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Madhya Pradesh High Court · body

2020 DIGILAW 200 (MP)

Jai Prakash Dubey v. Vipin

2020-02-07

ANAND PATHAK

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ORDER 1. The instant petition under section 482 of CrPC is for recalling the order dated 23.3.2017 passed in Criminal Revision No. 193/2011 whereby the criminal revision preferred by the respondents has been allowed without hearing the petitioner. 2. Precisely stated facts of the case are that an FIR has been registered at the instance of the petitioner against the respondents because on 21.1.2010 when petitioner was coming back to his house after casting his vote, he got surrounded by accused and they not only hurled verbal abuses, but also started hitting the petitioner with deadly weapons due to which petitioner suffered serious injuries. FIR vide crime No. 14/2010 was registered and after investigation charge-sheet was filed. Trial Court framed the charges under sections 452, 147, 307/149 and 323/149 of IPC. Against the order of framing of charge revision was preferred by some of the respondents and without giving opportunity of hearing ex parte revision petition was allowed on 23.3.2017, therefore, present petition has been filed. 3. At this juncture, learned counsel for the petitioner submits that the revision was heard and decided without giving an opportunity of hearing to the petitioner who was complainant in the case and in absence of complainant, revisional order could not have been passed, therefore, as per the mandate of the apex Court in the case of Babloo Pasi v. State of Jharkhand and anr. reported in (2008) 13 SCC 133 and Raghu Raj Singh Rousha v. M/s. Shivam Sundaram Promoters (P) L and anr. reported in (2009) 2 SCC 363 . 4. It is further submitted that although on merits also he has a good case, but since the primary question involved is whether an opportunity of hearing is required to be given to the complainant or not, therefore, he is focusing on said question. It is further submitted that under the extraordinary jurisdiction of this Court to prevent miscarriage of justice, this Court can cause interference while recalling the order passed in criminal revision referred above. 5. Learned counsel for the respondents opposed the prayer and submits that no requirement exists to hear the complainant and no illegality has been caused if complainant is not heard. 6. 5. Learned counsel for the respondents opposed the prayer and submits that no requirement exists to hear the complainant and no illegality has been caused if complainant is not heard. 6. Learned counsel for the respondents refers the phrase ejusdem generis and submits that relying upon the said principle of construction the Allahabad High Court in Rasheed Khan and another v. State of U.P. and another, reported in 2018 Cri. L.J. 2135 held that the word "any other person" is in relation to accused only and it does not signify complainant. Learned counsel also placed reliance on the decision of Apex Court in the case of A.K.Subbaiah v. State of Karnataka, reported in 1987 SCC (Cri) 768 and the decision of Allahabad High Court In the Matter of Application under section 482, CrPC-Ranvir Singh reported in 1980 SCC OnLine All 375. 7. Heard learned counsel for the parties at length and perused the record. 8. Core question involved in the case is that whether the complainant is entitled for opportunity of hearing in the revisional proceeding specially in the present criminal revision or not and another question is that whether this Court in its extraordinary jurisdiction under section 482 of CrPC can enter into the arena by recalling the order dated 23.3.2017 passed in Criminal Revision No. 193/2011 due to the bar of section 362 of CrPC 9. So far as the question regarding opportunity of hearing is concerned, although learned counsel for the respondents has referred the judgment in the case of Rasheed Khan (supra) and tried to press the legal position that complainant is not required to be heard in revisional proceeding as per the interpretation of section 401(2) of CrPC made by the learned Judge of Allahabad High Court whereby on the principle of ejusdem generis learned Judge has interpreted "any other person" used in the above said clause to include only accused and the persons placed like him who can put defence, but the said Court has not taken into consideration the judgment rendered in the case of Babloo Pasi (supra) which categorically mandates the law in the following terms: "12......... From a bare reading of the proviso to the section, it is plain that in exercise of its revisional jurisdiction the High Court cannot pass an order, prejudicial to any person without affording him a reasonable opportunity of being heard. 13. From a bare reading of the proviso to the section, it is plain that in exercise of its revisional jurisdiction the High Court cannot pass an order, prejudicial to any person without affording him a reasonable opportunity of being heard. 13. At this juncture, it would be profitable to note that section 54 of the Act also prescribes the procedure to be followed while dealing with inquiries, appeals and revisions under the Act. Sub-section (2) thereof stipulates that save as otherwise expressly provided under the Act, the procedure to be followed in hearing revisions under the Act, shall be as far as practicable in accordance with the provisions of the Code of Criminal Procedure, 1973 (for short 'the Code'). Sub-section (2) of section 401 of the Code contemplates that no order under the said 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. 14. Furthermore, by now it is well settled that save in certain exceptional situations, the principle of audi alteram partem mandates that no one shall be condemned unheard. It is a part of rules of natural justice and the soul of natural justice is `fair play in action', which demands that before any prejudicial or adverse order is passed or action is taken against a person, he must be given an opportunity to be heard. 15. The question for consideration is that when the statutory provisions mandate and principles of natural justice demand a pre-decisional hearing, whether or not the High Court was justified in not granting an opportunity of hearing to the appellant/complainant ? In our opinion, having regard to the nature of controversy before the High Court and the scheme of the relevant statutory provisions whereunder the High Court was exercising its jurisdiction, the `fairness in action' did demand that the complainant was given an opportunity of hearing in the revision petition preferred by the accused. Moreover, he was impleaded as a party respondent and was obviously prejudiced by the order passed by the High Court when the accused was declared to be a juvenile. We have, therefore, no hesitation in holding that the High Court was clearly in error in reversing the order passed by the Board without giving an opportunity of hearing to the appellant. We have, therefore, no hesitation in holding that the High Court was clearly in error in reversing the order passed by the Board without giving an opportunity of hearing to the appellant. Accordingly, we uphold the contention of learned counsel for the appellant that the order of the High Court deserves to be set aside on this short question alone." Since this mandate of apex Court has not been considered by the Allahabad High Court while deciding the case in Rasheed Khan (supra), this Court is of the considered opinion that regretfully the law laid down by the Allahabad High Court ignored the mandate of the apex Court. Even otherwise in Raghu Raj Singh Rousha (supra) same mandate has been reiterated by the apex Court. 10. Division Bench of this Court in the case of Uday Bhan v. State of M.P. and anr. [reported in 2014(I) MPWN 85 ] has taken into account the term 'Victim' as has been defined in section 2(wa) of CrPC and opined that victim is an aggrieved person not only in crime, but also in an investigation, enquiry, trial, appeal, revision, review and also the proceedings by which the inherent powers of this Court under section 482 of CrPC are invoked. Said law enunciated by the Division Bench of this Court is binding over this Court, therefore, this Court has no hesitation to hold that in revisional jurisdiction complainant needs to be heard. 11. Now the question comes for consideration is whether in extraordinary jurisdiction under section 482 of CrPC any interference can be caused in revisional order and/or revisional order can be recalled due to the bar of section 362 of CrPC This aspect has been explained by the apex Court in the case of Asit Kumar Kar v. State of West Bengal and ors. reported in (2009) 2 SCC 703 in the following terms: "Three is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits when there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. While in a review petition the Court considers on merits when there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh and ors., (2007) 11 SCC 374 cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences." 12. This spirit has been further reiterated by the apex Court in the case of Vishnu Agarwal v. State of Uttar Pradesh and anr. reported in (2011) 14 SCC 813 in the following terms: "6. In our opinion, section 362 cannot be considered in a rigid and overtechnical manner to defeat the ends of justice. As Brahaspati has observed : "Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare tu Dharmahaani Prajayate" which means: "The Court should not give its decision based only on the letter of the law. For if the decision is wholly unreasonable, injustice will follow." 13. Beside that, this Court in the case of Gulam Ahmed v. Haji Maulana Mohammad Zahoor, reported in 1997(2) JLJ 185 held that powers under section 482 of CrPC can and should be exercised by the High Court for recalling the judgment in case hearing is not to the accused and the case falls within one of the three conditions laid down under section 482 of the Code. 14. In the above legal position, it appears that valuable right of hearing of petitioner was denied and apex Court mandates that in such exigencies when opportunity of hearing is denied to the party, then proceedings under section 482 of CrPC are maintainable and order can be recalled. Therefore, this Court intends to allow the petition and recall the order dated 23.3.2017 passed in Criminal Revision No. 193/2011. 15. Resultantly, petition stands allowed and order dated 23.3.2017 passed in Criminal Revision No. 193/2011 is hereby recalled. Criminal revision is restored and placed to its original position and it be placed for hearing in the month of March, 2020 for further hearing in accordance with law on merits. 16. 15. Resultantly, petition stands allowed and order dated 23.3.2017 passed in Criminal Revision No. 193/2011 is hereby recalled. Criminal revision is restored and placed to its original position and it be placed for hearing in the month of March, 2020 for further hearing in accordance with law on merits. 16. It is made clear that this Court has not expressed any opinion on the merits of the case in respect of criminal revision and the hearing shall be proceeded objectively as per law without being influenced by any observation of this Court.