be sent back to trial behind his back. The proviso to section 439 requires an opportunity of showing cause before a direction for further inquiry into his case.

Quick revision

• 438(1): the High Court or a Sessions Judge may call for and examine the record of any inferior Criminal Court in its local jurisdiction, to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and the regularity of the proceedings, and may suspend execution and release the accused on his own bond or bail bond. Explanation: all Magistrates, Executive or Judicial, original or appellate, are inferior to the Sessions Judge.
• 438(2): no revision of an interlocutory order. 438(3): having applied to one, not to the other.
• 439: the record examined, the Court may direct further inquiry into a complaint dismissed under s.226 or s.227(4) or the case of a discharged person, the latter only after an opportunity to show cause.
• 440: on records he has called for, the Sessions Judge has the High Court's s.442(1) powers, with s.442(2) to (5) applying; his decision on an application is final for that person. 441: an Additional Sessions Judge has those powers in transferred cases.
• 442(1): the High Court may exercise the powers of an Appellate Court under ss.427, 430, 431 and 432 and of a Court of Session under s.344; an equal division is resolved under s.433.
• 442(2): no order to anyone's prejudice without an opportunity of being heard. 442(3): no acquittal converted into a conviction. 442(4): no revision where an appeal lay and was not brought. 442(5): a revision filed under the erroneous belief that no appeal lay may be treated as an appeal.
• 443: where co-convicts apply to different Courts, the High Court decides which Court disposes of all, on convenience and importance; after a transfer to the Sessions Judge, no further revision.
• 444: no right to be heard in revision, but the Court may hear any party. 445: the decision is certified in the manner of section 429, and the Court below conforms, amending the record if necessary.

Test yourself

1. For what purpose may a record be called for in revision? To satisfy the High Court or Sessions Judge 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 the inferior Criminal Court, section 438(1).

2. Can an interlocutory order be revised? No. Section 438(2) says the powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

3. May a person apply to the Sessions Judge and then to the High Court? No. Section 438(3) bars a further application by the same person to the other Court, and section 440(3) makes the Sessions Judge's decision final for that person.

4. Can the High Court convert an acquittal into a conviction in revision? No. Section 442(3) expressly denies that power.

5. Can a convict who did not appeal apply in revision? No. Where an appeal lies and none is brought, section 442(4) bars a revision at the instance of the party who could have appealed. But under sub-section (5) the High Court may treat a revision filed under the erroneous belief that no appeal lay as a petition of appeal, if it is necessary in the interests of justice.

6. Has a party a right to be heard in revision? No. Section 444 says no party has such a right, although the Court may hear any party personally or by advocate; and by section 442(2) no order may be made to a person's prejudice unless he has had an opportunity of being heard.

7. Before ordering further inquiry into the case of a discharged person, what must the Court do? Give him an opportunity of showing cause why the direction should not be made, proviso to section 439.