IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 517 of 2008 George Renato Bader. …..…..Applicant. Versus State of Uttarakhand and others. …….. ….Respondents. AND Criminal Misc. Application No. 521 of 2008 George Renato Bader. …..…..Applicant. Versus State of Uttarakhand and others. …….. ….Respondents. Hon’ble Alok Singh, J. Ms. Prabha Noliyal, learned counsel for the petitioner / applicant. Mr. Nandan Arya, learned AGA for the State of Uttarakhand. Mr. Umesh Arora learned counsel for the respondents no. 2 and 3. These two petitions arising out of one and common judgment dated 11.10.2007 passed by learned Sessions Judge, Tehri Garhwal, in criminal revision no. 36 of 2007. 2 With the consent of both the parties, I proceed to decide both the petitions by this common judgment. Present petitioner filed one complaint no. 1241 of 2003 before the Trial Court. Trial Court vide order dated 18.11.2003 summoned the accused under sections 420, 467, 468, 471, 506 IPC. It seems complainant / present petitioner also filed two First Information Reports in P.S. – Munni ki Reti on 30.10.2004, which were registered as case crime no. 844 of 2004 and case crime no. 845 of 2004. After investigation police filed chargesheet in the both the case crime nos. 844 of 2004 and 845 of 2004 under sections 420, 467, 468, 471 IPC. Vide order dated 16.10.2006 exercising the power under section 210 Code of Criminal of Procedure, learned Trial Court merged proceedings of complaint case no. 1241 of 2003 in criminal case no. 2121 of 2005 and criminal case no. 2122 of 2005. Learned Magistrate vide order dated 06.08.2007 refused to discharge the accused and proceeded to frame charges against the accused respondents herein. Feeling aggrieved from the order of the Trial court dated 06.08.2007 refusing to discharge accused / respondents preferred revision no. 36 of 2007 in the Court of Sessions Judge, Tehri Garhwal. In the revision before the learned Sessions Judge complainant / petitioner herein was not impleaded as one of the respondents. Ms. Prabha Noliyal, learned counsel for the petitioner stated that revisional court decided the revision without hearing the present petitioner, who was necessary party in view of section 399 (2) read with section 401 (2) of 3 Code of Criminal of Procedure. According to Ms. Prabha Noliyal, on this account only impugned judgment is liable to be set side and matter must be remanded back to decide the revision afresh after hearing both the parties. Sections 399 and 401 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 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.” 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. 4 (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.” From perusal of sub-section (2) of section 399 of Code of Criminal of Procedure it is clear that Sessions Judge while exercising the revisional jurisdiction, has to follow the procedure given in sub section (2) of section 401 of Code of Criminal of Procedure. Section 401 (2) provides that no order shall be passed to the prejudice of the accused or other person unless he is given opportunity of being heard. Since Revisional Court passed order which is prejudicial of the present petitioner without hearing him, hence, impugned order cannot be sustained in the eyes of law. Present petitions are allowed. Impugned judgment / order dated 11.10.2007 passed by Sessions Judge, Tehri Garhwal, in criminal revision nos. 35 & 36 of 2007 is set aside. Matter is remanded back to the Sessions Judge, Tehri Garhwal with a direction to decide the criminal revision nos. 35 & 36 of 2007 afresh after impleading the petitioner as one of the respondent and after hearing both 5 the parties. Learned Sessions Judge is also directed to decide the revision as expeditiously as possible. (Alok Singh, J.) 10.12.2009 SKS