Sanchayita Lahkar

The High Court of Jharkhand Single Bench of Justice Sanjay Kumar Dwivedi dismissed a criminal revision petition filed by three accused who sought discharge under Section 245 of the Code of Criminal Procedure. The Court held that although Section 397 of the Code, corresponding to Section 438 of the Bharatiya Nagrik Suraksha Sanhita, confers concurrent revisional jurisdiction on both the Sessions Court and the High Court, parties are ordinarily required to first approach the Sessions Court unless special circumstances exist. Finding no exceptional reason to bypass this forum, the Court directed that the petitioners may approach the Sessions Judge, while extending interim protection for one month.

The criminal revision petition was filed by Dharam Kumar Saw @ Dharam Kr. Gupta, Sambhu Sao, and Mundri Devi challenging the order dated 25 February 2023 passed by the Judicial Magistrate, 1st Class, Dhanbad in Complaint Case No.1581 of 2014. By the impugned order, the Magistrate rejected an application dated 24 November 2017 filed by the petitioners under Section 245 of the Code of Criminal Procedure, 1973, seeking their discharge.

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The petitioners approached the High Court directly, invoking its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, corresponding to Sections 438 and 442 of the Bharatiya Nagrik Suraksha Sanhita, 2023. The argument advanced on their behalf was that concurrent jurisdiction exists with both the Sessions Court and the High Court, and therefore, it was open to the litigant to choose either forum. Learned counsel for the petitioners relied upon the Supreme Court decision in Central Bureau of Investigation v. State of Gujarat (2007) 6 SCC 156, submitting that the High Court had jurisdiction to entertain their revision directly. It was further argued that if the petitioners had first approached the Sessions Court, they would have been barred from filing a second revision before the High Court due to Section 397(3) Cr.P.C., corresponding to Section 438(3) BNSS.

The petitioners contended that several judgments had clarified that once a revision petition was dismissed by the Sessions Court, a second revision before the High Court would not be entertained, and even petitions under Section 482 Cr.P.C. were often refused on the ground that they amounted to a second revision. They pointed out that a Coordinate Bench of the High Court had earlier dismissed similar petitions as not maintainable, directing litigants to first move the Sessions Court. The petitioners submitted that this approach was contrary to Section 397 Cr.P.C. and Section 438 BNSS, which permitted direct recourse to the High Court.

In support of their submissions, the petitioners referred to judgments of the Supreme Court in Jagir Singh v. Ranbir Singh (AIR 1979 SC 381), Pranab Kumar Mitra v. State of West Bengal (AIR 1959 SC 144), and Central Bureau of Investigation v. State of Gujarat (supra). They also cited rulings of the Bombay High Court, including Padmanabh Keshav Kamat v. Anup R. Kantak (1999 Cri.L.J. 122) and Tejram Mahadeorao Gaikwad v. Sunanda Tejram Gaikwad (1996 Cri.L.J. 172), to argue that the High Court could directly entertain revision petitions under Section 397 Cr.P.C..

The State and the opposite party opposed the maintainability of the revision, contending that in the absence of special or exceptional circumstances, the proper course for the petitioners was to first approach the Sessions Court in revision. They submitted that the practice of bypassing the Sessions Court undermined the statutory hierarchy and the principle of propriety in the exercise of concurrent revisional jurisdiction.

Justice Sanjay Kumar Dwivedi recorded that Section 397 of the Code “transpires that there is no prohibition for approaching the High Court directly” and cited Jagir Singh v. Ranbir Singh and CBI v. State of Gujarat. The Court referred to Pranab Kumar Mitra v. State of West Bengal, where the Supreme Court had stated: “Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case.”

In Padmanabh Keshav Kamat v. Anup R. Kantak, the Bombay High Court held: “The net result of the foregoing discussion is that the present revision application which is filed directly to the High Court, will have to be held as maintainable and not barred by any provision of section 397 of the Criminal Procedure Code. However, maintainability of a proceeding is one thing while its entertainment is another.”

Justice Dwivedi quoted from Tejram Mahadeorao Gaikwad v. Sunanda Tejram Gaikwad: “It is undoubtedly true that Section 397 of the Code of Criminal Procedure confers jurisdiction of revision concurrently on the Court of Sessions as well as the High Court, but it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the Superior Court is made out.”

Discussing the petitioners’ reliance on CBI v. State of Gujarat, the Court noted that the Supreme Court in that case held: “There was no bar for the High Court to entertain the said petition. The criticism levelled against the CBI and its officers and cost imposed do not have any legal sanction. They are accordingly set aside.” Justice Dwivedi observed that while this clarified the absence of a bar, propriety still demanded that litigants first approach the Sessions Court.

The Court stated: “When concurrent jurisdiction is given specially under such circumstances when both are superior Courts one to the Magistrate and another to the Sessions, then the propriety demands that elder superior Court in Hierarchy must be first approached. This is the customary common law as the first elders are always respected.”

The Court distinguished between the scope of Sections 397 and 482 of the Code: “This will also be in the benefit of the litigants by doing so as the party getting order from learned Magistrate will get double remedy, firstly he will approach the Court of Sessions in revision, which is a highest Court of criminal trial and after examining the legality, propriety and correctness of the order of sentence, the Sessions Court comes to the conclusion that the order requires no interference under Section 397 of the Code, then the party has still second remedy to approach the High Court under Section 482 Cr.P.C. or Section 528 of BNSS.”

Justice Dwivedi further recorded that “the exercise of revisional powers is not a matter of course, but it is a matter of rare and sparing use and, as such, when two fora are available to the petitioners for getting redressal of the alleged wrong, then it will certainly be more appropriate for them to first approach the first forum.”

“This Court is not inclined to interfere with the impugned order, which has been passed by the learned Judicial Magistrate without first approaching to the next higher court i.e. the Court of Sessions under Sections 397 read with 399 of the Code, corresponding to Sections 438 and 440 of the BNSS, as no special and exceptional reasons have been assigned for filing the revision petition directly in this Court.”

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“Consequently, this criminal revision petition is dismissed. However, the petitioners are at liberty to file fresh revision petition before the learned Sessions Judge and in that event the period taken during this revision petition will not come in the way for the purpose of limitation. The ground/plea taken by the petitioners herein, will be considered by the learned Sessions Judge.”

“Considering that the Coordinate Bench of this Court has passed the interim protection in favour of the petitioners vide order dated 06.03.2025 and it is continued till date and since the petitioners are given liberty to approach the learned Sessions Judge and in that view of the matter, the said interim protection shall remain operational for further one month.”

The Court also disposed of all pending interlocutory applications.

Advocates Representing the Parties

For the Petitioners: Mr. Gaurav Kumar, Advocate
For the Respondents: Mr. Sanjay Kumar Srivastava, A.P.P., Mr. Ranjan Kumar Singh, Advocate

Case Title: Dharam Kumar Saw @ Dharam Kr. Gupta & Ors. v. The State of Jharkhand & Anr.
Neutral Citation: 2025: JHHC:27802
Case Number: Criminal Revision No. 417 of 2023
Bench: Justice Sanjay Kumar Dwivedi