Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 372 (JHR)

Sushil Kumar Dhandhania v. State of Jharkhand

2016-02-22

PRASHANT KUMAR

body2016
ORDER : 1. This application has been filed for quashing the order dated 28.2.2014, passed by the learned Additional Sessions Judge-I, Deoghar in Criminal Revision No.66 of 2011, whereby and whereunder he set aside the order dated 03.05.2011 and remanded the case in the file of the learned Judicial Magistrate, Deoghar for passing fresh order as per the evidence available on the record. Petitioner further prays for quashing the order dated 16.4.2014, passed by the learned Judicial Magistrate, Deoghar in P.C.R. No.863 of 2008, corresponding to T.R. No.946 of 2014, whereby he took cognizance against the petitioner under Section 406 of the I.P.C. after the remand of the case. 2. It is submitted by the learned counsel for the petitioner that the learned revisional court passed the order without hearing the petitioner, which is violative of Section 401(2) read with Section 399 of the Cr. P.C. Therefore, the learned revisional order as well as the fresh order of cognizance after remand cannot be sustained. 3. Learned counsel appearing for the respondents opposed the aforesaid submission. 4. Having heard the submissions, I have gone through the impugned order dated 28.02.2014, passed by the learned Additional Sessions Judge-I, Deoghar in Criminal Revision No.66 of 2011. From perusal of the same, I find that the aforesaid order has been passed after hearing the counsel for the revisionist, as well as the learned P.P. There is no whisper in the aforesaid order that the petitioner was also heard. It is not out of place to mention that the aforesaid criminal revision was filed by the complainant against the order of the learned Judicial Magistrate, dated 03.05.2011, passed in P.C.R. No.863 of 2008, whereby he dismissed the complaint petition under Section 203 of the Cr. P.C. Thus, if the revisional court is going to set aside the said order, then as per Section 401(2) read with Section 399(2) of the Cr.P.C., it is imperative for it to hear the accused, because certainly the accused is going to be prejudiced by its order. My aforesaid view finds full support from the recent judgment of the Hon'ble Supreme Court in Gurdev Singh Vrs. Surinder Singh and others, reported in (2015) 3 SCC 773 . Paragraph nos.9 and 10 of the above judgment are relevant in this respect, which runs as follow- “9. We find substance in this submission. My aforesaid view finds full support from the recent judgment of the Hon'ble Supreme Court in Gurdev Singh Vrs. Surinder Singh and others, reported in (2015) 3 SCC 773 . Paragraph nos.9 and 10 of the above judgment are relevant in this respect, which runs as follow- “9. We find substance in this submission. Dismissal of the complaint terminates criminal proceedings against the accused. If the complainant carries the matter further by filing a revision and the Sessions Court sets aside the dismissal order and remands the matter to the Additional CJM for fresh enquiry, the complaint is revived. In this connection, it is necessary to refer to Section 401 of the Code which lays down the High Court's powers of revision. Subsection (2) thereof states that: “401. (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.” Section 399 of the Code refers to the Sessions Judge's powers of revision. Subsection (2) thereof states that: “399. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under subsection(1), the provisions of subsections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge.” 10. Thus, it was obligatory on the Additional Sessions Judge to hear the accused before setting aside the order of dismissal of the complaint in his revisional jurisdiction. Of course, once the matter is remanded to the Additional CJM, the accused will have no right of hearing because at preprocess stage, the law does not give him any such right. It is only in the aforementioned situation that the accused is entitled to a hearing.” 4. In view of the aforesaid law laid down by their lordships of the Hon'ble Supreme Court, the impugned order dated 28.2.2014, passed by the revisional court cannot be sustained. Consequently, the subsequent order dated 16.4.2014, passed by the learned Judicial Magistrate, Deoghar in P.C.R. No.863 of 2008, corresponding to T.R. No.946 of 2014 is also not sustainable. 5. In view of the aforesaid law laid down by their lordships of the Hon'ble Supreme Court, the impugned order dated 28.2.2014, passed by the revisional court cannot be sustained. Consequently, the subsequent order dated 16.4.2014, passed by the learned Judicial Magistrate, Deoghar in P.C.R. No.863 of 2008, corresponding to T.R. No.946 of 2014 is also not sustainable. 5. Accordingly, I allow this writ application and quash the impugned order and remit the case in the file of the learned Additional Sessions Judge-I, Deoghar for rehearing the Criminal Revision No. 66 of 2011, after giving full opportunity of hearing to the petitioner. It is made clear that no fresh notice is required to be issued in favour of the petitioner as I hereby direct the petitioner to appear in the court of the learned Additional Sessions Judge-I, Deoghar within 15 days in the aforesaid criminal revision.