Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 829 (RAJ)

Mahant Prakash Das v. State of Rajasthan

2023-04-13

CHANDRA KUMAR SONGARA

body2023
ORDER : Chandra Kumar Songara, J. Instant petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred on behalf of accused-petitioners against the order dated 18.07.2017 passed by the Court of Additional Sessions Judge, Rajgarh District Alwar, in Criminal Revision No.14/2013, titled as Prabhudayal Mahajan & Others v. State of Rajasthan & Others, whereby the revision petition filed by complainants-petitioners was allowed and the order dated 09.03.2013 passed by the Court of Additional Chief Judicial Magistrate, Rajgarh District Alwar dismissing the protest petition filed by the complainants-petitioners, was set aside and the matter was remanded back for adjudication on the basis of Final Report as well as evidence. 2. It has been submitted by learned counsel appearing for the accused-petitioners, that the impugned order passed by the Revisional Court below is against the settled position of law as it did not consider the very aspect of the matter that the Investigating Officer has submitted the Final Report in negative form after conducting proper investigation. Counsel has further submitted that the service upon the petitioner No.5, namely Bharat Lal was never effected and the impugned order was passed in his absence without giving him any opportunity of hearing. Counsel has also submitted that Sub-section (2) of Section 401 of Cr.P.C. clearly states that no order shall be passed against the accused until due opportunity of hearing is afforded to him. Counsel has contended that the complainant scratched himself to make out a false case to malafidely harass the petitioners, the present matter is clearly outcome & counterblast of landlord and tenant dispute and the Investigating Officer as well as the learned Court below was of the clear view that the case lodged by the complainant was false. Lastly, counsel has prayed that the present petition may be allowed, the impugned order dated 18.07.2017 (Annexure-1) passed by the Court of Revision be quashed & set aside and the order dated 09.03.2013 (Annexure2) passed by the Court of Additional Chief Judicial Magistrate, Rajagarh, be upheld. 3. Lastly, counsel has prayed that the present petition may be allowed, the impugned order dated 18.07.2017 (Annexure-1) passed by the Court of Revision be quashed & set aside and the order dated 09.03.2013 (Annexure2) passed by the Court of Additional Chief Judicial Magistrate, Rajagarh, be upheld. 3. In support of his submissions, learned counsel appearing for the accused-petitioners, has placed reliance upon the following judgments i.e. (i) Priyanka Srivastava and another v. State of U.P. and Others, 2015 (1) WLC (SC) Cri.738, ( ii) Islam Khan and anothe v. State of Rajasthan & Others, 2013 WLC (Raj.) UC 685 and (iii) Ramjan Khan v. State of Rajasthan, 2018 (2) WLC (Raj.) UC 307. 4. Learned counsel appearing for the respondent No.1/State, while opposing the petition, has submitted the factual report, which is taken on record. 5. As per aforesaid factual report, in the present case, F.R. No.219/2011 dated 27.12.2011 had been submitted before the Court of A.C.J.M. Rajgarh, District Alwar on 12.01.2011, as the matter was found to be false. 6. Learned counsel appearing for the respondent Nos.2/1 to 2/4, also while opposing the petition, has placed reliance upon the judgment in the case of Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra & Others, (2019) 14 SCC 350 . 7. Heard learned counsel appearing for the parties. Perused the material made available on record as well as the judgments cited herein-above by both the parties. 8. From perusal of impugned order dated 18.07.2017 passed by the Court of Revision, it reveals that the service upon the accused-petitioner No.5, namely Bharat Lal was never effected and the impugned order was passed in his absence without giving him any opportunity of hearing. 9. The only point arising for our consideration is whether the complainant's revision against the dismissal of the complaint, can be decided without giving any opportunity of hearing to the accused-petitioners. 10. The Hon'ble Apex Court in the case of Priyanka Srivastava and another (supra), in Para No.4, has held as under :- "4. ................................Be it noted, the learned Additional Sessions Judge heard the counsel for the respondent No.3 and the learned counsel for the State but no notice was issued to the accused persons therein. 10. The Hon'ble Apex Court in the case of Priyanka Srivastava and another (supra), in Para No.4, has held as under :- "4. ................................Be it noted, the learned Additional Sessions Judge heard the counsel for the respondent No.3 and the learned counsel for the State but no notice was issued to the accused persons therein. Ordinarily, we would not have adverted to the same because that lis is the subject matter in the appeal, but it has become imperative to do only to highlight how these kind of litigations are being dealt with and also to show the respondents had the unwarranted enthusiasm to move the courts. The order passed against the said accused persons at that time was an adverse order inasmuch as the matter was remitted. It was incumbent to hear the respondents though they had not become accused persons. A three-Judge Bench in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and others, (2013) (1) WLC (SC) Cri. 176 : 2012 (10) SCC 517 , has opined that in a case arising out of a complaint petition, when travels to the superior Court and an adverse order is passed, an opportunity of hearing has to be given. The relevant passages are reproduced hereunder:- 46. .......If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence." 11. In the case of Islam Khan and another (supra), in Para No.6, Co-ordinate Bench of the Principal Seat of this Court, has held as under:- "6. In the case of Islam Khan and another (supra), in Para No.6, Co-ordinate Bench of the Principal Seat of this Court, has held as under:- "6. After hearing counsel for the parties, this Court is of the view that revisional Court below has committed a grave error in deciding the revision without affording due opportunity of hearing to the accused-petitioners." 12. Co-ordinate Bench of this Court in the case of Ramjan Kha v. State of Rajasthan, ( supra), in Para No.5, has held as under :- "5. 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." 13. Whereas, the judgment relied upon by the learned counsel appearing for the complainants-respondents No.2/1 to 2/4, fails to advance the case of the present petitioners. 14. Considering the submissions made herein-above and looking to the facts & circumstances of the case, this Court is of the view that the Revisional Court below has committed a grave error in deciding the revision without affording due opportunity of hearing to the petitioner No.5 Bharat Lal. 15. Consequently, the present petition is partly allowed. Impugned order dated 18.07.2017 is set aside. The Court of Revision is directed to pass afresh order without being influenced by any of our observations and decide the same in accordance with law, after affording an opportunity of hearing to the petitioners. The parties are directed to appear before the Court of Revision on 02.05.2023. 16. Miscellaneous application, if any, also stands disposed of.