C482/313/2013 of LAXMI NARAYAN BHARDWARJ and ANOTHER Vs STATE OF UTTARAKHAND and ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 313 of 2013 (Under Section 482 Cr.P.C.)

Laxmi Narayan Bhardwaj & Another ….…… Applicants

versus

State of Uttarakhand and Another ……. Respondents

Mr. Ankurit Raj David, Advocate holding brief of Mr. D.C.S. Rawat, Advocate for the applicants. Mr. Prem Kaushal, Brief Holder for the State. None is present for the respondent no.2, despite service of notice.

U. C. Dhyani, J. (Oral)

By means of present application under Section 482 of Cr.P.C., the applicants seek to quash the revisional order dated 07.01.2013, passed by learned District and Session Judge Pauri, Camp Kotdwara District-Pauri Garhwal in Criminal Revision No.62 of 2011, “Harish Chandra vs. Laxmi Narayan & another and to quash the entire proceedings of Criminal Case No.131 of 2011, “Harish Chandra vs. Laxmi Narayan & another under Section 323 of IPC, pending before learned Judicial Magistrate, Lansdowne, District-Pauri Garhwal.

2) It is the case in which the accused-applicants were not heard in criminal revision. Learned counsel for the applicants and learned brief holder, therefore, fairly conceded that the accused also ought to have been heard.

3) The question for consideration, therefore, is whether suspect is entitled to hearing by the revisional court in revision preferred by the accused person? 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.

4) 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.”

5) It is, therefore, inferred on the basis of discussions made in the foregoing paragraphs of this judgment that the learned

Revisional Court ought to have afforded them an opportunity of hearing before deciding the criminal revision.

6) In view of the above proposition of law, the order dated 07.01.2013 passed in Criminal Revision No.62 of 2011, “Harish Chandra vs. Laxmi Narayan & another” and the entire proceedings of the Criminal Case No.131 of 2011, “Harish Chandra vs. Laxmi Narayan and another” under Section 323 of IPC, pending before learned Judicial Magistrate, Lansdowne, District Pauri Garhwal, are set-aside. It is directed that the Revisional Court shall hear the matter afresh after giving an opportunity of hearing to the accused-applicants and pass an appropriate order, in accordance with law.

7) With the directions as above, the petition under Section 482 of Cr.P.C., are finally disposed of.

A.kaur

(U. C. Dhyani, J.)

18.9.2017