V.N.Varma - (1.) THIS is an application by the complainant under Section 482 CrPC for re-calling my order dated 8-S-79 passed in Criminal Revision No. 1480 of 1977.
(2.) THE complainant (hereinafter referred to as the applicant) filed a complaint against opposite-parties under Section 379 IPC mentioning therein that he had raised Gehun and Lehsun crop in plots nos. 216 and 220 in village Sirsa and the opposite parties dishonestly and wrongfully cut the same and removed it to their house. THE opposite-parties denied the charge made against them. THE trial court held that the opposite parties had committed theft of the Gehun and Lehsun crop belonging to the applicant and it, therefore, convicted them under Section 379 IPC and sentenced them to three months' R. I. each and a fine of Rs. 150/-. Aggrieved they went up in appeal, but in vain. THEy then came up in revision (Criminal Revision No. 1480 of 1977) to (this Court, and at the time of hearing assailed the correctness of the orders passed by the courts below. I heard this revision on 8 -5-79 and allowed it. While allowing the revision I remarked that a bona fide dispute in regard to the ownership of plots nos. 216 and 220 had been going on between the parties and each side claimed to be in possession of these plots to the exclusion of the other. And it was in this background that the opposite-parties had cut the Gehun and Lehsun crop standing on plots nos. 216 and 220. My view was that as the opposite parties had cut the Gehun and Lehsun crop in assertion of a contested claim of right, they cannot be said to have committed theft of the same when they cut it and removed it to their house. The applicant has now filed the present! application for recalling my order dated 8-5-79 on the ground that no opportunity of being heard was given to him in revision and as such this order stood vitiated. It is true that no notice of the hearing of this revision was given to the applicant, but, in my opinion, it was not necessary tto do so under law. No provision in the Code of Criminal Procedure has been sliown to me under which a notice to the complainant is to be given in a revision arising out of a case instituted upon a complaint. In the case of an appeal such a provision exists. Section 385 CrPC says that if an appeal against conviction arising out of a case instituted upon complaint has been admitted for hearing, then a notice about it has to be given to the complainant. The provisian about giving notice of the hearing of an appeal of this kind is mandatory and cannot be waived. No such corresponding provision exists in regard to the hearing of a revision arising out of a case instituted upon a complaint. Had the legislature intended that in revisions also notice of hearing must be given to the complainant, it would certainly have made a provision like the one that it made in regard to the hearing of appeals. The fact that the legislature made no provision for giving notice of hearing to the complainant in a revision shows that it never intended that notice for its hearing should be given to him. The learned counsel for the applicant drew my attention to Section 401 sub-clause (2) CrPC, and on the basis of this provision urged that notice about the hearing of this revision must have been given to his client. Section 401 sub-clause (2) reads as follows :- "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.) THE learned counsel contended that the words "other person" used in the above sub-clause should include the complainant also, and, therefore, it was incumbent on the part of this Court to have given an opportunity to the applicant of being heard. 1 have given my anxious consideration to this submission of the learned counsel and my view is that the words "other person" should not include the complainant. THE ''other person" should be someone similarly placed like the accused. I say so because it is only an accused or a person placed like him, who can put up a 'defence. This 'defence' he can put up either personally or through a pleader. THEre can be no question of a complainant putting up a defence in a case started by him. The learned counsel for the applicant next relied on sub-clause (1) of Section 401 CrPC and contended that as the power of the High Court in hearing a revision is more or less analogous to its power in hearing an appeal, it was necessary that it should have given a notice of the hearing of the revision to the applicant in the same way as a notice is given to the complainant while hearing an appeal arising out of as case instituted upon a complaint. The power of the High Court in hearing a revision may be analogous to its power in hearing an appeal, but the procedure prescribed for hearing a revision is quite different from the procedure prescribed for hearing an appeal. The Code of Criminal Procedure has prescribed one procedure for hearing an appeal and another for hearing a revision., The procedure prescribed for one cannot be mixed up with the procedure prescribed for the other. In regard to the hearing of ajn appeal arising out of case instituted upon a complaint, sending of notice to the complainant is a must and, therefore, a notice has to go to him before the appeal can be heard. Such a provision does hot exist in regard to the hearing of a revision and, therefore, it is not at all necessary that a notice of hearing should be given to the complainant.;