Heard learned counsel for the petitioners and learned AGA for the respondent State, Sri Anurag Shukla, learned counsel for respondent No.2.
Sri Madhulika Yadav, learned Advocate has today filed Vakalatnama in the Court on behalf of respondent. The same may be taken on record.
By means of present writ petition, the petitioner is challenging the order dated 20.02.2019 passed by learned Additional Sessions Judge, Faizabad in Criminal Revision No.53 of 2016; Smt. Rekha Yadav Vs. State of U.P. and another and impugned consequential order dated 08.08.2019 passed by Additional Chief Judicial Magistrate III, Faizabad in Complaint Case No.7811 of 2016.
Assailing the orders referred herein above, the only submission of learned counsel for the petitioner is that Sections 399(2) and Section 401(2) Cr.P.C. provide as under:
"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-section (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 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 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 interest 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."
In view of the above, the submission is that the petitioners were not served notice and in violation of the provisions contained under Section 401(2) the impugned orders have been passed.
Sri Anurag Shukla, learned counsel for the respondent No.2 tried to defend that notice was served upon the petitioner No.2-Suchita Tiwari, therefore, there is no violation of Section 401 (2) Cr.P.C. and thereafter, very fairly conceded on the point and submitted that in case the orders impugned are set aside and the matter is remanded back for reconsideration and to pass fresh order after giving opportunity of hearing to the parties, ends of justice would be met.
I have heard the submission advanced by learned counsel for the parties and perused the provisions contained under Section 399 (2) and 401 (2) Cr.P.C.
Upon examination of material on record, it is apparent that notice was not duly served upon the petitioners, therefore, they could not appear in person or through pleader.
In view of the above, the orders impugned are in utter disregard of the provisions referred herein above and are liable to be set aside.
Accordingly, the impugned orders dated 20.02.2019 and 08.08.2019 are hereby set aside.
The matter is remanded back to the Additional Sessions Judge, Faizabad for reconsideration of the matter, who shall pass a fresh order within a period of two months from the date of production of a certified copy of this order after affording opportunity of hearing to the concerned parties as well as to Sri Sandeep Tiwari- husband of petitioner No.2.
The petitioners and respondents have filed the present petition, therefore, there is no requirement for issuance of fresh notice to the petitioners. It is, however, made clear that one of the petitioner, who is not party to the petition is family member i.e. husband of petitioner No.2, therefore, there is no requirement to issue fresh notice to him.
Learned counsel for respondent No.2 is at liberty to move a formal application for impleadment of petitioners in the memo of revision.
With the aforesaid observation and direction, the petition succeeds and is allowed.
Order Date :- 19.12.2019 Adarsh K Singh