Cri. W.P. No.183 of 2002

1st July, 2002

Petitioner Counsel: Shri S.V. SIRPURKAR
Respondent Counsel: Shri AHIRKAR, Shri S.V. MANOHAR

JUDGMENT

JUDGMENT :- Rule made returnable forthwith and heard by consent.

2. This criminal Writ Petition is directed against the order dated 11-4-2002 passed by the learned Ad-hoc Additional Sessions Judge, Chandrapur rejecting the petitioner's application for allowing him to take part in the proceedings in the Criminal Revision No.71/00 filed by the respondent no.2.

3. The respondent no.2 Latari s/o Sakharam Ramteke had filed a complaint against the present petitioner and three others for the offences punishable under Sections 120-B, 420, 467, 468 & 471 read with Section 34 of Indian Penal Code bearing complaint Case No.25/00, which came to be dismissed under Section 203 of Cr.P. Code by the learned Chief Judicial Magistrate, Chandrapur on 25-5-2000.

4. Being aggrieved by the aforesaid order passed by the learned Chief Judicial Magistrate in Complaint case NO.25/2000, the respondent no.2 preferred a Revision before the learned Sessions Judge, Chandrapur bearing Criminal Revision No.71/00. During the pendency of the said Criminal Revision, the present petitioner had filed an application seeking permission to take part in the proceedings of the said Criminal Revision. By the order dated 11-4-2002, the learned Ad-hoc Additional Sessions Judge, Chandrapur rejected the said application, which is impugned in this petition.

5. Heard Shri S.V. Sirpurkar, the learned Counsel for the petitioner, Shri Ahirkar, the learned Additional Public Prosecutor for respondent No.1 and Shri S.V. Manohar, the learned Counsel for the respondent No.2.

6. It is submitted by Shri Sirpurkar, the learned Counsel for the petitioner, that Section 399 of the Criminal Procedure Code deals with the Sessions Judge's power of Revision whereas Section 401 of the Criminal Procedure Code deals with High Court's power of Revision. According to Shri Sirpurkar, as per the provisions of Section 401(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. It is further submitted by Shri Sirpurkar that under the new Code full revisional powers are now conferred on the Sessions Judge and the powers of the Sessions Judge and of the High Court are co-extensive and concurrent and since the petitioner being an accused in the complaint case lodged by the respondent no.2, the learned Ad-hoc Additional Sessions Judge ought to have permitted the petitioner to take part in the aforesaid proceedings and since the request of the petitioner in this regard has been rejected, the impugned order passed by the learned Ad-hoc Sessions Judge in this regard needs to be quashed and set aside.

7. Shri Ahirkar, the learned Additional Public Prosecutor as well as Shri S.V. Manohar, the learned Counsel for the respondent no.2 has not disputed the aforesaid legal position.

8. Section 401 of Criminal Procedure Code which deals with the High Court's power of Revision reads as under :-

S.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 other powers conferred on a Court of Appeal By sections 386, 389, 390 and 391 or on a Court of Sessions by section 307 and, when equally divided 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 authorise 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 proceedings 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."

Whereas Section 399 of Cr.P. Code which deals with Sessions Judge's power of revision reads as under :-

S.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.

A combined reading of both the aforesaid Sections clearly goes to show that under the new Code full revisional powers are now conferred on the Sessions Judge and the powers of the Sessions Judge and that of the High Court are co-extensive and concurrent.

9. Section 401(2) clearly provides that 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.

10. In the present case, admittedly, the petitioner was an accused in the complaint case filed by the respondent no.2 and, therefore, it was necessary for the learned Ad-hoc Sessions Judge to consider this aspect of the matter and allow the request made by the petitioner for permitting him to take part in the proceedings of Criminal Revision No.71/00. It appears that the learned Sessions Judge has lost sight of this important aspect of the matter and without considering the aforesaid provision, has rejected the application filed by the petitioner for permitting him to take part in the said proceedings and, therefore, the impugned order passed by the learned A-hoc Sessions Judge, in my opinion, cannot be sustained in law and it needs to be quashed and set aside.

11. In the result, the petition is allowed. The impugned order dated 11-4-2002 passed by the learned Ad-hoc Additional Session Judge, Chandrapur in Criminal Revision No.71/00 is hereby quashed and set aside. The petitioner's application seeking permission to take part in the proceedings of Criminal Revision No.71/00 is hereby allowed. Rule is made absolute in the aforesaid terms.

Petition allowed.