Judgment 1. This appeal is directed against the judgment of acquittal dated 30-8-1977 passed in Criminal Appeal No.787-A of 1976 by Shri S.M.M. Alam, Session Judge, Siwam Camp at Gopalganj setting aside the order of conviction and sentence passed by Shri P. Xaxa, Sub-divisional Judicial Magistrate, Gopalganj, dated 14-12-1976. In this appeal the point for consideration is as to whether it is permissible in law for the appellate court to dispose of a criminal appeal arising out of an order of conviction in a case instituted on the basis of a complaint without notice to the complainant by the appellate court and without hearing the complainant. In other words, the provisions laid down under sec. 385(1)(iii) of the Code of Criminal Procedure (hereinafter to be referred to as the Code) is under consideration. 2. The facts involved in this case are that the appellant had filed a complaint against the respondents and the respondents have been put on trial for the offences under sections 323, 147 and 379 of the Penal Code. They have been found guilty by the trial court and they had been sentenced differently. The respondents preferred an appeal which was registered as Criminal Appeal No.787-A of 1976 of the Court of the learned Session Judge, Siwan and Gopalganj. That appeal was heard on 19-8-1977 and the impugned judgment was delivered on 30-8-1977, setting aside the order of conviction and sentence passed against the respondents by the trial court and the respondents had been acquitted as the appeal had been allowed. 3. Learned counsel appearing on behalf of the appellant has submitted that it was necessary in law to give notice to the appellant, who happened to be the complainant and in absence of that legal obligation, the hearing of the appeal, in the facts and circumstances of the case, cannot be said to be legal and valid. 4. I find sufficient force in this contention. Sec.385 of the Code reads as follows : "(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) If the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant. (iv) if the appeal is under Sec.377 or Sec.378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties : Provided that if the apeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground." The provision laid down under Sec.385(1)(iii) of the Code is relevant for disposal of this appeal. It would appear from the reading of the section that notice to the relevant parties are mandatory and a legal obligation. In addition, disposal of appeal by effecitve hearing after perusal of the records is also a must in law. The relevant section, quoted above, has been incorporated in the Code of Criminal Procedure, 1973 (Act No.II of 1974). Such provision, so distinct and firm, had not been incorporated in the old Code of Criminal Procedure. In this view of the matter the provisions contained in Sec.385(i)(iii) of the Code has got special significance and the mandatory effect cannot be denied. 5 In the instant case it appears that the respondents, who were appellants in the appellate court below, had not even made the complainant a party. They being necessary party, it was desirable for the lower appellate court to term the memo of appeal defective at that stage even. It is expected that the appellate court in such circumstances will take care as to whether the complainant has been made a party in such an appeal and in absence of that the memo of appeal has to be termed not complete and defective. 6. In this case, while admitting the appeal on 22-12-1976, the learned Sessions Judge has simply passed an order regarding admission of the appeal and grant of bail but unfortunately he has passed no orders for notice to even the State, who had been made party in the memo of appeal. 6. In this case, while admitting the appeal on 22-12-1976, the learned Sessions Judge has simply passed an order regarding admission of the appeal and grant of bail but unfortunately he has passed no orders for notice to even the State, who had been made party in the memo of appeal. From perusal of the entire record it appears that the complainant had not been heard at all. If there would have been an order for issue of notice on the complainant and even then if the complainant would not have appeared, the matter would have been quite different and in that circumstance, if the appeal would have been disposed of after hearing the State as a respondent, as argued by the learned counsel for the respondents, that would have been a different matter, but in the facts and circumstances of the case there apepars to be complete non-application of mandatory provision of law incorporated in Sec.385(1)(iii) of the Code. 7. In the result, this appeal is allowed. The impugned judgment is hereby set aside. The case is remanded to the lower appellate Court for fresh hearing and disposal in accordance with the observations made above.