CRIMINAL MISCELLANEOUS No.29925 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- Nagina Khatoon, Wife of Md. Waish alias Awaish, resident of Village- Chanpura, Police Station-Benipatti, District-Madhubani --------------------- Petitioner Versus 1. The State Of Bihar 2. Md. Waish alias Awaish Son of Pachkauri 3. Shaida Wife of Panchkauri 4. Panchkauri, Son of Md. Jalil 5. Md. Taiyab, Son of Mushar Rain 6. Shakila Khatoon Wife of Md. Yunus 7. Md. Yunus Son of Suleman 8. Md. Suleman Son of Abdul All residents of Village- Chanpura, Police Station-Benipatti, District-Madhubani --------------- Opp.Parties. ---------- For the petitioner: None For Opp.Party nos.2 to 8: None For the State: Sri Ajay Mishra, A.P.P. ------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. When the case was called one, no one appeared on behalf of the petitioner either to press this petition or to make a prayer for adjournment. From the record, it appears that notices were earlier issued to Opp.Party nos. 2 to 8, however, they refused to accept the same. Accordingly, the service of notice was affected on Opp.Party nos.2 to 8. 2. In absence of either of the parties, I myself have perused the materials available on record. The sole petitioner has filed a complaint vide Complaint Case No. 317 of 1999 in the court of the learned Chief Judicial 2 Magistrate, Madhubani alleging therein that the petitioner was earlier married to one Md. Rais, who died in the year 1991 in election at a Booth. After death of her husband, a compensation of Rs.1, 20,000/- was given, which was deposited in favour of the minor daughter of the petitioner under the guardianship of her grand-father. Subsequent to death of her husband, with the consent of both the families, the petitioner/ complainant was re- married with younger brother of her husband, namely, Md. Waish in the year 1993. It was alleged that after marriage of the petitioner, the husband and other accused persons, who were members of the in-laws, started torturing the petitioner with a view to extract some dowry. It was also disclosed that accused persons were contemplating to kill her. Any how she rescued her life and left the house of her in-laws. The aforesaid complaint was registered as Complaint Case No.317C of 1999. After conducting an enquiry, by order dated 30.7.1999 the learned Magistrate took cognizance of offences under Sections 379, 498A and 494 of the Indian Penal Code and directed for issuance of summons against Opp.Party nos.2 to 8. 3. Aggrieved with the order of cognizance , Opp.Parties filed a revision vide Cr.Revision No.498 of 1999 and by order dated 7.9.1999 the learned Sessions Judge , Madhubani allowed the revision petition and set aside the order dated 30.7.1999 passed by the learned Judicial Magistrate, 1st Class, Madhubani in Complaint Case No.317 of 1999; T.R.No.784 of 1999. 4. Aggrieved with the order of the Revisional Court, i.e. order dated 7.9.1999, the petitioner approached this Court by filing the present petition. On 22.2.2000, this case was admitted for hearing and notice was directed to be issued to Opp.Party nos. 2 to 8. From the record it appears that 3 service of notice on Opp.Party nos. 2 to 8 was affected. Opp.Party nos.2 to 8 have not preferred to appear in the present case. 5. On perusal of materials available on record, particularly the ordersheet of the revisional court, which has been impugned in the present petition, it appears that the learned Sessions Judge, Madhubani has not even bothered to pass an order for issuance of notice to the petitioner, who was the complainant and was a necessary party. The learned Sessions Judge on 6.9.1999 heard learned counsel for the petitioners ( Opp.Party nos. 2 to 8 herein) and learned P.P. for the State and directed to put up on 7.9.1999 for orders and on 7.9.1999 the learned Sessions Judge allowed the revision petition and set aside the order of cognizance. Even from perusal of the impugned order, it appears that the learned revisional court has erroneously appreciated the evidence of witnesses as well as statement of the complainant and recorded a finding as if the learned Sessions was hearing an appeal. While hearing a criminal revision petition, it was mandatory on the part of the learned court below to give an opportunity to the other side and only thereafter he was required to proceed with the case. In the present case, there is nothing on the record to show that any step was taken by the learned Sessions Judge even for intimating the complainant in respect of the revision petition. It was in derogation of principles of natural justice. If the statute provides to do a thing in a particular manner, then the court is required to proceed in accordance with the said procedure. Under Sections 399 and 401 of the Code of Criminal Procedure, it is mandatory to give an opportunity to the other side while hearing a revision petition. It is appropriate at this juncture to quote Sections 399 and 401 of the Code of Criminal Procedure , 4 which are as follows: “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 by 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 pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of 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, 5 the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” 6. On bare perusal of the aforesaid provisions, it is clear that where a proceeding by way of revision is commenced before the learned Sessions Judge, the provisions of sub-sections( 2),( 3),( 4) and (5 )of Section 401 of the Code of Criminal Procedure shall be followed. Section 401 (2) prescribes that no order under this Section shall be made to the prejudice of the accused or other persons unless he has had an opportunity of being heard either personally or by pleader in his own defence. The record of the present case shows that no opportunity was given to the complainant, who is the petitioner before this Court for hearing and without affording any opportunity to the complainant, the learned Sessions Judge has proceeded with the revision petition filed by the accused persons and also allowed the same, which was prejudicial to the interest of the complainant/petitioner. Accordingly, on this ground alone, the order of the revisional court is liable to be set aside. 7. Accordingly, the order dated 7.9.1999 passed in Cr.Revision No.498 of 1999 by the learned Sessions Judge, Madhubani is hereby set aside and the matter is remitted back to the court of the learned Judicial Magistrate, 1st Class, Madhubani , where Complaint Case No.317 of 1999/ T.R. No.784 of 1999 was pending after order of cognizance. The learned Judicial Magistrate, 1st Class, Madhubani is directed to proceed with the case in accordance with law and while proceeding, he is required to intimate the complainant also. 8. With the above observation and direction, the petition stands allowed. 6 Office is directed to send a copy of this order and the lower court record, which was received earlier in the present case forthwith, to the court below. Patna High Court,Patna Dated : the 2nd August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )