Dina Nath vs Bithal Nath and Others

S.J. Hyder, J.—Respondents 1 to 5 were prosecuted for the offences punishable under Sections 147, 148, 405, 506, 323, 324 and Sections 394 and 395 IPC. The Judicial Magistrate Sadar, Mathura by his judgment and order dated 4-9-1975 found the said Respondents guilty of different offences and awarded them punishment on each count. Respondents preferred an appeal which was allowed by the second Additional Sessions Judge, Mathura by his judgment and order dated September 13, 1975. He recorded an order of acquittal in favour of all the Respondents.

The case out of which this appeal arises had been instituted on a private complaint filed by Sri Dinanath who is the Appellant before this Court. Notices of the appeal were issued to the Respondents and they have been found to be sufficiently served. No one has, however, appeared on their behalf to contest this appeal.

It appears from the record that the complainant was not impleaded as a party to the appeal before the Sessions Judge, neither any notice of the appeal was issued by the Sessions Judge to the complainant and the appeal was heard behind his back. The only grievance made on behalf of the complainant (who is Appellant before me) is that the provisions of law contained in Section 385(1) Code of Criminal Procedure 1974 are mandatory and non-compliance of the provisions of the said section would make the judgment of the Court of Sessions quorum non judicie.

Section 385(1) of the Code of Criminal Procedure 1974 in so far as it relates may now be quoted: --

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A bare reading of the aforesaid provision of law lends support to the contention advanced on behalf of the Appellant. Although u/s 385(1)(iii) of the Code of Criminal Procedure it is not necessary to make the complainant a party to an appeal it is nevertheless incumbent upon the court seized of the appeal to issue notice to the complainant in such a case. The said provision enacted in the Code of Criminal Procedure is a new requirement which did not find place in the Code of Criminal Procedure 1898. The object of making it necessary to send notice of the appeal to the complainant, in a case where the case had been initiated on the basis of a private complaint, is that the party against whom an adverse judgment is likely to be passed should be given an opportunity to be heard. In other words the said provision of law gives effect to the well established doctrine of audi alteram partem. In my opinion the said provision lays down a salutary rule of law and is mandatory in its character. Non-compliance with the provisions of Section 385(1)(iii) of the Code of Criminal Procedure is fatal to the validity of the order passed in appeal by the Sessions Judge.

The result is that the order of the Sessions Judge dated 13-9-1975 in Criminal Appeal No. 99 of 1975 Bithalnath and Ors. v. State of U. P.is hereby set aside. The case is remanded to the Court of Sessions for a fresh decision in the light of the observation made in this judgment and in accordance with law.