5.At the same time, I cannot now hold that the revision is maintainable before the learned Sessions Judge because the petitioner has got right of appeal. Now the further question which arises for consideration is that on this ground whether this petition should be dismissed thereby confirming the order of the learned Sessions Judge. In this regard, I may refer to sub section 5 of Section 401 Cr.P.C., which reads as follows: “Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” Thus, it is crystal clear that if a revision has been made under a mistaken impression that no appeal lies, the High Court has got power to convert and treat the same as appeal. Sub section 5 of Section 401 Cr.P.C. is applicable to the Court of Sessions also, as per sub section 2 of Section 399 Cr.P.C., which reads as follows: “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 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”. Therefore, the only course now available for this Court is to set aside the order of the learned Sessions Judge with a further direction to the learned Sessions Judge to convert the revision as an appeal under Section 372 of Code of Criminal Procedure and dispose of the same, after affording sufficient opportunity to the respondents herein. This alone would meet the ends of justice.
