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2013 DIGILAW 1362 (RAJ)

Bablu @ Sudhir Dixit v. State of Rajasthan

2013-07-26

SANDEEP MEHTA

body2013
JUDGMENT 1. - Since these two petitions arise out of the same incident and seek to challenge same orders, they are being decided by this common order. 2. Mr. Pareek accepts notice on behalf of respondent no. 2 in Misc. Petition No. 22/2013. Thus, service is complete in both these matters. With the consent of the learned counsel for the parties, the matters are heard finally. 3. These two miscellaneous petitions have been filed by the petitioners who were arrayed as accused in the F.I.R. No. 205/1995 registered at P.S. Sardarsahar. The police filed a negative final report after completing investigation. The learned Magistrate proceeded to accept the final report after giving opportunity of hearing to the complainant by his order dated 10.5.2000. The said order was assailed by the complainant Ram Niwas in revision and the learned Addl. Sessions Judge in Revision No. 161/2000 without providing any opportunity of hearing to the petitioners, observed that the learned Magistrate had not appreciated the material available on record appropriately and remanded the case back to the learned Magistrate for further consideration. Upon the remand so being made, the learned Magistrate proceeded to take cognizance against the petitioners by the order dated 22.4.2004. The petitioners unsuccessfully challenged the said order of the learned Magistrate in revision which was rejected vide order dated 3.11.2010. Now, the petitioners have approached this Court by way of the instant miscellaneous petitions assailing the order of remand dated 2.11.2002 and all the subsequent proceedings. 4. Learned counsel for the petitioners placing reliance on the Hon'ble Apex Court decision in the case of Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel reported in 2013(1) RLW SC 94 , submitted that the petitioners being the proposed accused were mandatorily required to be made a party in the revision petition filed by the complainant challenging the order of acceptance of final report. He submits that without impleading the accused as a party a revision was filed which was accepted, thus, the Revisional Court's order was passed in total violation of principles of natural justice and is also contrary to the mandatory provisions of Section 398 and 401(2) Cr.P.C. Thus, he prays that the matter deserves to be remanded back to the Revisional Court for fresh consideration of the revision after providing opportunity of hearing to the petitioners. 5. Mr. 5. Mr. Manoj Pareek, learned counsel for the respondent is not in a position to dispute the fact that the petitioners were not made a party in the revision filed by the complainant challenging the order of acceptance of final report. 6. Having heard learned counsel for the petitioners and the learned counsel for the respondent and after perusing the orders impugned and the judgment of the Hon'ble Apex Court in the case of Manharibhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel (supra), this Court is of the opinion that the order passed by the Revisional Court was totally in disregard to the principles of natural justice and the provisions of Section 398 and Section 401(2) Cr.P.C. As such all the subsequent proceedings based on the Revisional Court's order are vitiated. 7. As a result of aforesaid discussion the miscellaneous petitions deserve to be accepted. 8. Accordingly, both the miscellaneous petitions are allowed. The order dated 2.11.2002 passed by the learned Addl. Sessions Judge, Churu passed in revision and all the subsequent orders dated 22.4.2004 passed by the learned Magistrate taking cognizance are both quashed. The matter is remanded back to the Revisional Court for fresh consideration of the Revision No. 161/2000. The revision shall be restored to its original number. Both the parties shall appear before the learned Revisional Court within six weeks from today. Thereafter the Revisional Court shall summon the record of the case from the Court of learned Judicial Magistrate and shall decide the revision after providing opportunity of hearing to all concerned. The stay applications stand disposed of.Petition allowed. *******