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2020 DIGILAW 271 (MP)

Doujiram v. Anod Singh

2020-02-19

S.A.DHARMADHIKARI

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JUDGMENT S A Dharmadhikari, J. - In this petition, under section 482 of the Cr.P.C., petitioner has assailed the order dated 23/11/16 passed in Cr.R No.259/2014 by I Additional Judge to the Court of I Additional Sessions Judge, Bhind, whereby the order dated 25/11/2014 passed in Criminal (Complaint) Case No.2023/14, so far as it relates to the petitioner, has been quashed and the matter has been remanded to the trial Court for additional enquiry with regard to the applicant either himself or through any other Magistrate after affording opportunity of hearing to the complainant and for passing an order afresh. 2. Brief facts leading to filing of this case are that a complaint was filed in respect of offences punishable under sections 420, 465, 476, 468, 471, 120B, 472 and 506B of the IPC against the petitioner and co-accused. The trial Court after examining the complaint took cognizance against the coaccused but dismissed the complaint so far as it related to the present petitioner. Aggrieved, the complainant preferred a revision which has been allowed by the order impugned. 3. Learned counsel for the petitioner submits that the revisional Court has quashed the order of learned trial Court without providing any opportunity of hearing to the petitioner, nor any notice was issued to him, which is evident from the order dated 26/10/2016 (Annexure P/4) wherein the revisional Court has observed that since the petitioner was not present before the trial Court, there was no need to issue any notice to him. As such, the order impugned has been passed ex parte which is in contravention to the dictum of the Apex Court in the case of Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel, 2012 10 SCC 517 . 4. In response, learned counsel for the respondent has opposed the prayer and supported the order impugned passed by the revisional Court. 5. Heard, learned counsel for the parties. 6. It is apparent from the record of proceedings of the revisional Court, particularly order dated 26/10/2016 that no notice was issued to the petitioner for want of his appearance before the trial Court. In this behalf, the Apex Court in the case of Manharbhai (Supra) has held as under:- We are in complete agreement with the view expressed by this Court in P. Sundarrajan Vs. R. Vidhya Sekar, 2004 13 SCC 472 , Raghu Raj Singh Rousha Vs. In this behalf, the Apex Court in the case of Manharbhai (Supra) has held as under:- We are in complete agreement with the view expressed by this Court in P. Sundarrajan Vs. R. Vidhya Sekar, 2004 13 SCC 472 , Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) Ltd., 2009 2 SCC 363 and A. N. Santhanam Vs. K.Elangovan, 2012 12 SCC 321 . 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. 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. (Emphasis supplied) 7. In the light of the aforesaid, the impugned order cannot be sustained. The same is, accordingly, set aside. The matter is remanded to the revisional Court for decision afresh after affording due opportunity of hearing to both the parties in accordance with law. The petition, accordingly, stands disposed of.