C482/58/2012 of ISHWAR Vs STATE OF UTTARAKHAND AND ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 58 of 2012

…………. Applicant

Ishwar

versus

State of Uttarakhand & another

…………. Respondents

Mr. Tapan Singh, Advocate for the applicant.

Mr. Pramod Tiwari, Brief Holder for the State / respondent no. 1. Mr. Nagesh Aggarwal, Advocate for respondent no. 2.

with

-Criminal Misc. Application (C482) No. 907 of 2011

…………. Applicants

Gyanendra Pal Singh & another

versus

State of Uttarakhand & another

…………. Respondents

Mr. Navneet Kaushik, Advocate for the applicants.

Mr. Pramod Tiwari, Brief Holder for the State / respondent no. 1. Mr. Nagesh Aggarwal, Advocate for respondent no. 2.

with

-Criminal Misc. Application (C482) No. 919 of 2011

…………. Applicant

Vinod Singh

versus

State of Uttarakhand & another

…………. Respondents

Mr. Parikshit Saini, Advocate for the applicant.

Mr. Pramod Tiwari, Brief Holder for the State / respondent no. 1. Mr. Nagesh Aggarwal, Advocate for respondent no. 2.

U.C. Dhyani, J. (oral)

The applicants, by means of aforementioned applications under Section 482 of Cr.P.C., seek to quash the order dated 10.03.2010 passed as against the applicants by Addl. Sessions Judge / I F.T.C., Roorkee, District Haridwar in criminal revision no. 289 of 2010, Rajbir Singh vs State of Uttarakhand and further, to

quash the order dated 08.04.2010, passed as against the applicants by Judicial Magistrate, Roorkee, District Haridwar in criminal complaint case no. 1063 of 2010 (old no. 2076 of 2009), Rajbeer Singh vs Gyanendra Pal Singh Tomar and others.

2) Respondent no. 2 filed criminal compliant case against six accused persons, including the applicants, in the court of J.M., Roorkee. Learned trial court dismissed the criminal complaint case as against the accused persons in respect of offences punishable under Sections 420, 506, 504, 406 IPC, vide order dated 12.08.2009. Aggrieved against the same, criminal revision was preferred by respondent no. 2, which criminal revision was decided, vide order dated 10.03.2010 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 420, 504, 506 of IPC.

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) read with Section 401(2) 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. 289 of 2009, 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 10.03.2010 and 08.04.2010,

cannot sustain and are liable to be set aside, and are, accordingly, set aside. It is directed that the revisionist shall implead the accused persons, including the applicants, as party, in the criminal revision before the revisional court, who in turn will issue notices to them, hear the matter afresh and pass an appropriate order in accordance with law.

8) With the directions as above, all the applications filed under Section 482 of Cr.P.C., are finally disposed of.

With the directions as above, all the

Dt. March 16, 2017. Negi

(U.C. Dhyani, J.)