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2013 DIGILAW 291 (RAJ)

Jagdish Chandra v. State of Rajasthan

2013-02-05

SANDEEP MEHTA

body2013
JUDGMENT 1. - The Instant miscellaneous petition has been preferred by the petitioner challenging the order dated 19.1.2011 passed by the learned Addl. Chief Judicial Magistrate No. 2, Chittorgarh whereby cognizance has been taken against the petitioner for the offences under Sections 493 and 494 I.P.C. 2. Learned counsel for the petitioner submits that in this case the complainant respondent No. 2 filed a complaint against the petitioner for the offences under Sections 420 and 376 I.P.C. The complaint was sent to the police for investigation under Section 156(3) Cr.P.C. The police after investigation filed a negative final report which was accepted by the trial Court by its order dated 12.7.2007. The complainant preferred a revision against the said order and in the Revisional Court the petitioner was not impleaded as party and without providing any opportunity of hearing to the petitioner, the matter was remanded back to the trial Court for passing a fresh order on the final report. Learned counsel submits that in pursuance of the remand order, the learned Magistrate has taken cognizance and summoned the petitioner to face trial for the offences under Sections 493 and 494 I.P.C. without recording any evidence despite the fact that both the offences are non-cognizable. Learned counsel, therefore, prays that the matter be remanded back to the Revisional Court because petitioner was not provided an opportunity of hearing in revision and the remand order which was passed behind the back of the petitioner is absolutely illegal. 3. Learned counsel for the respondent No. 2 has opposed the submissions advanced by the learned counsel for the petitioner. 4. Heard and considered the arguments advanced at the bar. Perused the record. 5. It is not disputed by the learned counsel for the respondent No. 2 complainant that the Revisional Court which was hearing the revision filed by the complainant against the order accepting the final report did not provided any opportunity of hearing to the petitioner as warranted by Sections 399(2) and 401(2) Cr.P.C. Recently, the Hon'ble Apex Court in the case of Manharibhai Midjibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel, reported in 2013(1) RLW SC 94 , has held that a suspect is entitled to be heard in revision filed by the complainant challenging the order rejecting the complaint or refusing to take cognizance. v. Shaileshbhai Mohanbhai Patel, reported in 2013(1) RLW SC 94 , has held that a suspect is entitled to be heard in revision filed by the complainant challenging the order rejecting the complaint or refusing to take cognizance. Therefore, this Court is of the opinion that the order dated 17.6.2009 passed by the Revisional Court whereby it has remanded the matter back to the Magistrate and the order dated 19.1.2011 passed learned Magistrate taking cognizance against the petitioner for the offence under Sections 493 and 494 I.P.C. are grossly illegal and amount to an abuse of the process of the Court.Accordingly, the miscellaneous petition succeeds. The orders dated 19.1.2011 passed by the learned A.C.J.M. No. 2 Chittorgarh and the order dated 17.6.2009 passed by the learned Addl. Sessions Judge No. 1, Chittorgarh are quashed. The matter is remanded back to the learned Revisional Court to decide the revision afresh after providing opportunity of hearing to the petitioner. The parties shall appear before the Revisional Court on or before 18.3.2012. Thereafter the Revisional Court will re-hear the revision and pass a fresh order thereupon in accordance with law. Record shall be sent back to the trial Court forthwith.Petition allowed. *******