Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 471 (UTT)

Ashwani Sharma v. State of Uttarakhand

2023-08-16

RAVINDRA MAITHANI

body2023
JUDGMENT : Since common question of facts involved in both these writ petitions, they are heard together and are being decided by this common judgment. 2. The challenge in these petitions are made to the following :- (i) The judgment and order dated 26.09.2017, passed in Criminal Revision No.45 of 2013, Himalayan Institute Hospital Trust, Jolly Grant, Dehradun vs. State of Uttarakhand and others, by the court of 3rd Additional Sessions Judge, Dehradun, by which, an order dismissing complaint dated 02.02.2013, passed by the court of 1st Additional Chief Judicial Magistrate, Dehradun (“the revision”) was set aside and that matter was remanded back for further hearing and further inquiry, and; (ii) Order dated 16.12.2017, passed in Misc. Case No.6022 of 2010, Himalayan Institute Hospital Trust, Jolly Grant, Dehradun vs. Lilu Kumar and others, by the court of 2nd Additional Chief Judicial Magistrate, Dehradun (“the case”). This order was passed pursuant to the order dated 26.09.2017, passed in the revision. By order dated 16.12.2017, by which, the petitioner Lilu Kumar and Bank of Baroda, International Business Branch, New Delhi have been summoned to answer the accusation under Sections 409, 120-B of The Indian Penal Code. 3. Heard learned counsel for the parties and perused the record. 4. One of the grounds taken by the petitioner Lilu Kumar is that in the revision the petitioners have not been served with the notice. They have never been afforded an opportunity of hearing. The service was not done as per the provisions as contained in the Code of Criminal Procedure, 1973 (“the Code”). Therefore, it is the case of the petitioners that the order dated 26.09.2017 is not as per law. 5. The petitioner Ashwani Sharma has raised other grounds to challenge the impugned order dated 26.09.2017 and 16.12.2017. 6. Learned counsel for the petitioner Smt. Lilu Kumar, would argue that the impugned order dated 26.09.2017, passed in the revision is bad because the petitioner Smt. Lilu Kumar has never been served a notice. She has never been afforded an opportunity of hearing, which is in violation of Section 397 read with 401 of the Code. 7. Learned counsel appearing for the respondent no.2, Himalayan Institute Hospital Trust (“the complainant”) concedes despite that notices were not served on the petitioner Smt. Lilu Kumar. 8. She has never been afforded an opportunity of hearing, which is in violation of Section 397 read with 401 of the Code. 7. Learned counsel appearing for the respondent no.2, Himalayan Institute Hospital Trust (“the complainant”) concedes despite that notices were not served on the petitioner Smt. Lilu Kumar. 8. In the instant case, it is admitted that the petitioner Smt. Lilu Kumar was never served with a notice in the revision. It per se makes the order dated 26.09.2017, passed in the revision bad in the eyes of law. The order-sheet of the revision has been filed by the petitioner Smt. Lilu Kumar. It shows that on 15.10.2014, the Court had once presumed service sufficient on the petitioner Smt. Lilu Kumar with the help of Section 27 of The General Clauses Act, 1897. The Court had on that date observed that the revision would be heard ex parte. But, the facts remain that thereafter, on 28.05.2015, on an application filed, the court in revision had directed that the notice on petitioner Smt. Lilu Kumar be published in the newspaper. Thereafter, the order-sheet does not reveal that ever the notice was published or service was deemed sufficient thereafter. 9. The above chronology reveals that though on 15.10.2014, the court in revision had decided to proceed ex parte against the petitioner Smt. Lilu Kumar, but again on 28.05.2015, the Court had directed issuance of notice by publication in the newspaper, which was never done. Does it mean that the service was not sufficient on the petitioner Smt. Lilu Kumar, as argued on behalf of her and as admitted by the respondent no.2, the complainant? 10. The order taking cognizance dated 16.12.2017 is a consequent order pursuant to the order dated 26.09.2017, passed in the revision. A criminal revision may not be decided without affording an opportunity of hearing to the accused. Section 401(2) CrPC reads as follows:- “401. High Court's powers of revision.— (1) ………………………………………. (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.” 11. Since, it is admitted on behalf of the respondent no.2 (“the complainant”) that notices were not served on the petitioner Smt. Lilu Kumar. This Court is not required to deliberate on those issues. Since, it is admitted on behalf of the respondent no.2 (“the complainant”) that notices were not served on the petitioner Smt. Lilu Kumar. This Court is not required to deliberate on those issues. On this ground alone the impugned order dated 26.09.2017, passed in the revision is liable to be set aside and as a consequence of it, the summoning order dated 16.12.2017 is also liable to be set aside. 12. Accordingly, both the writ petitions are allowed. The order dated 26.09.2017, passed in the revision as well as the order dated 16.12.2017 are set aside. The matter is remanded back to the revisional court to decide the revision afresh after affording an opportunity of hearing to the petitioners. 13. Learned counsel for the parties would submit that this Court may fix a date for hearing in the revision, on which, the parties may remain present. 14. Both the parties agreed that on 04.10.2023, they would appear in the revision before the revisional court. 15. Both the petitioners as well as the respondent no.2, the complainant; shall appear before the revisoinal court on 04.10.2023, when the revision shall be taken up for hearing. 16. This Court has not adjudicated on merits of the case. All the points that the parties intend to raise, are free to be raised in the revision or in the subsequent proceedings.