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2013 DIGILAW 571 (UTT)

Ram Dai v. State of Uttarakhand

2013-09-02

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. By means of present petition/application under Section 482 Cr. P.C., the applicants seek to quash the impugned order daed 21.11.2009 passed by learned Additional Sessions Judge / FTC IV, Haridwar, in Criminal Revision No. 333 of 2009, Jagjeevan Ram vs. State of Uttarakhand. 2. Respondent no. 2 moved an application before the Magistrate concerned under Section 156 (3) Cr. P.C. for directing the police station concerned to lodge a first information report against the applicants. The application under Section 156 (3) Cr. P.C. was dismissed by learned Additional Judicial Magistrate, District Haridwar, vide order dated 16.09.2009. Aggrieved against the said order, respondent no. 2 preferred a Criminal Revision, which was partly allowed, vide impugned judgment and order dated 21.11.2009. The matter was remitted back to learned Magistrate to decide the matter in view of the observations made therein. Aggrieved against the impugned judgment and order dated 21.11.2009, present Application under Section 482 Cr. P.C. was moved. 3. The sole grievance of the applicants is that learned Sessions Judge passed the impugned order without affording an opportunity of hearing to them, which was in violation of Section 399(2) of Cr. P.C., wherein it is stated that no order under this Section shall be made to the prejudice of accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. This fact is under no dispute that the applicants were not made a party in the criminal revision no. 333 of 2009, and the impugned order was passed only after haring learned D.G.C. (Criminal). 4. Learned counsel for the applicants placed reliance upon the rulings of Chandra Deo Singh vs. Prokash Chandra Bose and another, (1964)(1) SCR 639; Vadilal Panchal vs. Dattatraya Dulaji Chadigaonker and another, (1961) 1 SCR1; P.Sundarrajan andothers vs. R.Vidhya Sekar (2004) 13 SCC 472 ; A.N. Santhanamvs. K.E. and Langovan 2011 (2) JCC 720 (SC; Raghu Raj Singh Rousha v. Shivam Sundaram Promoters Private Limited and another, (2009) 1 SCC (Cri) 801 and Manharibhhai Muljibhai Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors., 2013 (1) N.C.C. 168 SC in support of his contention, wherein it was held that not only an accused, but also an affected person (prejudiced) is required to be heard by a Revision Court. 5. v. Shaileshbhai Mohanbhai Patel & Ors., 2013 (1) N.C.C. 168 SC in support of his contention, wherein it was held that not only an accused, but also an affected person (prejudiced) is required to be heard by a Revision Court. 5. Paragraph 58 of the judgment rendered by the Hon’ble Apex Court in Manharibhai Muljibhai Kakadia’s case (supra) brings down the curtain on the whole controversy. The said paragraph is being reproduced herein below for convenience: “58. We are in complete agreement with the view expressed by this Court in P. Sundarrajan1, Raghu Raj Singh Rousha and A. N. Santhanam. We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.” 6. It is accordingly, held that the accused or a person who is suspected to have committed crime is entitled to hearing by the reivisional court. The persons who are arraigned as accused in a complaint have a right to be heard in criminal revision. The judgments of the High Courts to the contrary are overruled.” 6. It is accordingly, held that the accused or a person who is suspected to have committed crime is entitled to hearing by the reivisional court. The persons who are arraigned as accused in a complaint have a right to be heard in criminal revision. The impugned judgment and order dated 21.11.2009 is ex facie unsustainable in law by not giving opportunity to the applicants herein to defend their case. The impugned judgment and order, therefore, cannot sustain and is liable to be set aside. The same is accordingly set aside. It is directed that the revisional court shall implead the applicants as a party in the criminal revision, will issue notices to them, hear the matter afresh and pass an appropriate order in accordance with law. 7. Application under Section 482 Cr. P.C. is finally disposed of with the direction as above.