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2013 DIGILAW 798 (RAJ)

Surajmal Karwa v. State of Rajasthan

2013-04-26

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT 1. - The present revision petition has been filed by the accused. He has made a grievance that the revisional Court had not followed mandate of Section 401(2) Cr.P.C.and the impugned order was passed without affording any opportunity of hearing to the accused. 2. Counsel for the petitioner has urged that revisional Court below has set aside the order whereby final report was accepted by the Magistrate without affording opportunity of hearing to the accused and thus prejudice has been caused to the accused. It is further contended that Section 401(2) Cr.P.C. specifically state that no order shall be passed by the revisional Court to the prejudice of the accused or any other person unless he had an opportunity of being heard either personally or by the pleader in his own defence. 3. To appreciate the above said arguments, it will be necessary to recapitulate brief facts. Kumbha Ram respondent no. 2 on 04.04.2003 submitted a complaint against the petitioner and other accused. The said complaint was sent for investigation under Section 156(3) Cr.P.C. and on basis thereof FIR no. 79/2003 was registered at Sujangarh Police Station District Churu for the offences under Sections 420, 406 IPC. After completion of investigation final negative report was submitted. To assail the same, complainant-respondent no. 2 had preferred protest petition before the Court of the Magistrate. The concerned Magistrate after hearing both the parties rejected the protest petition vide order dated 22.06.2005 and accepted the final negative report. The said order was challenged by the complainant by filing the revision petition. 4. The revisional Court below without issuing any notice to the accused petitioner took cognizance of the offence under Sections 420, 406 IPC. and vide order dated 22.04.2009 had issued bailable warrants against the present petitioner. The said order was challenged by the complainant by filing the revision petition. 4. The revisional Court below without issuing any notice to the accused petitioner took cognizance of the offence under Sections 420, 406 IPC. and vide order dated 22.04.2009 had issued bailable warrants against the present petitioner. A single Judge of the Court on 13.01.2012 while issuing notice had passed the following detailed order:- "The present revision petition has been preferred by the petitioner being aggrieved of the order dated 17.6.2008 passed by the learned Additional Sessions Judge, Sujangarh, district Churu in Criminal Revision Petition No. 126/2007 (67/2005), whereby he reversed the order dated 22.4.2005 passed by the Judicial Magistrate No. 1, Sujangarh, district Churu accepting the Final Report No. 57/2003 of the Police Station, Sujangarh and the consequent order dated 22.4.2009 passed by the Judicial Magistrate No. 1, Sujangarh whereby he, acting on the directions issued by the learned Revisional Court, has taken cognizance against the petitioner for the offences under Section 420 and 406 IPC. Learned counsel for the petitioner submits that the revisional court, before deciding the revision petition filed by the complainant in a case wherein the learned Magistrate has passed the order of acceptance of the Final Report was, in view of the mandate of proviso to Section 398 Cr.P.C., required to hear the petitioner (the proposed accused) before any order adverse to him could have been passed. I have given my thoughtful consideration to the arguments advanced at the bar. In the opinion of this Court, whenever a Magistrate passes an order deciding the matter dismissing a complaint, accepting a Final Report or an order purporting to be creating some rights in favour of one of the parties to the litigation, then in a revision petition challenging such an order, the person to whose prejudice the revision petition has been preferred has to be heard in the revision petition. The provision of Section 398 Cr.P.C. reads as under:- "Power to order inquiry - On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or sub-section (4) of Section 204 or into the case of any person accused of an offence who has been discharge. Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made." 5. A like provision has been enacted by Section 401 (2) Cr.P.C. and though the provisions of Section 401 Cr.P.C. are in relation to the revisional powers of the High Court but the same provisions apply to a revision petition before the Sessions Judge as well as per Section 399 (2) Cr.P.C. The provisions of Sections 401 and 399 (2) Cr.P.C. read as under:- "401. High Court's powers of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges, composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for a revision as a petition of appeal and deal with the same accordingly." "Section 399 (2).- Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3) (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge." 6. The Hon'ble Apex Court, in the case of Raghu Raj Singh Rousha v. M/s. Shivam Sundaram Promoters (P) Ltd. & Anr., AIR 2008 SC (Supp) 706 , in para Nos. 10, 11, 12 and 13, has held as below:- "Para 10. One of the questions which arises for consideration is as to whether the learned Magistrate has taken cognizance of the offence. Indisputably, if he had taken cognizance of the offence and merely issuance of summons upon the accused persons had been postponed, in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court.' Para 11.-Section 397 of the Code empowers the High Court to call for records of the case to exercise its power of revision in order to satisfy itself as regards correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Subsection (2) of Section 397 of the Code, however, prohibits exercise of such powers in relation to any interlocutory order passed in any proceeding. Subsection (2) of Section 397 of the Code, however, prohibits exercise of such powers in relation to any interlocutory order passed in any proceeding. Whereas Section 399 of the Code deals with the Sessions Judge's power of revision; section 401 thereof deals with the High Court's power of revision. Sub-section (2) of Section 401 of the Code reads, thus: "(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence." Para 12.- Submission of Mr. Jaspal Singh that by reason of the impugned order the appellant was not prejudiced and in any event at the pre-summoning stage, he was not an accused, cannot be accepted. Sub-section (2) of Section 401 of the Code refers not only to an accused but also to any person and if he is prejudiced, he is required to be heard. An order was passed partially in his favour. The learned Metropolitan Magistrate has refused to exercise its jurisdiction under Section 156 (3) of the Code. Had an opportunity of hearing been given to the appellant, he could have shown that no revision application was maintainable and/or even otherwise, no case has been made out for interference with the impugned judgment. Thus, it is very clear that whenever any order prejudicial to the rights of any person, be it the proposed accused, is sought to be passed by a Court exercising revisional jurisdiction then the proposed accused or a person affected by such proceedings has to be provided an opportunity of hearing. The order dated 17.6.2008 which has been passed by the revisional court without providing such opportunity creates numerous complications in the matter. A large number of petitions are received by this Court wherein the accused or other persons affected by such orders, approach this Court and thereby delaying the proceedings in the matters and unnecessarily increasing the volume of cases. The order dated 17.6.2008 which has been passed by the revisional court without providing such opportunity creates numerous complications in the matter. A large number of petitions are received by this Court wherein the accused or other persons affected by such orders, approach this Court and thereby delaying the proceedings in the matters and unnecessarily increasing the volume of cases. Thus, a direction has to be passed to all the learned Sessions Judges in the State of Rajasthan that whenever a revision petition is preferred before them challenging any order passed by the subordinate courts as per which either the complaints have been dismissed or the Final Report have been accepted or any other order creating rights in favour of a party to the litigation is challenged in a revision then necessarily such person, against whose interest the revision has been filed, shall be provided an opportunity of hearing. A copy of this order be circulated to all the learned Sessions Judges in the State of Rajasthan. In the present case, as is observed from the order of the revisional court, the revisional court, on the revision petition filed by the complainant, has set aside the order of the learned Magistrate accepting the Final Report and rejecting the protest petition of the complainant and has directed the Magistrate concerned to proceed further in the matter and pursuant to the directions of the learned Sessions Judge, the learned Magistrate has taken cognizance against the accused. Apparently, the revisional court's order, having been passed without providing an opportunity of hearing to the accused-petitioner, cannot be said to be a just and proper order. Let a notice be issued to the respondent No. 2, the revisionist before the Additional Sessions Judge, returnable within two weeks. In the me anwhile, the operation of the impugned orders dated 16.6.2008 and 22.4.2009 passed by the learned courts below shall remain stayed." 8. In pursuance of the notice issued, office has given a note on 04..02.2012 that notice issued to respondent no. 2 was received duly served and service is complete. Nobody has appeared on behalf of respondent no. 2.9. I have heard learned counsel for the petitioner and the learned Public Prosecutor. In pursuance of the notice issued, office has given a note on 04..02.2012 that notice issued to respondent no. 2 was received duly served and service is complete. Nobody has appeared on behalf of respondent no. 2.9. I have heard learned counsel for the petitioner and the learned Public Prosecutor. It is admitted fact that accused petitioner was not heard by the revisional Court below which had disturbed the order passed by the Judicial Magistrate, first class serial No. 1, Sujangarh and provision of Section 401(2) Cr.P.C. has not been complied with.10. Consequently, the order dated 17.06.2008 passed by Additional Sessions Judge, Sujangarh District Churu is set aside. The matter is remanded back to the revisional Court below to decide the revision no. 126/2007 afresh after hearing all concerned.11. In view of the above, the present revision petition is disposed of.Petition disposed of. *******