IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 406 of 2001 Old Number. Criminal Revision No. 885 of 1996 Diwan Singh and others. …..…..Revisionists. Versus State of U.P. and another. …….. ….Respondents. Hon’ble Alok Singh, J. Mr. Lokendra Dobhal, learned counsel for the revisionists. Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ respondent no. 1. Mr. A. Rab, holding brief of Mr. Vivek Shukla, learned counsel for the respondent no. 2. By way of present revision petitioners are assailing the order dated 24.05.1996 passed by learned Additional Sessions Judge, Dehradun in criminal revision no. 70 of 1995 (Mumtaj Vs. State of U.P.). Mr. Lokendra Dobhal, learned counsel for the revisionist argued that learned Magistrate has accepted the final report in favour of the present revisionist after rejecting the protest petition filed by the complainant / respondent no. 2 herein. He further submitted that revision no. 70 of 1995 was preferred before Sessions Judge, Dehradun by the complainant against the order 2 passed by the learned Magistrate rejecting the protest petition and accepting the final report. According to him, present revisionist were not impleaded as respondent in the revision and were not heard by the Revisional Court and without hearing them revision was allowed and order rejecting the protest petition was set aside and learned Magistrate was directed to decide the protest petition afresh. Mr. Nandan Arya as well as Mr. A. Rab fairly stated that present revisionist / accused were neither impleaded nor heard while deciding the revision. Mr. A. Rab further submitted that since the Revisional Court remanded the matter to the Magistrate now revisionist can be heard by the Trial Court. Hence, no prejudice is caused to the present revisionists / accused. Section 399 of the Code of Criminal of Procedure reads as under: “399. Sessions Judge's powers of revision : (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 sub-section (1) of Section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the 3 decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.” Section 401 of Code of Criminal of Procedure reads as under: “401. High Court's powers of revision:--(1) 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 386, 389, 390 and 391 or on a Court of Session by Section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided Section 392. (2) No order under this section 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 plead in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction. (4) Where under this Code 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. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and 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.” 4 From perusal of section 399 of Code of Criminal of Procedure it can safely be said that Sessions Judge while hearing the revision under section 397 of the Code of Criminal of Procedure, shall proceed in accordance with the provisions of sub sections (2), (3), (4) and (5) of Section 401 of the Code of Criminal of Procedure. From perusal of sub section (2) of section 401 of Code of Criminal of Procedure it is clear that no order shall be passed to the prejudice of the accused or other person unless he is heard personally or by pleader in his own defence. Admittedly, revisionists / accused were not heard by the Sessions Judge while passing the impugned order in revision. It is in violation of sections 399 (2) and 401 (2) of Code of Criminal of Procedure. In view of the above, I have no other option except to set aside the order passed by the Revisional Court dated 24.05.1996 and remand the matter to the learned Revisional Court, Dehradun with direction to decide the matter afresh after hearing both the parties. Present revision is allowed. Impugned judgment / order dated 24.05.1996 passed learned Additional Sessions Judge, Dehradun in criminal revision no. 70 of 1995 (Mumtaj Vs. State of U.P.) is hereby set aside. Learned Sessions Judge, Dehradun is directed to hear the accused / revisionist in terms of sections 399 (2) and 401 (2) of Code of Criminal of Procedure and to decide the matter on merit. Since revision is pertaining to the year 1995, I direct that both the parties shall appear before the learned Sessions Judge, Dehradun either personally or through counsel on 06.01.2010. On that date, learned Sessions 5 Judge shall fix the date on which revision shall be heard either by himself or by any other competent court. In any case, revision shall be decided within three months from today. Mr. Lokendra Dobhal, learned counsel for the revisionists shall convey this order to the revisionists. In case, either of the party does not appear either personally or through its counsel on the date fixed, in that event learned Sessions Judge would be at liberty to decide the matter. (Alok Singh, J.) 09.12.2009 SKS