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2010 DIGILAW 2663 (ALL)

Bhola Nath Sahu v. State of U. P.

2010-08-31

RAJ MANI CHAUHAN

body2010
Hon'ble Raj Mani Chauhan,J. 1. Sri Alok Srivastava, Advocate files Vakalatnama on behalf of opposite party No.2, which is taken on record. 2. Learned counsel for the petitioners files supplementary affidavit, which is also taken on record. 3. Heard learned counsel for the petitioners, learned A.G.A for the State and learned counsel for the complainant as well as perused the documents available on record. 4. This petition under Section 482 Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioners for quashing the order dated 09.08.2010 passed by the III Additional Sessions Judge/Special Judge (Gangster Act), Gonda in Criminal Revision No. 276 of 2009; Rajni Sahu Vs State of U.P., whereby the learned Additional Sessions Judge has allowed the revision and set aside the order passed by the Chief Judicial Magistrate, Gonda in Misc Case No. 752 of 2009 (Rajni Sahu Vs Bhola Nath Sahu and others) and remanded the matter back to the learned Chief Judicial Magistrate, Gonda with a direction to pass afresh order on the application moved by the opposite party No.2 under Section 156 (3) of the Code in light of the observation made in the body of the judgment after giving due opportunity of hearing to the revisionist/applicant. 5. The facts giving rise to the present petition in brief are that the opposite party No.2 Rajni Sahu, wife of petitioner No.1 Bhola Nath moved an application under Section 156 (3) of the Code against her husband and seven others who are his family members. She in her application has alleged that her marriage was solemnized with Bhola Nath Sahu on 27.01.2008. Her parents as per their financial capacity had spent money on present etc. at the time of marriage. When she went to her marital home following her marriage, accused expressed their dissatisfaction over the dowry presented by her parents to her husband. They used to pass taunting remarks on her. Later on, accused Bhola Nath put a fresh demand of one Bolero vehicle in the form of dowry at the instance of other accused named in the application. When she went to her marital home following her marriage, accused expressed their dissatisfaction over the dowry presented by her parents to her husband. They used to pass taunting remarks on her. Later on, accused Bhola Nath put a fresh demand of one Bolero vehicle in the form of dowry at the instance of other accused named in the application. When she refused to satisfy their demand they started to harass and torture her and lastly they on 14.06.2009 had badly beaten her and left her at the bus station to got to her parents home with the warning that she will be brought back only when if she comes with Bolero vehicle. 6. Learned Chief Judicial Magistrate vide order dated 28.08.2009 treated the application under Section 156 (3) Cr.P.C. filed by the complainant as complaint. The complainant being aggrieved by the impugned order passed by the learned Chief Judicial Magistrate filed a Criminal Revision No. 276 of 2009 before the learned Sessions Judge, Gonda who transferred the same to the court of learned III Additional Sessions Judge/Special Judge (Gangster Act), Gonda for disposal. Learned Additional Sessions Judge heard the revisionist and observed that the complainant had clearly levelled allegation against the accused constituting the cognizable offence which had not been considered by the learned Chief Judicial Magistrate. Learned Additional Sessions Judge, therefore, allowed the revision and set aside the order and remanded the matter back to Chief Judicial Magistrate, Gonda with a direction to pass afresh order on the application moved by the opposite party No.2 under Section 156 (3) of the Code in light of the observation made in the body of the judgment after giving due opportunity of hearing to the revisionist/applicant 8. The accused-petitioners feeling aggrieved by the impugned order passed by learned Additional Sessions Judge has preferred the present petition under Section 482 of the Code. 9. The only point pressed by the learned counsel for the petitioners is that the application filed by the opposite party No.2 under Section 156 (3) was treated to be complaint by the learned Chief Judicial Magistrate. The complainant being aggrieved by the order passed by the learned Magistrate filed revision before the Sessions Judge, Gonda without impleading the accused as party while they were necessary party to the revision. The revision was, therefore, defective and liable to be dismissed only on this ground alone. 10. The complainant being aggrieved by the order passed by the learned Magistrate filed revision before the Sessions Judge, Gonda without impleading the accused as party while they were necessary party to the revision. The revision was, therefore, defective and liable to be dismissed only on this ground alone. 10. Learned counsel submits that the opposite party No.2 had moved an application under Section 156 (3) of the Code for directing the S.O. of police station concerned to register and investigate the case on her application which was treated as complaint by the learned Magistrate. After the order passed by the learned Magistrate, a valuable right had accrued in favour of the accused and if the same order was challenged by the opposite party No.2 in revision the accused were required to be impleaded as party as well as to be heard. The impugned order has been passed by the learned Additional Sessions Judge without impleading the accused as party in the revision, therefore, the impugned order passed by learned Additional Sessions Judge is apparently illegal. 11. Learned counsel for the petitioners in support of his arguments has placed reliance on the case of Raghu Raj Singh Rousha Vs Shivam Sundaram Promoters Private Limited and another reported in (2009) 2 Supreme Court Cases 363. Leaned counsel submits that the facts of the present case are squarely covered with the decision of the Hon'ble Apex Court, therefore, the petition deserves to be allowed on this ground alone. 12. Learned A.G.A. as well as learned counsel for the opposite party No.2 although supported the order passed by the learned Sessions Judge but they on the basis of law laid down by the Hon'ble Apex Court in the above cited case accepted that the accused-petitioners were necessary party to the revision filed by the complainant before the learned Sessions Judge, Gonda. 14. I have given thoughtful consideration to the submissions of learned counsel for the petitioners and learned A.G.A. as well as learned counsel for the complainant. 15. In the case cited above, the complainant had moved an application under Section 156 (3) Cr.P.C. before the Additional Chief Metropolitan Magistrate, New Delhi at Patiala House which was treated to be complaint by the learned Metropolitan Magistrate. 15. In the case cited above, the complainant had moved an application under Section 156 (3) Cr.P.C. before the Additional Chief Metropolitan Magistrate, New Delhi at Patiala House which was treated to be complaint by the learned Metropolitan Magistrate. The complainant had challenged the order passed by the learned Metropolitan Magistrate before the High Court without impleading the accused as party which was allowed by the High Court. The accused had challenged that order in SLP before the Hon'ble Apex Court. The only point pressed by the learned counsel for the appellant before the Hon'ble Court was that the accused was not impleading as party in the revision filed by the complainant before the High Court, therefore, impugned order passed by the High Court was illegal. The Hon'ble Court held that the Magistrate had taken cognizance of the offence and treated the application moved by the complainant under Section 156 (3) of the Code as complaint. Therefore, accused were necessary party to the revision filed by the complainant before the High Court. The relevant observation of the Hon'ble Apex Court finds place in paras 22 and 23 of the judgment which are being extracted below:- ".....22. Hence, however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction under Section 156 (3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code. 23. We, therefore, are of the opinion that the impugned judgement cannot be sustained and is set aside accordingly. The High Court shall implead the appellant as a party in the criminal revision application, hear the matter afresh and pass an appropriate order....." 16. The law laid down by the Hon'ble Apex Court has been followed by this Court in Criminal Misc Case No. 2092 of 2009 decided on 29.07.2009. 17. The High Court shall implead the appellant as a party in the criminal revision application, hear the matter afresh and pass an appropriate order....." 16. The law laid down by the Hon'ble Apex Court has been followed by this Court in Criminal Misc Case No. 2092 of 2009 decided on 29.07.2009. 17. In view of the law laid down by the Hon'ble Apex Court in the case of Raghu Raj Singh Rousha (supra) it is clear that the accused-petitioners were necessary party to the revision filed by the opposite party No.2 before the learned Sessions Judge against the order passed by the Chief Judicial Magistrate, Gonda. Therefore, the revision itself was defective of nonjoinder of necessary party. Consequently, the order passed by the learned Sessions Judge in the absence of accused-petitioners is illegal and is liable to be set aside. 18. The petition deserves to be allowed and the matter needs to be remanded back to the learned Additional Sessions Judge with a direction that he shall direct the revisionist to implead the accused-petitioners as opposite parties in the revision, then he will dispose of the revision accordingly after hearing the parties. The petition is, therefore, allowed. The impugned order dated 09.08.2010 passed by the III Additional Sessions Judge/Special Judge (Gangster Act), Gonda in Criminal Revision No. 276 of 2009; Rajni Sahu Vs State of U.P is set aside. The matter is remanded back to the learned Additional Sessions Judge with a direction that he shall direct the revisionist to implead the accused-petitioners as opposite parties in the revision, then he will dispose of the revision on merit after hearing the parties.