1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.170 OF 2008 Jagganath Tulshiram Teli, Petitioners. V E R S U S The State of Maharashtra and others Respondents. Shri K.M.Nagarkar, Advocate for the petitioners. Smt. R.D. Reddy APP for the State R-1 Shri P.S. Shendurnikar, Advocate for the respondent No.2. CORAM : V .R. KINGAONKAR, J. DATE : 7TH AUGUST, 2009. PER COURT :- 1. Rule. Rule made returnable forthwith. Heard finally. 2. By this petition, the petitioners challenge the order rendered by the Learned Sessions Judge in Criminal Revision Application No.203/2005 whereby the said application came to be dismissed in default due to absence of the petitioners Advocate on date of hearing. 3. The contention of the petitioners is that, their Advocate was hospitalized and was unable, therefore, to attend the court proceedings on the scheduled date. The revision petition was dismissed on 15.02.2008 and after a couple of days their said Advocate Shri Sayyeduddin Shaikh died in the hospital. His absence was accidental and therefore the dismissal of revision application ought not to have been ordered. 4. The applicants are accused in private complaint case bearing RCC No. 50/1997 instituted by the respondent no.2 for offence under sections 468, 471 r.w. 34 2 of Indian Penal Code. They filed an application before learned Judicial Magistrate for recalling of the process. Their application was dismissed in view of Adalat Prasad V/s Bhutlal Jindal reported in (2004) 7 SCC 333. They preferred revision application against the said order as well as issuance of the process. The revision petition was scheduled for hearing on 15.02.2008 and since none appeared for the petitioners, revision application came to be dismissed in default. 5. Heard learned counsel for the parties. 6. At the outset, it is pertinent to note that, the revision application cannot be dismissed in default even though the Advocate of the revision applicants is found absent. The law does not permit such kind of dismissal in respect of the revision application. The revision application has to be decided on merits. The learned Sessions Judge may consider the material on record and decide the revision application without hearing learned Advocates for the parties in view of Section 403 of the Code of Criminal Procedure. Such mode is permissible if the Sessions Judge comes to the conclusion that revision application is not being attended by the concerned Advocate. Still, however, there is absolutely no provisions in the Criminal Procedure Code to permit dismissal of the revision application in default. It cannot be overlooked that the revisional jurisdiction is available under section 397 or 399 of the Code of Criminal Procedure in order to examine legality and propriety of the orders rendered by the learned Magistrate. The jurisdiction is of supervisory nature. In such case, the satisfaction of the revisional authority in the criteria for decision making and not the technical flaws like absence of the Advocate. This legal position is quite well settled. The learned Additional Sessions Judge did not consider such legal position while dismissing the revision application in default. 7. Whether the Advocate of the petitioners was suffering from illness and 3 was unable to attend the revisional Court is also not necessary to be looked into. Mr. Nagarkar, makes a statement that concerned Advocate was hospitalized and died on 17.02.2008. Under the circumstances, I find that impugned order of dismissal is quite contrary to the legal provisions and will have to be quashed. 8. In the result, the petition is allowed. Impugned order is quashed and revision application is directed to be restored to its original position. Learned Sessions Judge shall decide the same on its own merits. ( V. R. KINGAONKAR , J. ) ..... aaa/170.08