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2009 DIGILAW 34 (RAJ)

Sushil Kumar v. State of Rajasthan

2009-01-07

MANAK MOHTA

body2009
JUDGMENT 1. - The present revision petition has been filed by the petitioner Sushil Kumar against the order of learned Addl. Sessions Judge No. 2, Jodhpur dated 21.07.08 passed in criminal Revision Petition No. 02/2008 by which the learned Sessions Judge reversed the order passed by the Judicial Magistrate No. 3, Jodhpur in F.R. No. 208/07 in FIR No. 491/07 dated 07.12.07 by which the learned Judicial Magistrate accepted the FR and rejected the protest petition. 2. The brief facts of the case are like that,-It is revealed from the record that non-petitioner No. 2 Sajjan Raj filed a complaint under section 467, 468 and 471 IPC against the present petitioner alleging therein that the petitioner filed a forged medical certificate in civil proceedings to get opportunity to produce evidence. It is further revealed that the said complaint was sent for investigation to the concerned police station and the police, after usual investigation, gave a negative final report. The complainant made a protest petition requesting the learned Judicial Magistrate to send the matter for further investigation. The learned Judicial Magistrate, vide order dated 07.12.07 accepted the FR and rejected the protest petition. Against that the complainant non-petitioner preferred a revision before the court of learned Sessions Judge, Jodhpur, who transferred the said revision petition to the learned Addl. Sessions Judge No. 2, Jodhpur. The learned Addl. Sessions Judge, after hearing the petitioner as well as the learned Public Prosecutor, set aside the order dated 07.12.07 passed by the learned Judicial Magistrate No. 3, Jodhpur and directed the Judicial Magistrate to send the matter to the police for further enquiry, vide impugned order dated 21.07.08. 3. Being aggrieved by the said order, the present revision petition has been filed. Notice of revision petition was issued, record of the case was called and arguments were heard. 4. During the course of arguments, learned counsel for the petitioner submitted that it is admitted position that the present petitioner was not made party to the revision petition filed by non-petitioner No. 2, before the learned Sessions Judge and the learned Sessions Judge also did not care to it and decided the revision exparte. Therefore, the petitioner could not place his contention at the time of arguments. Therefore, the petitioner could not place his contention at the time of arguments. It was contended by the learned counsel for the petitioner that looking to the scope of revision, where the police, after investigation, filed negative final report and thereafter the complainant filed a protest petition before the Judicial Magistrate and the judicial Magistrate, after applying . mind has accepted the final report and rejected the protest petition, in that respect, if that order is challenged by way of revision, the interest of the petitioner is going to be effected. In that case, it was obligatory on the part of the non-petitioner No. 2, as well as for the learned court, to add him as a party. The petitioner was not made party to the revision petition, therefore, the impugned order passed by the revisional court deserves to be set aside. It was further contended that it is settled position of law that no order contrary to the interest of any party is passed, without affording him an opportunity of being heard. 5. Learned counsel for the petitioner also submitted his contentions on the merits of the case and urged that the Judicial Magistrate rightly accepted the FR and rejected the protest petition. There was no ground to proceed further. But on the contrary, the learned Sessions Judge exceeded his jurisdiction while accepting the revision and further directing the Judicial Magistrate to send the matter for further investigation. It was submitted that 1 the order of the revisional court, is not in accordance with law. 6. The learned counsel for the petitioner, in support of his contention, placed reliance on the judgment given in Parmoli v. State of Rajasthan & Ors., (2007 WLC (Raj.) UC 565) , Sitaram v. Bishanlal & Ors. (2008(2) Cr.L.R. (Raj.) 1491) and B.B. Mohanti v. State of Rajasthan & Anr., 2008(2) R.Cr.D. 532 (Raj.) . 7. On the contrary, learned Public Prosecutor, assisted by the learned counsel for the non-petitioner No. 2, refuted the contentions and submitted that it was not necessary to implead petitioner as a party, nor it was 1 obligatory on the part of the learned court to add him as party and to give him an opportunity of being heard. 7. On the contrary, learned Public Prosecutor, assisted by the learned counsel for the non-petitioner No. 2, refuted the contentions and submitted that it was not necessary to implead petitioner as a party, nor it was 1 obligatory on the part of the learned court to add him as party and to give him an opportunity of being heard. The revisional court has rightly set aside the order passed by the Judicial Magistrate and considering the facts of the case, has rightly directed the Judicial Magistrate to refer the matter to the police for further investigation. It was urged that the present revision is not 1 sustainable and prayed to dismiss the same. 8. In support of his contention, learned counsel for non-petitioner No. 2, relied on the judgments given in P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu (2008(2) Cr.C.C. 901 (SC)) , Igbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005(1) WLC (SC) Cri. 557 : (2005(2) Cr.C.C. 498 (SC) , S.S. Khanna v. Chief Secretary, Patna ( AIR 1983 SC 595 ) , A.K. Subbaiah v. State of Karnataka ( (1987) 4 SCC 557 ) and J.K. International v. State (2002 Cr.L.J. 2601) . 9. I have considered the rival submissions and perused the impugned order. It is not disputed that the petitioner was not a party before the learned Sessions Judge. The learned Sessions Judge, after hearing the parties, has set aside the order passed by the Judicial Magistrate and further directed the Judicial Magistrate to send the matter to the police for further enquiry. In this case, it is also revealed that the Judicial Magistrate, after applying his mind, has accepted the final report and rejected and protest petition filed by the complainant non-petitioner No. 2. Against that, revision petition was filed. In this respect, while reading Section 397 and Section 401(2) Cr.PC. jointly, it is made clear that if the revisional court while exercising his revisional jurisdiction, was to pass an order to the prejudice of a person, it is necessary that that person should be given opportunity of hearing. In this case, no such opportunity was given to the present petitioner. Therefore, the impugned order is not sustainable. The learned Sessions Judge should have given opportunity of hearing to the petitioner. In this case, no such opportunity was given to the present petitioner. Therefore, the impugned order is not sustainable. The learned Sessions Judge should have given opportunity of hearing to the petitioner. For that it was obligatory on the part of the non-petitioner as well as on the part of the court to make them party. This conclusion finds support from the judgments cited by the learned counsel for the petitioner in B.B. Mohanti's case (supra) a coordinate Bench of this Court, after discussing several judgments, it was observed that if interest of any person is affected, then he is necessary party. 10. I have also considered the judgments cited by the learned counsel for the non-petitioner No. 2 in S.S. Khanna's case (supra), the factual scenario was different. Likewise, in A.K. Subbaiah's case (supra), respondent No. 2 and 3 whose names were deleted were not parties before the learned lower court. In that reference the court held that they were not necessary parties. Likewise, in J.K. Internationals case (supra), the complaint was dismissed in default. In that case, accused was held not a necessary party but the factual position of the present one is different. As such, they are not supporting the contention of the learned counsel for non-petitioner No. 2. P. Swaroopa Rani's case (supra) and lqbal Singh Marwah's case (supra) are not relevant at this stage. They are related with bar of section 195(1)(b) Cr.PC. 11. On the basis of aforesaid discussion, the impugned order passed by the learned Sessions Judge is not sustainable and is hereby set aside and the matter is remanded back for afresh hearing. The parties are directed to appear before the revisional court on 19.01.09 and they will be free to agitate their contentions. The learned revisional court, without being influenced by any observation made in this order, after affording opportunity of hearing to the parties, will decide the revision petition in accordance with law. 12. The revision petition stands disposed of accordingly.Revision Disposed of as Above. *******