Bombay HC Quashes Session Judge's Suo Moto Exercise Of Revision Power, Says 'Uncalled Activism' Would Create Hindrance In Legal Proceedings

A division bench of Justice Vinay Joshi and Justice Vrushali V. Joshi remarked,

“When the statute has invested powers to the Court, it also carries responsibility...Sou moto powers are to be exercised sparingly when the orders of inferior Court are against the law, procedure or there is a glaring mistake. The uncalled activism would put unnecessary hindrance in the smooth legal proceedings.”

The Court was considering the petitioner's challenge to the action of the Sessions Judge taking suo moto cognizance of the order of Judicial Magistrate First Class. The Sessions Judge however invoked revisional powers under Section 397(1) CrPC to examine the correctness, legality and propriety of this order.

The Magistrate's order permitted the investigating agency/CID to arrest respondent no.2/accused during night hours with a rider that the arrest shall be made by a woman police officer by following due process of law.

The accused woman was charged under Section 304 IPC (culpable homicide not amounting to murder) for causing the death of two persons in a road accident.

The High Court noted that the accused herself did not have a grievance about the grant of permission to arrest her during night hours.

It stated that while the Sessions Judge is empowered to exercise suo moto revisional powers, there must be a prima facie reason to exercise such powers

Here, it noted that the order was silent as to what caused or prompted the Sessions Judge to exercise suo moto powers. It remarked “The judicial orders cannot be on personal whims, but, it shall be backed by at least some prima facie reasons.”

The Court stated that the Magistrate's order did not fail on the premise of procedural illegality as Section 43(5) of the BNSS permits the Magistrate to grant permission to arrest a female during night hours. On account of correctness, it noted that the Magistrate considered that the offence was serious and there was a possibility of accused absconding. On propriety, it noted that there was no justification for Sessions Judge to take suo moto action as it would slow down the ongoing proceedings.

The Court further observed that Section 397(2) CrPC precludes the invocation of revision jurisdiction, if the order is of interlocutory nature. It stated that the Magistrate's order did not deal with the final rights of the parties but was merely a procedural aspect.

“The order which has no bearing on the proceeding nor would terminate the proceeding is purely of interlocutory nature, which is not revisable. Despite such statutory rider, revisional powers are invoked that too suo moto.”

The Court thus quashed the order of Sessions Judge invoking suo moto revisional power and remarked “We expect that the Sessions Judge shall keep restrain in exercising such powers and also think about the impact of such order on other pending proceedings. The higher Courts must act with higher responsibility.”

Case title: Shahrukh Ziya Mohammad vs. State of Maharashtra & anr. (Criminal Writ Petition No. 783/2024)