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2015 DIGILAW 1263 (ALL)

Bablu Singh v. State of U. P.

2015-05-15

RANJANA PANDYA

body2015
JUDGMENT Mrs. Ranjana Pandya,J. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceedings of Complaint Case No. 1022 of 2012, Subhash Singh Patel Vs. Bablu Singh and others under Sections 452, 323, 325, 506, 395, 397 I.P.C., pending before Judicial Magistrate, Court No. 1, Varanasi including impugned order dated 14.8.2012 (Annexure No. 1) passed by Sessions Judge, Varanasi, respondent no.2, order dated 27.7.2012 (Annexure No. 2) as well as order dated 12.9.2012 (Annexure No. 3) passed by the Judicial Magistrate, Court No. 1, Varanasi. 2. Perusal of the record shows that on 25.2.2012 and application was moved by the opposite party no. 2 under Section 156 (3) Cr.P.C. This application was treated as a complaint by the trial court, vide order dated 12.3.2012. After following the procedure as prescribed under the Code of Criminal Procedure, the accused were summoned under Sections 323, 325, 379, 452, 506 I.P.C. on 27.7.2012. Feeling aggrieved by this order, the complainant himself preferred criminal revision (bearing no. 296 of 2012, which was decided on 14.8.2012. 3. Learned counsel for the applicants has submitted that the provisions of 401 Cr.P.C. have not been complied with and since he was prejudiced, he ought to have been heard before the revision was being decided. 4. Section 401 Cr.P.C. reads 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 coferred 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. (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. (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 statisfied 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 revision as a petition of appeal and deal with the same accordingly." 5. Thus, according to the provisions of Section 401 (2) Cr.P.C., no order under this section shall be made to the prejudice to the accused or other person unless he had an opportunity of being heard either personal or by pleader on his own defence. 6. In this context, the counsel for the applicants, has also placed reliance on 2012(10) SCC 517 , Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others, in which it has been held that the provisions of Section 401(2) are mandatory and non-compliance would vitiate the proceedings. 7. Having regard to the aforesaid facts, the order passed on the revision cannot be sustained. Hence, the impugned order dated 14.8.2012 passed by the Sessions Judge, Varanasi in Criminal Revision and also the orders dated 27.7.2012 and 12.9.2012 passed by the Chief Judicial Magistare, Court No. 1, Varanasi are quashed. 8. The District Judge, Varanasi is directed to hear the revision afresh after complying with the provision of Section 401(2) Cr.P.C. 9. With these observations, the present application under Section 482 Cr.P.C. is disposed of.