C482/154/2009 of VIDYA RAM AND ORS Vs NAVIN MEHRA

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 154 of 2009

Vidya Ram and others …….……. Applicantsversus

Navin Mehra …………. Respondent

Mr. H.S. Dhillon, Advocate for the applicants. Mr. S.K. Mandal, Advocate for the respondent.

U.C. Dhyani, J. (oral)

By way of present application / petition, moved under Section 482 of Cr.P.C., the applicants seek to quash the order dated 10.02.2009, passed by Sessions Judge, Udham Singh Nagar in criminal revision no. 12 of 2009, Navin Mehra vs Vidya Ram and others.

2) The complainant (respondent herein) filed an application under Section 156(3) of Cr.P.C. against the applicants before the Chief Judicial Magistrate, Udham Singh Nagar, who after summoning the police report, rejected the said application, vide order dated 12.01.2009. Aggrieved against the order dated 12.01.2009, the respondent preferred criminal revision before the Sessions Judge, Udham Singh Nagar, who allowed the criminal revision and remitted the matter, vide impugned judgment and order dated 10.02.2009. Feeling aggrieved against the same, present application under Section 482 of Cr.P.C. was moved by the applicants.

3) The sole grievance of the applicants is that learned Sessions Judge passed the impugned order without affording an opportunity of hearing to them, which was in violation of Section 399(2) of Cr.P.C., wherein it is stated that no order under this Section shall be made to the prejudice of accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. This fact is under no dispute that the applicants were not made party in the criminal revision no. 12 of 2009, and the impugned order was passed only after hearing learned D.G.C. (Criminal).

4) The sole question for consideration, therefore, is whether suspect is entitled to hearing by the revisional court in revision preferred by the accused persons. Hon’ble Apex court considered the same in catena of decisions including Chandra Deo Singh vs Prokasb Chandra Bose and another, (1964) (1) SCR 639; Vadilal Panchal vs Dattatraya Dulaji Ghadigaonker and another, (1961) 1 SCR 1; P. Sundarrajan and others vs R. Vidhya Sekar (2004) 13 SCC 472; A.N. Santhanam vs K and langovan 2011 (2) JCC 720 (SC) and Manharibhai Muljibhai Kakadia and another vs Shaileshbhai Mohanbhai Patel and others, 2013 (1) NCC 168.

5) Paragraph 58 of the judgment rendered by the Hon’ble Apex court in Manharibhai Muljibhai

Kakadia’s case (supra) brings down the curtain on the whole controversy. The said paragraph is being reproduced here-in-below for convenience:

“58. We are in complete agreement with the view expressed by this Court in Sundarrajan (supra), Raghu Raj Singh Rousha (supra) and A.N. Santhanam (supra). We hold, as it may be, that in 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 the following process contemplated under Section 202 of the Code, the accused or 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 revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have right to be heard in such revision petition. This is plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate disclaiming 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 toany 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.”

It is accordingly, held that the accused or

person who is suspected to have committed crime is entitled to hearing by the revisional court. The persons who are arraigned as accused in complaint have right to be heard in criminal revision.

In view of the above proposition of law, the

impugned order dated 10.02.2009 cannot sustain and is liable to be set aside, and is, accordingly, set aside. It is directed that the revisional court shall implead the applicants as party in the criminal revision, will issue notices to them, hear the matter afresh and pass an appropriate order in accordance with law.

8) With the observations as above, application / petition under Section 482 of Cr.P.C. is finally disposed of.

Dt. August 29, 2013. Negi

(U.C. Dhyani, J.)