Calcutta High Court (Appellete Side)
Tapan Kumar Halder vs Ranita Halder on 12 February, 2026
12.02.2026
Court No.42
D/L 67
Sudipta
CRR 4281 of 2024
with
CRAN 1 of 2025
CRAN 2 of 2026
Tapan Kumar Halder
Vs.
Ranita Halder
Mr. Jyotirmoy Som
Mr. Archo Ghosh
...for the petitioner.
Mr. Soumya Banerjee
Ms. Sucheta Banerjee
...for the opposite party.
1. The present cases pertain to the filing of the revision
petitions by the petitioners against the Order(s) dated 16th
March, 2024 passed by the learned Judicial Magistrate(s).
The plea taken by the Learned Counsel for the petitioners is
that since there is concurrent jurisdiction provided under
Sections 399 and 401 of the Code of Criminal Procedure,
1973 (Corresponding Sections 438, 440, 442 and 528 of the
BNSS) respectively, therefore, the present petitions are
maintainable before this Court.
2. Learned counsel for the petitioner has predominantly
raised the plea that since the legislature has provided
concurrent jurisdiction of revision to the Sessions Court
and the High Court, therefore, the doors of the High Court
cannot be shut for the petitioners as the second revision
2
petition is barred under the BNSS, 2023. Therefore, the
petitioners would be deprived of the invoking jurisdiction of
this Court, if the revision petition is relegated to the
Sessions Court.
3. This Court has considered the submission of the
learned counsel for the petitioners. There cannot not be any
quarrel to the proposition that the statute provides the
concurrent revisional jurisdiction to the Sessions Court and
the High Court. The Court is conscious of the settled legal
proposition that if a revision petition is directly filed before
the High Court, it would be maintainable. The only question
which falls for consideration is that whether in the face of
such concurrent jurisdiction vested on the Sessions Courts
and the High Court, the High Court should ordinarily
entertain it or not. This issue becomes more important in
view of the heavy pendency in the High Court. The Court is
also sensitive to the fact that cost of litigation is
astronomical and, therefore, all efforts should be thereto
minimise it. The convenience of stake holders is also an
important issue. Such an issue is more relevant in big
states like West Bengal, where people have to undertake
long journey to come to the High Court, which again is a
toll on the litigants physically, mentally and economically.
4. Bare perusal of Section 399 and Section 401 Cr.P.C.
which are akin to Section 440 and 442 of BNSS makes it
clear that the Session Judge and High Court have the
3
concurrent power of revision. Thus, prima facie, the revision
petition can be filed either before the High Court or the
Sessions Court. Before proceeding further, it is necessary to
bear in mind the settled proposition of law is that the
revisional jurisdiction is not a matter of right. The
legislature has conferred such power on the High Court and
Session Court primarily to ensure that the justice is
imparted and in accordance with the principles of law and
the subordinate criminal courts do not exceed their
jurisdiction. The revisional jurisdiction is primarily to
prevent the subordinate court from abusing or misusing the
power vested in them. It is also a settled proposition that
the High Court is not bound to entertain an application in
revision. Reliance can be placed upon Pranab Kumar Mitra
vs. State of West Bengal, AIR 1959 SC 144.
5. The similar question came up before the High Court of
Jharkhand in Criminal Revision No. 417 of 2023 titled as
Dharam Kumar Saw Alias D.K. Gupta & Ors. vs. State of
Jharkhand & Anr. There the plea of the concurrent
jurisdiction was also raised and it was canvassed that it is
for the litigant to choose the forum. The High Court of
Jharkhand in the case of Dharam Kumar Saw Alias D.K.
Gupta & Ors. vs. State of Jharkhand & Anr.(supra) relied
upon the judgment of the Bombay High Court in
Padmanabh Keshav Kamat vs. Anup R. Kantak & Anr., 1999
Cri. LJ. 122 and, inter alia, held as under:
4
"8. The above judgment of the Hon'ble Supreme Court
was the base in a revision petition filed under Section
397 of the Code directly to the High Court before the
learned Single Judge of Bombay High Court in
Padmanabh Keshav Kamat v. Anup R. Kantak and
others, reported in 1999 Cri.L.J. 122, wherein at
paragraphs 11 and 12, it has been held as under:
"11. 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. When the
proceeding is maintainable by two different courts,
one being inferior or subordinate to the other, then
it is certainly a question of propriety, particularly
for the superior Court, as to whether it should
entertain such a proceeding which could have
been filed in the lower Court. It is material to note
that revision is not a statutory right of a litigant
but it is a matter of discretion of the Court having
revisional jurisdiction.
12. In (Pranab Kumar Mitra v. State of West
Bengal and another) 3, A.I.R. 1959 S.C. 144, the
Supreme Court while dealing with the revisional
powers of the High Court observed:--
"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. The revisional powers of the High
Court vested in it by section 439 of the Code,
read with Section 435,do not create any right
in the litigant, but only conserve the power of
the High Court to see that justice is done in
accordance with the recognised rules of
criminal jurisprudence, and that subordinate
criminal courts do not exceed their
jurisdiction, or abuse their powers vested in
them by the Code. The High Court is not
bound to entertain an application in revision,
or having entertained one, to order
substitution in every case. It is not bound the
other way, namely, to treat a pending
application in revision as having abated by
reason of the fact that there was a composite
sentence of imprisonment and fine. The High
5
Court has been left complete discretion to
deal with a pending matter on the death of
the petitioner in accordance with the
requirements of justice."
In the case of Madhavlal v. Chandrashekhar
(supra) there were special and exceptional
circumstances which in a way justified filing of the
revision application directly to the High Court.
However, in the instant case no special
circumstances which required the petitioner to
bypass the forum of the Sessions Judge and rush
directly to the High Court, are pointed out. The
petitioner could have very well filed his application
even before the Sessions Judge, Panaji. However,
he did not do so. The only explanation which Shri
Lotlikar could give was that previously this
dispute had come before this Court when the
petitioner had filed Criminal Writ Petition No. 9
of1997. However, it is material to note that the
said criminal writ petition was not decided on
merit nor did the learned Single Judge give any
finding on any factual aspect. He simply
remanded the matter with a direction to decide the
respondent No. 1's application under section 457
after giving opportunity of hearing to the petitioner.
Therefore, the mere fact that the dispute between
the parties had once come before this Court cannot
be regarded as a special or exceptional
circumstance justifying the entertainment of this
revision application by this Court. Exercise of
revisional powers is not a matter of course but it is
a matter of rare and sparing use. Hence, as
pointed out above when two fora are available
to the petitioner for getting redressal of the alleged
wrong, then it will certainly be more appropriate
for him to first approach the lower forum. It is
certainly within the discretion of the higher forum,
that is, this Court to consider whether it should
entertain or not of such a revision application
which can lie before the Sessions Judge. In this
respect I am in full agreement with the opinion
expressed by my learned brother R.M. Lodha, J.,
in the case of Tejram v. Sunanda and I am of
the opinion that this Court should not entertain
this revision application which can be entertained
and decided by the Sessions Judge, Panaji. No
question of causing inconvenience or prejudice to
the petitioner arises, if the Sessions Judge, in
6
exercise of his revision powers, deals with the
application.”
9. In the above case, the judgment of Madhavlal v.
Chandrashekhar, reported in 1976 CRI. L.J. 1604
was also discussed and it was held that there were
special and exceptional circumstances in the way
justifying filing revision petition directly to the High
Court.
10. In the case of Padmanabh Keshav Kamat
(supra), the observations of the learned Single Judge
(Hon’ble Mr. Justice R.M. Lodha) as he then was in
Bombay High Court in the case of Tejram
Mahadeorao Gaikwad v. Smt. Sunanda Tejram
Gaikwad, reported in 1996 Cri. L.J. 172, were also
quoted as under:
“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. Since the
applicant has come directly to the High Court,
though he could have filed the revision before the
Sessions Judge and there are no exceptional
reasons, the revision application deserves to be
dismissed on this count alone. This Court does not
encourage filing of revision application under
Section 397 of the Code of Criminal Procedure
directly before this Court it could be challenged in
revision before the Sessions Court having
jurisdiction of revision over the matter.”
11. In the case of Central Bureau of Investigation v.
State of Gujarat (supra) on which much reliance has
been placed by the learned counsel for the petitioners,
learned CJM passed the order directing the CBI to
investigate the matter on 29.09.1999. The CBI moved
an application for recalling the order, but that
application was rejected on 26.10.1999. Then, the CBI
directly filed the application to the High Court against
both the orders which were dismissed on the ground of
bypassing Sessions Court, though the petitioner was
directed to move before the learned Sessions Judge as
7
directed by the High Court and by order dated
17.05.2007, the orders passed by learned CJM were
set-aside and the CBI was directed to investigate the
case with special cost and criticism, against which,
Special Appeal was filed before the Hon’ble Supreme
Court by the CBI, which was allowed by quashing the
order of the High Court with the following observations:
“Of course, where it is shown that the
investigating agency is not doing proper
investigation and/or that there is reason to believe
that there is laxity in the investigation, a direction
may be given to the CBI to investigate the matter
in appropriate cases. This case is not one where
any complexity was involved. It was a routine
case of theft of Muddamal property. The learned
Sessions Judge, therefore, rightly appears to have
set aside the orders passed by the learned Chief
Judicial Magistrate. The High Court had no basis
to doubt the bonafides of the CBI in moving the
application before it under Section 397 Cr.P.C.
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.”
12. In view of the above observations, it is clear that
there is of-course no bar for filing revision directly to the
High Court under Section 397 of the Code read with
Section 401 of the Code, corresponding to the Section
438 read with Section 442 of the BNSS against the
order of the learned Magistrate, but 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. ”
6. The distinction has to be made between the issue as to
the maintainability and entertainability as far as the
maintainability is concerned. There cannot be any doubt
that the revision petition is maintainable before the High
court. However, the issue is that if there are concurrent
8jurisdiction with Sessions Court and the High Court, the
aggrieved person should first approach the court of primary
jurisdiction or should ordinarily invoke the jurisdiction of
the High Court at the first instance. Even at the cost of
repetition, it may be stated that there could also be cases of
grave, serious or urgent in nature where the intervention of
the High Court may be necessary, at the outset, however,
there is no such plea of gravity, seriousness reflected in the
present case(s).
7. This Court is of the firm view that even if the
concurrent jurisdiction is available, it is a matter of
propriety and judicial discipline that the petitioner must
approach the first forum and invoke the jurisdiction of the
High Court only in rare and special circumstances. This will
not only benefit the litigant by having another remedy
available, as per law, but it will also help in de-clogging the
High Courts. The High Court has always plenary powers
even other than revisional jurisdiction, to correct the wrong.
This aspect has also to be seen from another perception
particularly in a big state like West Bengal. It will be very
difficult from the far flung areas to approach to the High
Court and relatively it would be convenient both physically
and economically to first invoke the jurisdiction of the
learned Sessions Court to redress their grievances against
the order passed by the Learned Judicial Magistrate.
8. In view of the discussions made hereinabove, this
9Court is of the considered view that though there exist
concurrent jurisdiction, however, as a matter of propriety
and judicial discipline, ordinarily the order of learned
Judicial Magistrate should first be challenged by way of
revision before the learned Sessions Court, instead of
directly invoking the jurisdiction of this Court except in the
exceptional and grave circumstances. However, this shall
not curtail the power of the High Court to entertain revision
petitions in exceptional cases. It is pertinent to mention
that no such grave or exceptional circumstances exist in
the present case, nor the same has been pleaded or
canvassed before this Court.
9. In view of the above discussions, the petitioner may
file a fresh revision petition before the learned Sessions
Judge. In the event of the revision petition is file within four
weeks of this order, the period taken during this revision
petition will not come in the way for the purpose of
limitation. It is also to be made clear that all the
contentions shall remain open and shall be agitated and
decided by the learned Sessions Judge expeditiously in
accordance with law, without being influenced by the
orders of this Court. In case, if any interim order has been
granted in favour of the petitioner, the same shall continue
till four weeks of the filling of the revision petition before
the learned Session Court. In such cases, if the revision
petition is not filed within the four weeks of the date of
10receipt of certified copy the interim order shall stand
vacated automatically. The certified copies be returned to
the petitioner(s) as per rules.
10. The Revision Petition(s) and all pending applications
stand disposed of.
(Dinesh Kumar Sharma, J.)
