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2012 DIGILAW 2485 (DEL)

O. P. Dawar v. State

2012-08-17

PRATIBHA RANI

body2012
JUDGMENT : 1. The petitioner has filed this criminal revision petition being aggrieved by the order dated 16.09.2009 passed by the learned Addl. Sessions Judge, New Delhi whereby the revision petition filed by the respondent No.2 herein was allowed by the Court without issuing notice to the present petitioner. 2. In brief the case of the petitioner is that a criminal complaint was filed by the respondent No.2 against the petitioner and one Vijay Kapoor for committing the offences punishable under Sections 406/420/120-B IPC for which a case FIR No.803/1998 was registered at Police Station Malviya Nagar. After investigation, a closure report was submitted by the Investigating Agency in the said case which was accepted by the learned M.M. without giving notice to the complainant (R-2). The complainant impugned that order which was set aside by the learned ASJ vide order dated 26.02.2002 directing the learned M.M. to hear the complainant who filed the protest petition. 3. After recording the pre-summoning evidence, the complaint was again dismissed and the said dismissal order was again impugned by the complainant by filing a revision petition. The said revision petition filed by the complainant was allowed by the learned ASJ vide order dated 16.09.2009 without any notice to the petitioner which order has been impugned before this Court. 4. Notice of the petition was issued to the respondents who have entered appearance through their respective counsel. 5. I have heard learned counsel for the parties and considered the rival submissions put forth by them. 6. On behalf of the respondent No.2, it has been submitted that till the revision petition was allowed by the Court and the petitioner was summoned as an accused, no notice was required to be issued to him, as he was not a party before the Court prior to that stage. 7. This contention of the respondent is liable to be rejected in view of the judgment of the Apex Court in A.N. Santhanan vs. K. Elangovan 2011 (2) JCC 720 wherein the facts were identical to the extent that after dismissal of the complaint, the complainant filed the revision petition in the High Court of Madras. 7. This contention of the respondent is liable to be rejected in view of the judgment of the Apex Court in A.N. Santhanan vs. K. Elangovan 2011 (2) JCC 720 wherein the facts were identical to the extent that after dismissal of the complaint, the complainant filed the revision petition in the High Court of Madras. The High Court upon appreciation of material available on record, found that the complaint filed by the respondent and the statements of the witnesses clearly make out a case against the appellant for the offence punishable under Section 3(1 )(x) of the said Act and accordingly, allowed the revision thereby setting aside the order passed by Magistrate dismissing the complaint without any notice whatsoever to the appellant. In A.K. Subbaiah & Ors. V. State of Karnataka 1987 3 SCR 1128 while referring to Section 401 Sub Clatise-2, it was held :- "Sub clause 2 of this Sec. talks of a situation where an order is being passed against any person and it was contended by the Learned Counsel that the section not only talks of accused persons but also of "or other person unless he has had an opportunity of being heard." Apparently this sub-clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Sec. 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party. Learned Counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is, there will be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceedings. Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned." 8. In Raghu Raj Singh Rousha versus Shivam Sundaram Promoters Pvt, Ltd. and Anr. Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned." 8. In Raghu Raj Singh Rousha versus Shivam Sundaram Promoters Pvt, Ltd. and Anr. 2009 (1) JCC 405, the submission was identical that no notice was required to be issued to the appellant since it was at the stage of taking cognizance. Referring to the powers of the High Court, the legal position was summarized as under :- "8. A plain reading of Clause (2) of the said provision makes it abundantly clear that the High Court in exercise of its revisional power cannot pass any order which may cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence. 9. In the instant case it cannot be said that the rights of the appellants have not been affected by the order of revision. The complaint filed by the respondent which was rejected for whatsoever reasons has been resurrected with a direction to the Magistrate to proceed with the complaint. Undoubtedly, whether the appellant herein was an accused or not but his right has been affected and the impugned order has resulted in causing prejudice to him. 10. In the circumstances, we are of the view that the decision cited by the learned counsel for the respondent has no application whatsoever to the facts situation. In fact the decision of this Court was in a case where the complaint was taken cognizance and not a case where the complaint was rejected. In the circumstances, we hold that the High Court committed an error in allowing the revision filed by the respondent herein without any notice to the appellant." 9. In Uma Nath Pandey & Ors. Vs. State of U.P. & Anr. 2011 (2) JCC 1182 : AIR 2009 SC 2375 , it was observed by the Apex Court as under:- "19. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice." 10. In the instant case, the learned ASJ has exercised the revisional jurisdiction without affording an opportunity of being heard to the petitioner. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice." 10. In the instant case, the learned ASJ has exercised the revisional jurisdiction without affording an opportunity of being heard to the petitioner. The petitioner herein was the affected party and the impugned order has caused prejudice to him which has been passed without issuing any notice to him. 11. In the circumstances, the impugned order dated 16.09.2009 passed by the learned Addl. Sessions Judge in Crl. Revision No. 95/06 is hereby set aside and the matter is remanded back to the Trial Court for disposal of the revision petition after giving the parties an opportunity of being heard. Parties are directed to appear before the learned Trial Court on 10.10.2012. 12. Petition stands disposed of in the above terms. _____________