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2010 DIGILAW 444 (UTT)

DIWAN SINGH v. STATE OF UTTARAKHAND

2010-07-09

B.C.KANDPAL

body2010
JUDGMENT By way of this petition under Section 482 Cr.P.C. the petitioner, who is the complainant in Case Crime No. 78/20/2003 under Sections 147, 504, 506 I.P.C. and Section 3(1)(x) of SC/ST Act, has prayed for quashing the order dated 20.4.2005 passed by Sessions Judge, Dehradun, in Criminal Revision No. 25 of 2005 Viresh Singh vs. State of Uttaranchal. 2. Brief facts of the case are that applicant/revisionist lodged a First Information Report against respondent No. 2 and after investigation the police submitted the final report in the case, thereafter the petitioner filed the protest petition and learned Chief Judicial Magistrate after considering all the materials available before it took the cognizance in the matter vide order dated 28.12.2004. Feeling aggrieved by the aforesaid order thereby taking the cognizance, respondent no. 2, who was an accused in the case, preferred the revision before the learned Sessions Judge, who after hearing the revisionist (who was an accused in the case) and learned counsel for the State, allowed the revision and set aside the order dated 28.12.2004 by which the cognizance was taken, vide judgment and order dated 20.4.2005. Feeling aggrieved by the aforesaid order passed by the revisional court, the complainant/applicant has preferred the present petition under Section 482 Cr.P.C. before this Court. 3. Heard Mr. Deepak Sharma, Advocate holding brief of Mr. Ramji Srivastava, learned counsel for the applicant/petitioner, Mr. S.S. Adhikari, learned A.G.A. for respondent no. 1 and perused the record. None has appeared on behalf of respondent no. 2. 4. The order passed by the revisional court is sheer abuse of process of court and revisional court has committed flagrant injustice by allowing the revision in a cursory manner. The revisional court has forgotten broaden principle of law that if the revision was to be allowed, then the matter had to be remanded to the learned C.J.M. for re-consideration of the matter instead of straightaway allowing the revision and setting aside the cognizance order passed by the learned Magistrate. Further, the learned Sessions Judge has fell in error in ignoring the judgment of the Hon’ble Apex Court in the case reported in 2004(5) ACC 924, Adalat Prasad versus Roopal Jindal and others, in which it has been observed that the remedy against the cognizance order lies under Section 482 Cr.P.C. for quashing the same. 5. Further, the learned Sessions Judge has fell in error in ignoring the judgment of the Hon’ble Apex Court in the case reported in 2004(5) ACC 924, Adalat Prasad versus Roopal Jindal and others, in which it has been observed that the remedy against the cognizance order lies under Section 482 Cr.P.C. for quashing the same. 5. Learned Sessions Judge has also fell in error that the revision in this case was allowed without giving an opportunity to the complainant (applicant in this case) of being heard. It appears before me that the complainant was neither a party before the revisional court nor the revisional court has given an opportunity of hearing to the complainant. It was not proper on the part of the learned Sessions Judge to allow the revision without providing any opportunity to the complainant of being heard. 6. For the aforesaid reasons, I do not find any merit in the order passed by the revisional court dated 20.4.2005. To my mind, the order dated 20.4.2005 is liable to be quashed. 7. Accordingly, petition is allowed. The order dated 20.4.2005 passed by revisional court is hereby quashed. However, it is open for the trial court, who passed the cognizance order, to proceed further in the matter.