JUDGMENT N. Chaudhury, J. 1. Heard Mr. A. Ahmed, learned counsel who argued the case on behalf of petitioner, on being instructed by Mr. H.R.A. Choudhury, learned Senior Counsel. This is an application under section 401 read with section 482 of the Code of Criminal procedure challenging the judgment and order dated 6.4.2004 passed by the learned Sessions Judge, Hailakandi, in Criminal Motion No. 37 of 2002 allowing the criminal revision and setting aside the judgment and order of acquittal passed by the learned Judicial Magistrate, First Class, Hailakandi on 23.05.2002 in C.R. Case No. 909/1997. 2. It appears from order sheet that service on the respondent No. 1 of this case was accepted vide endorsement dated 28.04.2005. However, no one has put up appearance on behalf of the said respondent. Mr. B. B. Gogoi, learned Addl. Public Prosecutor, Assam, appears on behalf of the opposite party No. 2. As the matter has been in the hearing list for quite a long time the matter is taken up for hearing. 3. Before deciding this Criminal Revision, it is necessary to narrate the brief facts. The opposite party No. 1 as complainant filed a complaint before the learned Chief Judicial Magistrate, Hailakandi, vide Criminal Case No. 909 of 1997 under Sections 448/ 427/ 352/ 149 IPC against the present petitioners as accused persons. By the said complaint it was alleged that on 10.9.1997 the 4 petitioners of this case being armed with the deadly weapons and by forming unlawful assembly trespassed into the paddy land of the complainant, destroyed the earthen boundary mark (known as AIL in local dialect) and grabbed some land of the complainant by amalgamating the same with their land situated at the adjacent plot and thereby caused loss to the complainant. On being transferred to the Court of learned Judicial Magistrate, First Class, cognizance was taken under the Sections 448/ 427/ 352/ 149 IPC and the accused persons were summoned to appear. On appearance of the petitioners, offences were explained to them to which they pleaded not guilty and claimed to be tried. Complainant side examined as many as 4 (four) witnesses including himself, while defence examined none. In course of trial the complainant died and his brother Faizur Rahman Choudhury filed an application before the learned trial Magistrate, praying for leave to continue the complaint as the original complainant. Complainant side examined as many as 4 (four) witnesses including himself, while defence examined none. In course of trial the complainant died and his brother Faizur Rahman Choudhury filed an application before the learned trial Magistrate, praying for leave to continue the complaint as the original complainant. Although there is no specific order granting leave yet the said prayer appears to have been impliedly granted inasmuch as the trial continued at the instance of the brother of the original complainant. 4. Be that as it may, on perusal of the materials available on record, the learned trial Magistrate, Hailakandi, acquitted the accused persons by his judgment and order dated 23.05.2002. The learned trial Magistrate discussed the evidence on records in detail but did not believe the version of the witnesses. The learned trial magistrate held that since admittedly there are only 4 accused persons the charge of forming unlawful assembly is not sustainable. Aggrieved by the judgment of acquittal, the substituted complainant approached the learned Sessions Judge, Hailakandi, by Criminal Motion No. 37 of 2002 under Section 397 read with Section 401 of the Cr.P.C. 5. The learned Sessions Judge after hearing the parties and on perusal of the materials on records passed judgment and order on 06.04.2004 allowing the Criminal Revision Petition and directing the learned trial Court, Hailakandi, to decide the case afresh after issuing summons to the accused persons. The said judgment and order has been brought under challenge before this Court by way of present revision. 6. It is clear from above that the learned trial Court having acquitted the accused persons by judgment and order dated 23.05.2002 in a complaint case, it was open for the complainant to prefer appeal before this court under Section 378(4) of the Cr.P.C. after obtaining necessary leave of this court. Although an appeal lies against the judgment of acquittal passed by the trial magistrate in a complaint the case, the complainant chose not to prefer any appeal and rather filed a Revision Petition before the learned Sessions Judge. The power of revision has been vested in the Court of Sessions under Section 399 of the Cr.P.C. Section 399(2) of the Cr.P.C., provides that the provisions of sub-sections (2), (3), (4) and (5) of Section 401 apply to a proceeding under Section 399 before the learned Sessions Judge as far as practicable. The power of revision has been vested in the Court of Sessions under Section 399 of the Cr.P.C. Section 399(2) of the Cr.P.C., provides that the provisions of sub-sections (2), (3), (4) and (5) of Section 401 apply to a proceeding under Section 399 before the learned Sessions Judge as far as practicable. Since Section 401 clause (4) Cr.P.C. applies to a revision, pending before the learned Sessions Judge under Section 399 Cr.P.C., the Criminal revision filed before the learned Sessions Judge was not maintainable and as such the learned Sessions Judge committed jurisdictional error in entertaining the revision petition and thereafter, in allowing the same. 7. Section 399(2) and Section 401(4) Cr.P.C. are cited below: Section 399(2): (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Section 401(4): (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be enteretained at the instance of the party who could have appealed. 8. After hearing the learned counsel for the parties and on perusal of the materials available on record as well as the aforesaid provisions of law, it is liable to be held that the learned Sessions Judge had no jurisdiction to entertain the revision and as such the impugned judgment order dated 6.4.2004 passed by him in the said revision is liable to be set aside and quashed. Accordingly, the impugned judgment and order dated 06.04.2004 is set aside and quashed and consequently the order dated 23.05.2002 passed by the learned Judicial Magistrate First Class, Hailakandi, is upheld. The Criminal Revision Petition is allowed. However, no order as to costs. Petition allowed