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2006 DIGILAW 841 (RAJ)

Isa Khan v. State of Rajasthan

2006-03-10

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-By the instant criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973, (for short, “the Code” hereinafter), the petitioner have assailed the order dated 24.08.2004 passed by the Sessions Judge, Balotra (for short, “the Revisional Court” hereinafter) in Criminal Revision No. 22/2004, whereby the Revision Court allowed the revision filed by complainant/non-petitioner No. 2 Murid Khan against the order dated 26.06.2004 passed by the Additional Chief Judicial Magistrate, Balotra (for short, “the trial Court” hereinafter) in Negative Final Report No. 17/2003 arising out of the C.R. No. 41/2003, Police Station, Mandali. Aggrieved by the order impugned, the petitioner has filed the instant criminal revision. 2. I have heard learned Counsel for the parties and perused the order impugned. 3. By the order dated 26.04.2004, the trial Court dismissed the protest petition filed by Non-petitioner No. 2 and accepted the negative Final Report No. 17/2003 filed by the Police arising out of C.R. No. 41/2003, Police Station, Mandali. That order came to be challenged by the Non-petitioner No. 2 before the Revisional Court. The Revisional Court, vide impugned order dated 24.08.2004, while allowing the revision and setting aside the order of the trial Court dated 26.06.2004, directed the trial Court to take cognizance of the offences under Sections 498-A and 304-B, IPC against the petitioners. Hence, this criminal revision. 4. Learned Counsel for the petitioners submits that the Revisional Court fell in error in directing the trial Court to take cognizance of the aforesaid offences against the petitioners, which is beyond the scope of the Section 398 of the Code. It was further contended that the petitioners were not made party to the revision filed by the Non-petitioner No. 2, whereas the order of the trial Court was in favour of them. 5. It was further contended that the petitioners were not made party to the revision filed by the Non-petitioner No. 2, whereas the order of the trial Court was in favour of them. 5. Section 398 of the Code reads as under:-“Power to order inquiry.- On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any Subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged: Provided that no Court shall make any direction under this section for inquiry 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.” 6. The Court, in Ram Singh & Anr. vs. State of Rajasthan, 2003 WLC (Raj.) UC 563, held that in revision, the Court of Sessions cannot direct the trial Court to take cognizance, but only a direction to hold further inquiry can be given. The same view was reiterated by this Court in Lalita (Smt.) vs. State of Rajasthan & Anr., 2004 (2) RCrD 545 (Raj.) and in M/s. Micro Marbles (P) Ltd., Chittorgarh vs. State of Rajasthan & Anr. S.B. Criminal Revision Petition No. 720/2004 and other connected matters decided on 04.04.2005, etc. etc., and, therefore, in view of the specific provision of Section 398 of the Code and the view taken by this Court in the decisions referred above, the Revisional Court fell in error in directing the trial Court to take cognizance of the offences against the petitioners. Therefore, the impugned order is not sustainable. 7. So far as petitioners having not been heard by the Revisional Court is concerned, in the instant case, the Police filed a negative final report and on notice having been served on the complainant/non-petitioner No. 2, a protest petition was filed by him before the trial Court. Therefore, the impugned order is not sustainable. 7. So far as petitioners having not been heard by the Revisional Court is concerned, in the instant case, the Police filed a negative final report and on notice having been served on the complainant/non-petitioner No. 2, a protest petition was filed by him before the trial Court. The Non-petitioner No. 2 himself appeared and produced his witnesses before the trial Court, whose statements were recorded by the trial Court under Sections 200 and 202 of the Code and thereafter the trial Court came to the conclusion that no offence is made out against the petitioners from the evidence produced by the complainant/Non-petitioner No. 2 and accordingly the protest petition was dismissed and the negative final report was accepted. That order was challenged by the Non-petitioner No. 2 before the Revisional Court without impleading the petitioners. 8. Sub-section (2) of Section 399 of the Code provides that 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 the Code shall, so far as may be, apply to said proceeding and references in the said sub-sections to the High Court shall be construed as reference to the Sessions Judge. Sub-section (2) of Section 401 of the Code provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Thus, a bare reading of Sub-section (2) of the Section 401 of the Code makes it clear that while exercising revisional jurisdiction, no order should be made to the prejudice of the accused or other person. The expression "other person" in Sub-section (2) of Section 401 of the Code includes a complainant. Learned Counsel has placed reliance on a decision of this Court in Hazi Mohd. Shafi vs. State of Rajasthan & Anr., 2002 (1) RCrD 172 (Raj.), wherein this Court held that no order under Section 401 (2) of the Code shall be made to prejudice the accused or other person unless he has had an opportunity of being heard either personally or through Counsel in his own defence. The word “other person” includes the complainant. The word “other person” includes the complainant. Thus, without affording an opportunity of hearing to the complainant, the revisional Court committed apparent error in setting aside the order passed by the learned trial Court. 9. In Bodu Ram vs. State of Rajasthan, 2002 (1) CrLR (Raj.) 344, this Court held that the complainant having not been impleaded as a party in revision petition and the revision petition having been disposed of without notice and without affording an opportunity of hearing to him, the revision petition deserves to be accepted on this sole ground without going into the merits of the case. In that case, the complainant was the person who lodged the first information report, upon which the case was registered. Thereafter, on submission of the negative final report in the case, the cognizance was taken on his protest petition. The order taking cognizance was challenged before the Revisional Court without impleading the complainant as a party and the Revisional Court allowed the revision by setting aside the order issuing the process. That order came to be challenged before this Court and this Court set aside the order of the Revisional Court solely on the ground that the complainant has not been impleaded as a party and has not been afforded an opportunity of hearing. The facts of the instant case are almost identical to those of the case of Bodu Ram (Supra). 10. Learned Counsel for the non-petitioners has relied on a decision of the Honble Supreme Court in M/s. Indseam Services Ltd. vs. Bimal Kumar Kejriwal, AIR 2001 SC 3512 . In that case, the High Court directed that cognizance should have been taken by the Magistrate for the offences under Sections 420, 120-B, IPC. Thereafter, the Magistrate issued the process for the said offences. The order of the High Court was not found to be sustainable and set aside by the Honble Supreme Court. The Judgment relied on by the learned Counsel for the non-petitioners turns on its own facts. In the instant case, the facts are not identical to that case; on the contrary, there was no such direction by the Revisional Court to take cognizance. The Judgment relied on by the learned Counsel for the non-petitioners turns on its own facts. In the instant case, the facts are not identical to that case; on the contrary, there was no such direction by the Revisional Court to take cognizance. On the contrary, the only controversy involved in the instant case is whether the complainant was a necessary party to be heard in the revision, which has been concluded in favour of the complainant by this Court in the two decisions referred here-in-above and, thus the case of the petitioner is squarely covered by the two decisions of this Court referred here-in-above. 11. Consequently, the revision petition is allowed. The order impugned dated 24.08.2004 passed by the Sessions Judge, Balotra in Criminal Revision Petition No. 22/2004 is hereby set aside and the matter is remanded to the Revisional Court to pass a fresh order after affording an opportunity of hearing to both the parties. Learned Counsel for the parties agree that the parties shall appear before the Revisional Court on 03.04.2006 without any further notice. Let the parties, including the petitioners, appears before the Revisional Court on 03.04.2006.