Akil Abdul Hamid Kureshi, J.

1. Petitioners have challenged the order dated 31.03.2011, passed by the Sessions Court, Anand, in Criminal Revision Application No. 32 of 2010. Brief facts are as under.

2. At the relevant time, the petitioner No. 1 was the Police Sub-Inspector. Petitioners No. 2 and 3 were the constables, all serving at Bhadran police station. The respondent No. 2 herein had filed a private complaint before the Magistrate in the year 1995, alleging custodial violence against the petitioners. The Magistrate passed an order dated 04.11.1995 and dismissed the complaint. The private complainant thereupon filed a revision petition before the District Court. The District Court allowed such revision petition by an order dated 19.03.1997 and provided that the Magistrate shall proceed further under section 204 of the Criminal Procedure Code in accordance with law. Though the counsel for the petitioners would point out that this order was passed by the Sessions Court without hearing the petitioners, admittedly, this order was not challenged by the petitioners.

3. Pursuant to the said order of the Sessions Court, the learned Magistrate registered a Criminal Case No. 865 of 1997 against the petitioners and issued process against the accused. Once again, the complainant approached the Sessions Court by filing Criminal Revision Application No. 83 of 1997 contending that the case was a warrant triable case and therefore, the learned Magistrate committed an error in issuing process. In this revision petition also, the complainant had not joined the accused as respondents. This revision petition was disposed of by the Sessions Court by a judgment dated 28.10.1998 allowing the revision petition and the matter was sent back to the Magistrate with a direction to proceed in accordance with law under section 244 of the Criminal Procedure Code. This order also was never challenged by the petitioners.

4. In terms of the said order of the Sessions Court, the Magistrate framed charges against the petitioners under an order dated 04.07.2009 for offences punishable under sections 323, 504, 506(2) read with section 34 of Indian Penal Code. This order was challenged by the petitioners before the Sessions Court in Revision Petition No. 32 of 2010. In such revision petition, the petitioners had raised two main contentions. First contention was that the Sessions Court in the earlier round of litigations, had allowed the revision petitions of the complainant without hearing the accused. Second contention raised was that in any case, sanction as required under section 197(1) of the Criminal Procedure Code was not obtained.

5. The Sessions Court by the impugned judgment dated 31.03.2011, dismissed the revision petition. Decision of learned Single Judge of this Court in case of Prithi Paul Singh Sethi-Director of Ebyss Fiber 2 Fashion LT & Ors. v. Twist Spin Industry - Thro' Pramod Ramniklal Trivedi & Anr., reported in 2010 Cr.L.R. (Guj.) 795 was referred to. It was also noted that the revisional order was passed by the Sessions Court way back in the year 1998. Such order was never challenged by the petitioners. It was further observed that requirements of section 197 of the Criminal Procedure Code would not apply.

6. It is this order of the Sessions Court which the petitioner has challenged in the present petition. During the pendency of the petition, I am informed, petitioner No. 1 has expired. A copy of his death certificate is produced on record. Qua him therefore, the present petition and the criminal proceedings abate.

7. Having heard learned counsel for the parties and having perused documents on record, following aspects emerge.

I. It is undoubtedly true that earlier, twice the original complainant had approached the Sessions Court by filing revision petitions and such revision petitions were allowed by the Sessions Court. In neither of these revision petitions, the present petitioners were joined as respondents.

II. In case of Prithi Paul