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2014 DIGILAW 1716 (RAJ)

Kalyan Singh v. State of Rajasthan

2014-10-28

SANDEEP MEHTA

body2014
JUDGMENT 1. - The miscellaneous petition No.131/2014 has been preferred by the petitioner complainant against the order dated 15/5/2012 passed by the learned Additional Sessions Judge (Fast Track) No.1 Pali HQ Jaitaran in revision. The Revisional Court allowed the revision preferred by the accused respondents No.2 to 7 and partially set aside the order dated 7/1/2011 passed by learned Judicial Magistrate First Class, Bur. 2. The learned Magistrate by order dated 7/1/2011 took cognizance against the accused respondents No.2 to 7 for the offences under Sections 147, 452, 427, 323, 504 of IPC. The Revisional Court whilst partly accepting the revision, quashed the order of cognizance entirely qua the respondents No.5, 6 and 7 Saroj, Sunita and Naurati Devi and partly qua the respondents No.2, 3 and 4 Pukhraj, Subhash and Dinesh. 3. The petitioner complainant has approached this Court by way of the instant miscellaneous petition assailing the order passed by the Revisional Court principally on the ground of violation of principles of natural justice, and as being contrary to the provisions of Section 399 read with Section 401 of the Cr.P.C. 4. Learned counsel for the petitioner submitted that the Police had filed a negative Final Report upon concluding the investigation on the basis of an F.I.R registered by the petitioner. Cognizance was taken by the trial Court on the basis of a protest petition filed by the petitioner. Thus, as per him, while entertaining the revision filed by the accused against the order taking cognizance, the Revisional Court was under an obligation to provide an opportunity of hearing to the complainant. The complainant was neither impleaded as a party in the revision nor was he provided an opportunity of hearing. As per the learned Counsel, the impugned order passed by the Revisional Court is grossly legal and amounts to an abuse of process of Court and thus, the same deserves to be quashed. He submits that as per Section 399(2) read with Section 401(5) of the Cr.P.C., the complainant being an aggrieved person is entitled to be heard in a revision filed against the order taking cognizance. He thus prayed that the impugned order having been passed in total disregard of this mandatory requirement, the same deserves to be quashed and the matter should be remanded back to the revisional Court for deciding the revision a fresh after providing an opportunity of hearing to the petitioner complainant. He thus prayed that the impugned order having been passed in total disregard of this mandatory requirement, the same deserves to be quashed and the matter should be remanded back to the revisional Court for deciding the revision a fresh after providing an opportunity of hearing to the petitioner complainant. 5. The learned Counsel appearing for the respondents accused vehemently opposed the submissions advanced by the Counsel for the petitioner and submitted that the revisional Courts order does not suffer from any infirmity and thus, no interference is called for on the basis of mere hypertechnical objections whilst exercising the inherent powers of this Court. However, he too was not in a position to dispute the fact that the complainant was not impleaded as a party and was not heard in the revision preferred by the accused against the order taking cognizance. 6. Law in this regard is well settled that an aggrieved person is entitled to be heard in a revision preferred by the opposite party. Cognizance was taken by the trial Court on the basis of a protest petition filed by the petitioner. Thus, the petitioner complainant is definitely an aggrieved party in the case. Thus, in a revision preferred against such cognizance order, the complainant was required to be impleaded as a party and had to be provided with an opportunity of hearing by the revisional court. The statutory provisions of Sections 399 and 401 of the Cr.P.C. clearly postulate that the aggrieved person is required to be heard whenever the Revisional Court is examining the matter involving challenge to the proceedings of the subordinate Court. The relevant provision being Section 401(2) reads as below:- "(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." 7. The petitioner being the complainant in the case was a person aggrieved in this case and, if any order was proposed to be passed to his prejudice then, he had to be provided with an opportunity of hearing. Admittedly, no such opportunity was provided to the petitioner by the Revisional Court. In view of the aforesaid facts and circumstances, the Revisional Courts order dated 15/5/2012 is grossly illegal and amounts to an abuse of process of Court and cannot be sustained. 8. Admittedly, no such opportunity was provided to the petitioner by the Revisional Court. In view of the aforesaid facts and circumstances, the Revisional Courts order dated 15/5/2012 is grossly illegal and amounts to an abuse of process of Court and cannot be sustained. 8. Accordingly, the miscellaneous petition deserves to be accepted and is hereby allowed. The impugned order dated 15/5/2012 is hereby quashed. The matter is remanded back to the revisional Court for deciding the revision afresh after providing an opportunity of hearing to the respondent and the petitioner. The parties shall appear before the revisional Court, either personally or through the Counsel before the concerned court on 10/11/2014. The court shall thereafter, proceed to hear the revision afresh and decide the same as per law.The stay application is disposed off.Petition dismissed. *******