C482/310/2014 of Mahaveer Singh AND ANOTHER Vs State Of Uttarakhand AND ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 310 of 2014

Mahaveer Singh and another …………. Applicants

versus

State of Uttarakhand & another …………. Respondents

Mr. Ramji Srivastava, Advocate for the applicants. Mr. V.S. Pal, AGA with Mr. V.S. Mahara, Brief Holder for the State / respondent no. 1.

Mr. Bhagwat Mahara, Advocate for respondent no. 2.

U.C. Dhyani, J. (oral)

The applicants, by means of present application / petition under Section 482 of Cr.P.C., seek to quash the impugned order dated 25.01.2011 as well as summoning order dated 31.03.2011, as also the proceedings of criminal complaint case no. 1133 of 2011, Smt. Renu Chaudhary vs Pushpendra Singh and others, under Sections 498A, 323, 504, 506 of IPC and Section ¾ of the Dowry Prohibition Act, pending in the court of Judicial Magistrate I, Dehradun.

2) Respondent no. 2 filed criminal compliant case against four accused persons, including the applicants, in the court of A.C.J.M. III, Dehradun. case Learned trial court having found prima facieagainst Pushpendra (non-applicant), summoned him to face the trial for the offence punishable under Section 495 of IPC, vide order dated 23.07.2010. Aggrieved against the same, criminal revision was preferred by respondent no. 2, which criminal revision was decided, vide order dated 25.01.2011 without hearing the accused

persons. In compliance of the order of learned Addl. Sessions Judge, all the accused persons, including the applicants, were summoned by learned trial court to face the trial for the offences punishable under Sections 495, 498A, 323, 504, 506 of IPC and Section ¾ of the Dowry Prohibition Act.

3) One of the 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 the accused or other persons 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. 206 of 2010, and the impugned order was passed only after hearing learned A.D.G.C. (Criminal).

4) The 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 Prakash 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 following the 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, therefore, inferred on the basis of discussions made in the foregoing paragraphs of this judgment that the learned Revision Court ought to have arrayed accused persons as respondents and should have afforded them an opportunity of hearing before deciding the criminal revision.

7) In view of the above proposition of law, the impugned orders dated 25.01.2011 and 31.03.2011, 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 directions as above, application under Section 482 of Cr.P.C. is finally disposed of.

(U.C. Dhyani, J.)