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2004 DIGILAW 1029 (PAT)

Haridwar Singh @ Hardwar Singh v. State Of Bihar

2004-09-24

M.L.VISA

body2004
Judgment 1. Learned counsel appearing on behalf of petitioners appears but no body appears on behalf of opposite party No. 2 although vakalatnama on behalf of opposite party No. 2 has already been filed in response to notice which was issued to him. 2. Heard the learned counsel appearing on behalf of petitioners. 3. This application by petitioners has been filed for quashing the order dated 23.12.2003 passed by Sessions Judge, Gaya in Criminal Revision No. 92 of 2002 by which he has allowed the criminal revision application and set aside the order dated 5.7.2002 passed by the Chief Judicial Magistrate, Gaya in protest/complaint Case No. 1052 of 2000 relating to Bodh Gaya (Cherki) Police Station Case No. 65 of 1997 and directed the Court below to hold further enquiry and pass necessary order in accordance with law. 4. Brief facts of the case are that opposite party No. 2 filed a criminal case numbered as Bodh Gaya (Cherki) Police Station Case No. 65 of 1997 under Sections 147, 148, 149, 341, 307 and 379 of Indian Penal Code and Section 27 of Arms Act against the petitioners and one Ramashray Singh. During the investigation of the case. Opposite party No. 2 filed a protest petition also. The police after investigation submitted final form declaring the case as false and recommended action under Sections 182 and 211 of Indian Penal Code against opposite party No. 2 the protest petition filed by opposite party No. 2 was treated as complaint petition and opposite party No. 2 was examined on solemn affirmation and in the enquiry under Section 202 of Code of Criminal Procedure (in short "Cr PC") two witnesses of complainant were also examined and thereafter the learned Magistrate dismissed the protest/complaint petition by order dated 5.7.2002 against which opposite party No. 2 filed Criminal Revision No. 92 of 2002 without making the petitioners as parties and the learned Sessions Judge, Gaya without hearing the petitioners who have been made accused persons in the protest-cum-complaint petition (Annexure-1) has been pleased to direct the Court below to hold further enquiry in accordance with law. The petitioners have challenged this order of learned Sessions Judge, Gaya in this application. 5. The petitioners have challenged this order of learned Sessions Judge, Gaya in this application. 5. The learned Counsel appearing on behalf of petitioners submits that according to provisions of Section 398 of Cr PC this Court or the Sessions Judge may direct the Chief Judicial Magistrate to make further enquiry either by himself or by directing his Subordinate Magistrate into any complaint which has been dismissed under Section 203 of sub-section (4) of Section 204 of Cr PC. According to him the proviso to subsection 398 of Cr PC states that no Court shall make any direction under Section 398 of Cr PC for enquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. According to him when criminal revision application was preferred by opposite party No. 2 before Sessions Judge against an order of dismissal of complaint petition in which petitioners were arrayed as accused persons, they were not made parties and they were not heard by learned Sessions Judge who has been pleased to set aside the order passed by the learned Chief Judicial Magistrate dismissing the complaint petition of opposite party No. 2 and has been further pleased to direct to hold further enquiry. I find sufficient force in the argument advanced on behalf of petitioners because of the impugned order passed by learned Sessions Judge Under Section 398 of Cr PC has been passed without hearing the petitioners because they were not made parties as per their submissions in the aforesaid criminal revision application. 6. In the result, this application is allowed. The order dated 23.12.2003 passed by learned Sessions Judge in Criminal Revision No. 92 of 2002 is hereby set aside with a direction to learned Sessions Judge, Gaya that after hearing the parties he will pass fresh order according to law.