Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 71 (UTT)

Captain Mayank Kukreti v. State of Uttarakhand

2014-03-04

U.C.DHYANI

body2014
Judgment : The applicants, by means of present applications / petitions under Section 482 of Cr.P.C., seek to quash and set aside impugned charge-sheet and summoning order dated 10.01.2011, passed by Special Judicial Magistrate (CBI), Dehradun, in criminal case no. 8 of 2011, State vs Mayank Kukreti and others, relating to police station, Raipur, District Dehradun, under Sections 498A, 506 of IPC and Section ¾ of the Dowry Prohibition Act, pending in the selfsame court. 2) An application under Section 156(3) of Cr.P.C. for registration of FIR and investigation of the case was filed by Smt. Mrinal Kukreti (respondent no. 2 herein) against Captain Mayank Kukreti and his family members. Learned Special Magistrate (CBI), Dehradun, vide order dated 24.02.2010, dismissed such an application holding that no offence under any of the Sections, viz., 498A, 323, 504, 506, 420 of IPC and Section ¾ of the Dowry Prohibition Act was made out against the accused persons. Aggrieved against the same, a criminal revision was preferred by Smt. Mrinal Kukreti (complainant). Criminal revision was allowed. The order passed by learned Magistrate on 24.02.2010 was set aside. Learned Magistrate was directed to proceed further as per the observations made by learned revisional court. Such an order was passed by learned Addl. Sessions Judge IV, Dehradun on 27.08.2010. Thereafter, Special Judicial Magistrate (CBI), Dehradun, passed an order on 31.08.2010. Application under Section 156(3) of Cr.P.C. filed by Smt. Mrinal Kukreti was allowed. Inspector of police station, Raipur was directed to register the case and investigate the same. Accordingly, an FIR was registered against Mayank Kukreti, Pushpa Kukreti, Manish Kukreti, Pooja Tripathi and Nitin Tripathi on 04.09.2010, under Sections 420, 498A, 506 of IPC and Section ¾ of the Dowry Prohibition Act. After the investigation, a charge-sheet was submitted against Captain Mayank Kukreti and his mother Smt. Pushpa Kukreti (applicants herein) for the offences punishable under Sections 498A, 506 of IPC and Section ¾ of the Dowry Prohibition Act. Cognizance was taken on said charge-sheet and the accused persons were summoned to face the trial. Aggrieved against the same, present applications under Section 482 of Cr.P.C. were filed separately by the applicants. 3) The sole question for consideration, therefore, is whether a suspect is entitled to hearing by the revisional court in a revision preferred by the accused persons? Cognizance was taken on said charge-sheet and the accused persons were summoned to face the trial. Aggrieved against the same, present applications under Section 482 of Cr.P.C. were filed separately by the applicants. 3) The sole question for consideration, therefore, is whether a suspect is entitled to hearing by the revisional court in a revision preferred by the accused persons? Hon’ble Apex court considered the same in a catena of decisions including Chandra Deo Singh vs Prakash Chandra Bose and another, (1964) (1) SCR 639; Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker and another, (1961) 1 SCR 1; P. Sundarrajan and others vs R. Vidhya Sekar (2004) 13 SCC 472 ; A.N. Santhanam vs K E and langovan 2011 (2) JCC 720 (SC) and Manharibhai Muljibhai Kakadia and another vs Shaileshbhai Mohanbhai Patel and others, 2013 (1) NCC 168. 4) 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 here-in-below for convenience: “58. We are in complete agreement with the view expressed by this Court in Sundarrajan (supra), Raghu Raj Singh Rousha (supra) and A.N. Santhanam (supra). We hold, as it may 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. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate disclaiming 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.” 5) Learned counsel for respondent no. 2 contended, among other things, that Manharibhai Muljibhai Kakadhia’s case (supra) was applicable only to a complaint case, that too in pre-summoning stage, and here the parties have undertaken a long journey of litigation, wherein the charge-sheet was submitted after investigation and accused persons were summoned to face the trial. Learned counsel for respondent no. 2 further contended that if the order of revisional court is set aside at this stage, the same will tantamount to putting the clock back, which is not permissible in law. The aforesaid doubts, as raised by learned counsel for respondent no. 2, were set at rest by Hon’ble Apex Court in Mohit alias Sonu and another vs State of Uttar Pradesh and another, (2013) 7 SCC 789 . It will be useful to reproduce paragraph no. 34 of the said ruling. The same reads as under: “Indisputably, a valuable right accrued to the appellants by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then it was incumbent upon the Revisional Court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 Cr.P.C.” 6) It will also be appropriate to reproduce here the observations made by the Hon’ble Apex Court in Mukkapati Nagaswara Sastri vs S.S. Satyanarayan, (1981) 1 SCC 62 . Relevant extract of said ruling is reproduced hereinbelow: “…..It appears from the impugned order that no notice of the date of hearing was issued to the respondent or his counsel. Relevant extract of said ruling is reproduced hereinbelow: “…..It appears from the impugned order that no notice of the date of hearing was issued to the respondent or his counsel. A note appears to have been added to the impugned order later which reads as follows: It is true that the case has been disposed of without hearing the counsel for the respondent as he could not appear at the time of the hearing because his name was not printed in the cause list. But this is a revision case where the respondent is not entitled to be heard as of right. Having regard to the facts of the case, I do not think any review of the order already passed is necessary. This view taken by the High Court is manifestly contrary to the audi alteram partem rule of natural justice which was applicable to the proceedings before the High Court. On this short ground we think that the order of the High Court does not deserve to be maintained……..” 7) The ruling of Raghu Raj Singh Rousha vs M/S. Shivam Sundaram Promoters Private Limited and another, (2009) 1 SCC (Cri) 801 was quoted with approval in Manharibhai Muljibhai Kakadia’s case (supra), wherein it was held that not only an accused but also an affected person (prejudiced) is required to be heard by a Revision Court. 8) It is accordingly, held that the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. The persons who are arraigned as accused in a criminal proceedings have a right to be heard in criminal revision. 9) In view of the above proposition of law, the impugned order dated 27.08.2010, passed by learned Revision Court, in criminal revision no. 61 of 2010 cannot sustain and is liable to be set aside, and is, accordingly, set aside. As a consequence thereof, the summoning order dated 10.01.2011, passed by learned Special Judicial Magistrate (CBI), Dehradun, is also set aside. The Revision Court shall implead the applicants as party in the criminal revision, hear the matter afresh and pass an appropriate order in accordance with law at an early date. 10) With the directions as above, both the applications / petitions under Section 482 of Cr.P.C. are finally disposed of.