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Madhya Pradesh High Court · body

2011 DIGILAW 1263 (MP)

Anil Arora v. State of M. P.

2011-11-08

N.K.MODY

body2011
ORDER 1. This order shall also govern the disposal of M.Cr.C.Nos. 60/10 and 6250/10 as all the petitioners are related to one offence and parties are one and the same. In Cr.Rev.No. 1036/09 the order under challenge is dated 18.2.2009 passed by IV ADJ, Mandsaur in Cr.Rev. No. 30/09 whereby the learned Sessions Judge has allowed the criminal Revision filed by the respondent No. 2 and set aside the order dated 301.2009 passed by CJM, Mandsaur in Cri.Case No. 1997/08 whereby the CJM, Mandsaur refused to summons the petitioner and two other upon the application filed by the respondent No. 2 under section 190 CrPC for the offence punishable u/Ss. 147, 148, 149, 323, 307 and 302 of IPC. 2. In MCr.C.No. 60/2010 the petition is filed by the petitioner wherein payer in to recall the order dated 18.12.2009 passed by this Court in MCrCNo. 2717/09 whereby the order dated 30.1.09 passed by CJM, Mandsaur whereby the case was committed to the Court of Sessions was set aside and the matter was sent back to the learned Judicial Magistrate to redicide the application filed by respondent No. 2 under section 190 CrPC. in accordance with law. In M.Cr.C.No. 6520/10 which is also the petition filed by the petitioner, the petition is under section 482 CrPC wherein prayer is to recall the order dated 10.9.2010 passed by this Court in MCrCNo. 5266/2010 whereby upon the petition filed by the respondent No. 2, this Court directed to proceed with the case as per order dated 18.12.09 passed in MCrCNo. 2717/09. 3. Short facts of the case are that upon the report of respondent No. 2 criminal case was registered on 29.7.08 at crime No. 399/08 for the offence alleged to have been committed u/s. 147, 148, 307 and 302 IPC read with Sec. 25/27 of the Arms Act. In the FIR which was lodged by the respondent No. 2 there were 18 accused persons which were named therein. After investigation the case was registered at crime no. 399/08. The case was committed by the CJM to the Court of Sessions vide order dated 30.1.09 and was registered as S.T.No. 40/09. In the FIR which was lodged by the respondent No. 2 there were 18 accused persons which were named therein. After investigation the case was registered at crime no. 399/08. The case was committed by the CJM to the Court of Sessions vide order dated 30.1.09 and was registered as S.T.No. 40/09. Co-accused Satyendra Singh also lodged FIR on 30.7.08 for the offence alleged to have been committed u/s. 307 IPC upon which case was registered by the concerned police station at crime No. 400/08 and after investigation challan was filed and JMFC, Mandsaur committed the case to the Court of CJM. During pendency of Sessions case, application was filed by the respondent No. 2 Naharsingh on 20.2.09 wherein it was prayed that the petitioner and other two persons namely Jagdish Arora and Ajay Arora be also impleaded as accused for the alleged offence. Upon the application filed by the respondent No. 2 the notices were issued to the petitioner and two other persons by the Sessions Court vide order dated 27.2.09. Being aggrieved by the order passed by learned Sessions Court wherein notices were issued to the petitioner and other two petitioners and respondent No. 2 filed petitions which were numbered as MCr.CNos. 2717/09 and MCrCNo. 3338/09 and both these petitions were disposed of by this Court vide order dated 18.12.09, the present petitions have been filed. 4. Prior to the order dated 18.12.09 passed by this Court, respondent No. 2 on 18.10.08 filed an application before the CJM u/s. 190 CrPC for taking cognizance of the offence against the petitioner and other two persons which was rejected on 30.1.09 and against the order dated 30.1.09, revision petition was filed by the respondent No. 2 in the Court of 4th ADJ, Mandsaur which was numbered as 30/09 and was allowed vide order dated 18.12.09 and the order dated 30.1.09 passed by CJM, Mandsaur was set aside whereby the application filed by respondent No. 2 u/s. 190 CrPC was dismissed with a direction to redecide the application. The fact that the order dated 18.10.08 passed by CJM, Mandsaur whereby the application filed by the respondent 2 u/s. 190 Cr.P.C. which was deismissed was under challenge before Sessions Court was not taken into consideration by this Court while deciding MCrCNo. 2717/09. Since Cr.Rev. The fact that the order dated 18.10.08 passed by CJM, Mandsaur whereby the application filed by the respondent 2 u/s. 190 Cr.P.C. which was deismissed was under challenge before Sessions Court was not taken into consideration by this Court while deciding MCrCNo. 2717/09. Since Cr.Rev. No. 30/09 was allowed by 4th ADJ vide order dated 18.2.09 and the order passed by the learned CJM dated 18.10.09 was set aside behind the back of the petitioner and other two, therefore, the order dated 18.2.09 has been challenged by the petitioner in Cr.Rev.No. 1036/09. 5. Learned counsel for petitioner submits that before the Sessions Court in Revision Petition No. 30/09 respondent No. 2 deliberately not impleaded the petitioner and other two as parties. Learned counsel submits that in case the revision is allowed, the order is going to effect the petitioner, therefore the petitioner was necessary party and no order could have been passed by the learned Sessions Court behind the back of the petitioner. 6. Learned counsel placed reliance on a decision in the manner of Raghuraj Singh Rousha v. Shivam Sunderam Promotacks Pvt. Ltd. ¼2009½ 2 SCC 363 wherein the Hon. Apex Court has observed that in a case where learned Magistrate has taken cognizance of the offence and merely issuance of summons upon the accused persons has been postponed, in a criminal Revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court. It was further observed that section 401 (2) referes not only to an accused but also to any person and if he is prejudiced he is required to be heard. Further reliance is placed on a decision in the matter of Uma Nath Pandey v. State of U.P. ¼2009½ 12 SCC 40 wherein Hon. Apex Court had occasion to consider necessities of notice to the respondents and observed that in a case where High Court allowing the revision petition filed by the respondent without issuing notice to other parties it was held that order passed by the High Court is impermissible and same was set aside and the matter was sent to the High Court after issuing notice to the concerned parties. Reliance is also placed on a decision in the matter of Rameshan P.O. v. Rakesh Kumar Yadav, ¼2009½ 13 SCC 546, wherein revision was filed against the order which was disposed of without issuing notice, the order was set aside and the matter was sent back for consideration. Reliance is also placed on a decision in the matter of Subharaj v. Sankar Sarkar, AIR 2007 SC (Suppl.) 755 wherein complaint filed against appellant was dismissed against which revision was filed by the complainant was dismissed after hearing the accused and further petition was filed before High Court u/s. 401 and 402 CrPC the Hon. High Court observed that accused persons initially were impleaded but their names were deleted at the behest of the complainant and the High Court without hearing issued directions to the Magistrate to issue process, order is liable to be set aside. Reliance is also placed on a decision in the matter of P. Sunderrajan v. P. Vidhyasekar, ¼2004½ 13 SCC 472 wherein complaint lodged for the offence u/s. 420 IPC having been dismissed by the Judicial Magistrate, revision petition filed by the complainant before the High Court was allowed without issuing notice to the respondent and without considering the defences available to him, the Hon. Apex Court held that order is unsustainable as it violated the principles of natural justice and also requirement of law of hearing a party before passing an adverse order. 7. On the strength of aforesaid position of law, learned counsel for petitioner submits that petition filed by the petitioner be allowed and the impugned order dated 18.2.09 passed by 4th ADJ, Mandsaur in Cr.Rev.No. 30/09 which has been passed without giving opportunity of hearing to the petitioner as petitioner was not impleaded as party be set aside with a direction to the Sessions Court to re-decide the revision filed by the respondent No. 2 after giving opportunity of hearing to the petitioner. 8. Learned counsel for respondent No. 2 submits that no case for recalling of the order is made out. It is submitted that since the petitioner and other two have to be heard in compliance of the order passed by this Court before the learned CJM, therefore, the petition filed by the petitioner be dismissed. 9. 8. Learned counsel for respondent No. 2 submits that no case for recalling of the order is made out. It is submitted that since the petitioner and other two have to be heard in compliance of the order passed by this Court before the learned CJM, therefore, the petition filed by the petitioner be dismissed. 9. From perusal of record, it is evident that in earlier round the case was decided by this Court vide order dated 18.12.2009 which is reported in 2010 CrLR 281 whereby the order dated 301.2009 passed by CJM whereby case was committed to the Court of Sessions, was set aside and the matter was sent back to the learned CJM to redecide the application filed by respondent No. 2 u/s. 190 CrPC in accordance with law. 10. In view of the aforesaid, all the petitions stand disposed of with a short direction that the learned CJM shall decide the application filed by respondent No. 2 under section 190 CrPC after hearing all the parties, i.e. petitioner and other two who are not before this Court and also respondent No. 2. 11. With the aforesaid observation, petition stands disposed of. Let a copy of this order be placed in the connected cases.