IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1058 of 2008 Date of decision : October 26, 2009 Harnarayan and others ....Petitioners versus State of Haryana and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. JP Sharma, Advocate, for the petitioners Mr. Sidharth Sarup, AAG Haryana for respondent no. 1 None for respondent no. 2 L.N. Mittal, J. (Oral) Rambir respondent no. 3 was challaned by the police in FIR No. 77 dated 16.5.2005 under sections 498-A, 323, 506 IPC, Police Station Nangal Chaudhary, District Mahendergarh, whereas petitioners Harnarayan, Kela and Laxmi were found innocent by the police. Prosecution application filed under section 319 of the Code of Criminal Procedure (in short, Cr.P.C.) was dismissed by learned trial Magistrate vide order dated 5.7.2007, Annexure P/2. Dimple complainant-respondent no. 2 filed revision petition against the said order. The said revision petition has been allowed by learned Additional Sessions, Narnaul vide impugned judgment dated 7.5.2008 (Annexure P/1). Feeling aggrieved, Harnarayan etc. have filed the instant revision petition. Criminal Revision No. 1058 of 2008 -2- None appeared for respondent no. 2 complainant inspite of service. However, keeping in view the nature of case, vide order dated 19.3.2009, fresh Dasti notice was ordered to be issued to respondent no. 2. Said Dasti notice has been received back with report of refusal. None has put in appearance for respondent no. 2. I have heard learned counsel for the petitioners and State counsel for respondent no. 1 and perused the case file. Learned counsel for the petitioners vehemently contended that the learned Additional Sessions Judge passed the impugned judgment Annexure P/1 without granting opportunity of hearing to the petitioners as is required by mandatory provision of section 401(2) read with section 399 (2) Cr.P.C. because the impugned judgment is an order adverse to the petitioners herein. Learned counsel for the petitioners accordingly contended that the impugned judgment is illegal and unsustainable. In support of this contention, reliance has been placed on judgment of this Court in Sant Singh and Anr. Vs Gurmel Singh, 1986(2) C.L.R. 635. Learned State counsel has not been able to advance any meaningful argument to controvert the aforesaid contention of learned counsel for the petitioners. I have carefully considered the contention advanced by learned counsel for the petitioners. Section 401(2) Cr.P.C. which is also applicable to the revision before Sessions Court by virtue of section 399(2) Cr.P.C., mandates that no order under this provision shall be made to the prejudice of the accused or other person unless he has had an opportunity of Criminal Revision No. 1058 of 2008 -3- being heard. In the present case, however, the petitioners were not made party to the revision petition filed before the Sessions Court and therefore, petitioners were not granted any opportunity of hearing by learned Additional Sessions Judge before passing the impugned judgment. In the case of Sant Singh (supra) also, the Magistrate after recording preliminary evidence had dismissed the complaint against which revision was filed by the complainant before the Sessions Judge. The said revision petition was disposed of by setting aside the order of the trial Magistrate without issuing notice to the accused. It was held that order of Sessions Judge was unsustainable and was accordingly set aside and the matter was remanded to the Sessions Court. Similar is the position in the instant case. In view of the aforesaid, it is apparent that the impugned judgment Annexure P/1 passed by learned Additional Sessions Judge, Narnaul is illegal and unsustainable because the same was passed without affording opportunity of hearing to the petitioners who have been adversely effected by the said judgment. Consequently, the instant revision petition is allowed and impugned judgment dated 7.5.2008 of learned Additional Sessions Judge, Narnaul, Annexure P/1, is set aside and the case is remanded to the Additional Sessions Judge, Narnaul for fresh disposal of the revision petition filed by respondent no. 2, in accordance with law. ( L.N. Mittal ) October 26, 2009 Judge 'dalbir'