Sagar and Others vs State of Uttar Pradesh

M. Wahajuddin, J.—The applicants have come forward with a prayer that the entire proceedings in Criminal Case No. 721/49 of 1978, State v. Sagar and Ors Criminal Case No. 721/49 of 1978. as well as the final order of the Sub-Divisional Magistrate, Chakia, district Varanasi, dated 26-6-1980 and of the revisional court dated 22-9-80 and 30-10-80 be all quashed.

It would appear that direction for removal of obstruction was given by the Magistrate recording findings against the applicants. The applicants against such final order of the Magistrate preferred a revision registered as Criminal Revision No. 178 of 1980 in the sessions court. The Sessions Judge, Varanasi, vide its order dated 22-9-80 observed that inspite of information neither the revisionist, nor any one representing him is present. He thereafter observed that the revision is dismissed in default of the appearance of the revisionist. Thereafter an application was made that the revision may be restored. That application was rightly rejected, as under the Code of Criminal Procedure there is no power to review any order or to set aside any final order disposing of the case, i.e. the revision in the present case.

It is, however, urged that the revision could not have been dismissed in default of appearance. That is the first and preliminary point that has been urged. I have considered the matter. Once the revision was admitted and registered, it became the duty of the revisional court to scrutinise the record and give a finding on merits on perusal of the record. It is noteworthy that the powers to entertain and hear the revision have been conferred upon the Sessions Judge by Section 397, Code of Criminal Procedure and as provided therein the court is called upon to satisfy itself regarding legality or propriety of any finding or order and as to the regularity of any proceeding before any inferior court. The order in question was not an interlocutory order. It was final order against which revision lay. The Sessions Judge for the compliance of the provisions contained in Section 397, Code of Criminal Procedure should have examined the records and should have satisfied himself on the aforesaid points as mentioned in Section 397 Code of Criminal Procedure. It is not that he summarily rejected the revision. The revision was admitted and registered.

It is noteworthy that u/s 399(1) Code of Criminal Procedure the Sessions Judge has been empowered to exercise the same powers as can be exercised by the High Court u/s 401 Code of Criminal Procedure. Under the latter section the High Court is empowered to exercise any of the powers conferred on a court of appeal. Under Sections 386, 389 to 391 Code of Criminal Procedure the powers are very wide and vast. Section 386 Code of Criminal Procedure provides under Clauses (d) and (e) that the order of the inferior court can be altered, reversed or amended or consequential and incidental order can be passed. When that is the position, it is manifest that a criminal revision once admitted cannot be rejected in default, but has to be decided on merits irrespective of the matter of presence and absence of the revisionist. In the case of Mina Ram and Others Vs. Jivlu Budhu, and S.N. Sharma and Others Vs. The State, similar view has been taken by Himachal Pradesh and Andhra Pradesh High Courts. Once I hold that the revision has to be decided on merits, naturally other matters are not to be gone into.

In the result, the application is allowed to the exent that the order dated 22-9-80 of the v. Additional Sessions Judge, Varanasi (Annexure III), dismissing the revision in default is set aside and it is directed that the criminal revision No. 178 of 1980 be disposed of on merits after giving notice of the date to the parties involved.