CRIMINAL REVISION No.258 of 2002 With CRIMINAL REVISION No.443 of 2002 ------- Against the judgment dated 04-01-2002 passed by The 5th Additional Sessions Judge, Samastipur in Criminal Appeal No.11 of 1997. In Cr.Rev.No.258 of 2002 JOGI RAI @ JOGENDRA YADAV,son of Subai Rai,resident of village-Belsandi Dih, P.S.- Bibhutipur within the district of Samastipur. .. .. .. Petitioner Versus THE STATE OF BIHAR .. Opp.Party ……………… For the Petitioner : N o n e For the State : Mr. Ali Mozaffar,A.P.P. In Cr.Rev. No.443 of 2002 KUSHESHWAR RAI @ KUSHESHWAR YADAV,son of late Ram Swaroop Yadav,resident of village-Kodariya Tola (Sirari),P.S.-Bibhutipur within the district of Samastipur. .. .. Petitioner Versus THE STATE OF BIHAR .. Opp.Party ………………… For the Petitioner : N o n e For the State : Mr. Jharkhandi Upadhyay, A.P.P. P R E S E N T THE HON'BLE MR.JUSTICE MANDHATA SINGH Mandhata Singh,J.:- As both these revision applications arise out of the same criminal appeal number, they are heard together and are being disposed of by this common judgment. Both these revision applications are directed against the judgment dated 04-01-2002 passed by the 5th Additional Sessions Judge, 2 Samastipur in Criminal Appeal No.11 of 1997, by which he has dismissed the appeal upholding the judgment and order dated 25-01-1997 passed by the Assistant Sessions Judge, Rosera in Sessions Trial No.87 of 1985, by which he had convicted the petitioners and awarded them sentence to undergo rigorous imprisonment for five years under Section 395 of the Indian Penal Code. Though none appeared to press the grounds but after going through the record it appears that much stress has been given on the point of no opportunity given to the petitioners to point out the infirmities/mistakes committed by the trial court. Merit has also been challenged by pointing out that three of the prosecution witnesses of 20 came forward to support the prosecution case and they were P.W.5, P.W.4 and P.W.6. For P.Ws.1, 2, 3. 9. 10., 16, 17, and 20 it is said that they all are formal witnesses while for P.Ws.13, 14 and 15 it is said that they are declared hostile. On the other point it is said that Investigating Officer, Doctor and Magistrate who conducted the test identification parade were not produced for their examination. Examination of doctor is said to be necessary because of hurling 3 of bomb during commitment of dacoity injured informant’s father. For informant P.W.5 it is said that in the FIR he had named none of the accused persons. P.W.4 is said to be a relative of the informant while P.W.6 is informant’s father. After going through the judgment also it appears that this aspect has not been taken into consideration by the appellate court. They should be answered satisfactorily. Once an appeal is fixed for hearing after its admission in knowledge of the parties, judgment can be passed by the appellate court in absence of the parties even that mean to say consideration of all the materials appeared in the case and points raised in appeal which appears lacking in the case. Moreover, an explanation has been given that Criminal Appeal No.11/1997 was posted for hearing on 04.1.2002 and the counsel was ready to argue the case but argument started in Criminal Appeal No.72/1991. Later the learned counsel learnt that appeal was dismissed without hearing. So, it is in the interest of justice to give an opportunity to the petitioners to place their case/objections, points raised in appeal before the appellate court, for that the case is 4 remanded to the appellate court (5th Additional Sessions Judge, Samastipur) after allowing the revision applications setting aside the judgment dated 04-01-2002 passed by the 5th Additional Sessions Judge, Samastipur in Cr.Appeal No.11/1997 to decide the matter afresh after hearing the petitioners/parties if they appear and state. Accordingly, both the revision applications are allowed. ( Mandhata Singh, J.) Patna High Court, Patna Dated the 10th of December, 2009 A.H. /A.F.R.