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2018 DIGILAW 565 (RAJ)

Ramjan Khan v. State of Rajasthan

2018-02-16

SABINA

body2018
JUDGMENT Sabina, J. - Petitioners have filed this revision petition under Section 397 Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') read with Section 401 Cr.P.C. challenging the order dated 25.05.2016, whereby, revision petition filed by respondent No.2 was allowed and the order passed by the Magistrate dated 15.06.2003, was set aside. 2. Learned counsel for the petitioners has submitted that FIR in question has been registered against the petitioners at the instance of respondent No.2. After thorough investigation of the case, negative final report was submitted by the Investigating Agency. Respondent No.2 preferred a protest petition. Magistrate vide order dated 15.06.2013 accepted the cancellation report and dismissed the protest petition filed by respondent No.2. Aggrieved against the said order, respondent No.2 preferred a revision petition. The Court of Revision without issuing notice to the petitioners set aside the order passed by the Magistrate and remanded the matter to the Magistrate for a fresh decision vide impugned order dated 25.05.2016. The Court of Revision was required to afford an opportunity of hearing to the petitioners before setting aside the order passed by the Magistrate. In support of his arguments, learned counsel has placed reliance on the judgment of the Honble Supreme Court in Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and Others, 2012 (4) R.C.R. (Criminal) 689 wherein, it was held as under:- "We are in complete agreement with the view expressed by this Court in P. Sundarrajan1, Raghu Raj Singh Rousha and A. N. Santhanam. We hold, as it must 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 dismissing 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." 3. Learned State counsel and learned counsel for respondent No.2 have opposed the petition. Learned counsel for respondent No.2 has submitted that the Court of Revision has merely remanded the case to the Magistrate for a fresh decision, and thereafter, cognizance order has been passed by the Magistrate. 4. Facts in the present case are not in dispute. It is a settled proposition of law that the Court of Revision is required to afford an opportunity of hearing to the concerned party at the time of upsetting the order passed in favour of the said party by the Magistrate. 5. In the present case, admittedly, notice was not issued to the petitioners by the Court of Revision nor the petitioners had been arrayed as respondents by the complainant. Court of Revision after hearing the complainant and the State counsel allowed the revision petition and set aside the order passed by the Magistrate dated 15.06.2013. The order dated 15.06.2013 had been passed in favour of the petitioners. Court of Revision was required to give a hearing to the petitioners before setting aside the order passed in their favour. 6. Accordingly, this petition is allowed. Impugned order dated 25.05.2016 is set aside. Court of Revision is directed to pass a fresh order in accordance with law after affording an opportunity of hearing to the petitioners. Parties are directed to appear before the Court of Revision on 05.03.2018.