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2010 DIGILAW 1494 (PAT)

Braj Bhushan Sharma @ Kariman v. State Of Bihar

2010-07-09

KISHORE K.MANDAL

body2010
JUDGEMENT 1. Heard the parties. 2. Petitioners, who were accused in Complaint Case No.752C/05, are before this Court and seek to challenge the revisional order dated 14.01.2008, passed by learned Addl. District and Sessions Judge, F.T.C.-II, Ara in Cr.Revision No.255/06 which was dismissed in the following manner: "On consideration of the above facts it appears that the prosecution witnesses have supported the case of the complainant stated in the complaint petition. The finding of the learned Magistrate that the petitioner has equal share then it can not be stated that he has no right to execute the sale deed. This finding of the learned Magistrate is self contradictory. There is a prima facie case made out against all the accused persons for the offence u/ss-420,364,406 and 440 I.P.C.There is sufficient material to summon the accused persons. The finding of the order of the learned Magistrate is fit to be set aside. Learned Magistrate is directed to pass the order of issue summon in accordance with law." 3. Relevant facts giving rise to this application may be indicated. The complainant (O.P.NO.2) lodged a complaint in October, 2005 alleging therein that accused persons had committed offence(s) punishable under sections 420, 342, 406 and 440 IPC. The said matter was referred to the police for institution of a case and investigation. The matter was investigated whereafter final report was submitted on 30.03.2005 (Annexure-2). The petitioners herein were not set up for trial. In fact, the police found the accusation wholly mala fide and recommenced action against the complainant under section 188 and 211 Cr..P.C. The said report was accepted on 02.06.2005. As there was already a protest petition by the complainant, the learned Magistrate decided to proceed with the said complaint which gave rise to Complaint Case No.752 (C) of 2005. 4. On a consideration of the material brought on record in course of such inquiry, learned Magistrate by an order dated 30.08.2006 dismissed the complaint in terms of section 203 of the Code of Criminal Procedure ((Annexure-4).The complainant aggrieved by the aforesaid order, preferred the aforesaid Criminal Revision No.255/06 which was disposed of by orders dated 14.01.2008 which has been impugned in the present application. 5. 5. Learned counsel for the petitioners while assailing the sustainability of the order, submits that the same was disposed of without giving any opportunity of hearing to the petitioners who were impleaded as opposite parties in the said criminal revision. He draws attention of the Court to the order-sheet of the learned appellate court ((Annexure-5). On the strength of the aforesaid documents, it has been averred that the order impugned was passed without affording any opportunity of show-cause as no notice was ever issued and served upon the petitioners. He draws attention of the Court to the provision contained in section 398 of the Code of Criminal Procedure. Section 398 of the Code reads thus: "398. Power to order inquiry.-On examining any record under Sec. 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate 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 Sec.203 or sub-section(4) of Sec. 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. It can be seen from the provision of the said section that any direction under this section for enquiry in the case has to be made after giving an opportunity of show-cause to the persons/accuseds who have been proceeded against. It appears that keeping in view the provision of the Code, the complainant (O.P.No.2) himself had impleaded the petitioners herein as opposite parties to the said criminal revision. The documents on record including the relevant pleadings of the petitioners demonstrably indicates that no notice was served upon them before passing of the impugned order. In the fitness of things and in view of the provisions of law, the court below was required to give a notice and thereby afford an opportunity of filing show cause to the petitioners before passing the impugned order. In the fitness of things and in view of the provisions of law, the court below was required to give a notice and thereby afford an opportunity of filing show cause to the petitioners before passing the impugned order. On the contrary, the learned revisional court after hearing the petitioners has recorded a finding that a prima face case under diverse sections of the Penal Code has been made out. 7. For the reasons aforesaid, this Court is persuaded to interfere with the revisional order. Accordingly the said order dated 14.01.2008, passed by the learned Addl. District and Sessions Judge, F. T.C-II Ara, Bhojpur is hereby quashed. The petitioners are directed to appear before the said court within four weeks from today. The learned revisional court shall hear the parties once again and dispose of the said revision application in accordance with law. 8. The application is allowed in aforesaid terms.