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2014 DIGILAW 914 (HP)

Gian Singh v. State of Himachal Pradesh

2014-07-16

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J.(Oral): Challenge herein is to the order dated 7.1.2014 passed by learned Sessions Judge, Kinnaur at Rampur in Criminal Revision No.9 of 2013. 2. It is seen from the impugned order that on the revision petition preferred by the petitioner himself against the order dated 14.6.2013, Annexure P-2, passed by Sub- Divisional Magistrate, Nichar at Bhaba Nagar, District Kinnaur in the proceedings under Section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’ in short), learned Sessions Judge has accepted the revision petition and quashed the order and remanded the case for fresh disposal to the Sub-Divisional Magistrate with a direction to afford an opportunity of being heard to the parties and also to lead evidence in support of their respective claims qua the possession of the land in dispute. 3. The grouse of the petitioner, as disclosed from the grounds raised in this petition and also highlighted by learned counsel, seems to be that for want of compliance of the provisions contained under Sections 145(1), 145(2) and 145(3) of the Code by the Sub-Divisional Magistrate, the entire proceedings stand vitiated, therefore, the case could have not been remanded for fresh disposal, as according to the petitioner, the proceedings which stand vitiated on account of non-compliance of the provisions ibid, mandatory in nature, the complaint under Section 145 of the Code cannot be entertained at this stage. 4. In support of his contention, learned counsel has placed reliance on the judgment passed by a Co-ordinate Bench of this Court in Amarjot Singh Versus State of Himachal Pradesh, 2013(1) Criminal Court Cases 199. This judgment is distinguishable on facts because in that case the violation of Section 145(1) of the Code was not taken note of by learned Additional Sessions Judge and contrary to it, upheld the order passed by the Sub-Divisional Magistrate. In the case in hand, the order passed by the Sub-Divisional Magistrate has been quashed and the case remanded for fresh disposal after affording the parties due opportunity of being heard including production of evidence. Interestingly, even it was one of the grounds raised by the petitioner himself in the revision petition filed in the Court of learned Sessions Judge, Kunnaur at Rampur that he has not been given an opportunity of being heard before passing the order impugned in that petition. Interestingly, even it was one of the grounds raised by the petitioner himself in the revision petition filed in the Court of learned Sessions Judge, Kunnaur at Rampur that he has not been given an opportunity of being heard before passing the order impugned in that petition. Now when learned Sessions Judge has quashed the order so passed being violative of the principles of natural justice, it is not understandable as to what complaint the petitioner can have against the order under challenge in this petition whereby the case has been ordered to be remanded to learned Sub-Divisional Magistrate for fresh disposal after affording the parties the opportunity of being heard. 5. The grouse of the accused-petitioner, as disclosed from the grounds of revision petition preferred before learned Sessions Judge, Rampur is that the Sub- Divisional Magistrate has not afforded him an opportunity of being heard. One should not condemn unheard, is the rule. The appropriate course available to learned Sessions Judge was to have remanded the case for fresh disposal after affording the parties the opportunity of being heard including production of evidence. 6. Having gone through the record and taking into consideration the contentions raised by learned counsel on both sides, in the considered opinion of this Court, learned Sessions Judge has passed a well reasoned order after taking into consideration all pros and cons of the case. The case has been remanded to the Sub-Divisional Magistrate for fresh decision after affording the parties the opportunity of being heard and also to produce the evidence. The petitioner, therefore, cannot be said to be aggrieved in any manner whatsoever for the reason that during the course of hearing in the case before learned Sub-Divisional Magistrate, he is at liberty to raise all just and reasonable grounds in his defence including the question of noncompliance of the provisions contained under Sections 145(1), 145(2) and 145(3) of the Code and also that on account of that the proceedings are vitiated. So far as the impugned order is concerned, this Court finds no jurisdictional or procedural error having been committed by learned Sessions Judge while passing the same. The impugned order cannot also be said to be terse or perverse, therefore, calls for no interference by this Court in the exercise of the powers vested under Section 482 of the Code. So far as the impugned order is concerned, this Court finds no jurisdictional or procedural error having been committed by learned Sessions Judge while passing the same. The impugned order cannot also be said to be terse or perverse, therefore, calls for no interference by this Court in the exercise of the powers vested under Section 482 of the Code. For all the reasons hereinabove, there is no merit in this petition and the same, is accordingly dismissed. Pending applications, if any, shall also stand disposed of.