C482/993/2009 of TEJ PAL AND ORS Vs SHRI RAJU

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

-Criminal Misc. Application (C482) No. 993 of 2009

Tej Pal and others

…….……. Applicants

versus

Shri Raju …………. Respondent

Mr. Tapan Singh, Advocate for the applicants. Mr. Parikshit Saini, 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 15.09.2008, passed by Sessions Judge, Haridwar in criminal revision no. 379 of 2008, Raju vs State as well as consequential order dated 11.11.2008, passed by I Addl. Chief Judicial Magistrate, Haridwar, in criminal case no. 386 of 2007, Raju vs Tejpal and others, under Sections 323, 324, 506 of IPC and the one under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2) Complainant-respondent filed an application under Section 156(3) of Cr.P.C. in the court of I Addl. Chief Judicial Magistrate, who after hearing the complainant-respondent found that no case was made out against the applicants and dismissed the application

filed by the complainant-respondent, vide order dated 19.10.2004. Aggrieved against said order, respondent filed criminal revision before Sessions Judge, Haridwar, who allowed the criminal revision and remanded the matter with the direction upon learned Addl. Chief Judicial Magistrate to decide the application under Section 156(3) of Cr.P.C. in accordance with law. Learned Addl. Chief Judicial Magistrate, thereafter directed the Station Officer concerned to lodge the FIR against the applicants, vide order dated 08.02.2005. Station Officer, Pathri lodged FIR on 20.02.2005. Investigating Officer investigated the case and submitted final report in the matter. The complainant-respondent filed objections against filing of final report. Learned Judicial Magistrate after hearing the objections on final report, passed the order converting the application into complaint case and proceeded to record statement under Section 200 Cr.P.C. Learned Addl. Chief Judicial Magistrate found that no case was made out against the applicants in respect of offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and summoned them under Sections 323, 324, 504 of IPC. Aggrieved against the said order dated 15.07.2008, respondent filed criminal revision before the Sessions Judge, Haridwar, who transferred the case to Addl. Sessions Judge / III F.T.C., Haridwar. Learned revision court remanded the matter to the lower court to reconsider the complaint under the

provisions of S.C.S.T. Act and pass fresh order. The present applicants were not impleaded as respondents in the said revision. Criminal revision was decided without calling upon the applicants to advance their arguments. According to the applicants impugned order dated 15.09.2008 is contrary to law and should, therefore, be quashed. Feeling aggrieved, applicants challenged the said order dated 15.09.2008, by filing present application under Section 482 of Cr.P.C. before this Court.

3) The sole grievance of the applicants is that learned Addl. 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. 379 of 2008, and the impugned order was passed only after hearing learned A.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 Prokash 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 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.”

6) 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.

7) In view of the above proposition of law, the impugned order dated 15.09.2008 and consequential order dated 11.11.2008 cannot sustain and are liable to be set aside, and are, 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. September 06, 2013. Negi

(U.C. Dhyani, J.) [