Heard Sri Vinod Kumar Singh, learned counsel for the petitioner and Sri Rajendra Kumar Dwivedi, learned A.G.A for the State as well as perused the documents available on record.
This petition under Section 482 Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioners for quashing the order dated 09.8.2010 passed by the learned Additional Sessions Judge, Court No. 9, District Faizabad in Criminal Revision No. 69/10 (Rajesh Tiwari Vs. State of U.P.) whereby the learned Additional Sessions Judge has allowed the revision and set aside the order passed by the Additional Chief Judicial Magistrate, IIIrd, Faizabad in Complaint Case No. 56/09 of 2009 and remanded the matter back to the court below with a direction to pass afresh order in the light of evidence available on record. The petitioner has also prayed for quashing the impugned summoning order dated 21.8.2010 passed by the learned Additional Chief Judicial Magistrate, IV, District Faizabad in Criminal Complaint Case No. 2810 of 09 (Rajesh Tripathi Vs. Mahraj Dutt and Others).
The only question involved for consideration before this court is the legality of the impugned order dated 09.8.2010 passed by the learned Additional Sessions Judge, Court No. 9, District Faizabad in Criminal Revision No. 69/10 (Rajesh Tiwari Vs. State of U.P.) whereby he has allowed the revision filed by the opposite party no. 2. Therefore, with the consent of learned counsel for the petitioner and learned Additional Government Advocate this petition is being disposed of finally without issuing notice to the Opposite Party No. 2 to curtail the delay in the proceeding pending against the accused before the learned Additional Chief Judicial Magistrate.
From a perusal of the record, it appears that the opposite party no. 2-Rajesh Tiwari filed a complaint against the accused before the learned Additional Chief Judicial Magistrate, IIIrd, Faizabad. The learned Additional Chief Judicial Magistrate recorded the statement of the complainant under Section 200 of the Code and the statement of witnesses under Section 202 of the Code. He on the basis of statements of the complainant and witnesses found that there was no sufficient ground to proceed against the accused consequently he vide order dated 08.4.2010 dismissed the complaint under Section 203 of the Code. The complainant being aggrieved by the impugned order passed by the learned Additional Chief Judicial Magistrate preferred criminal revision before the Sessions Judge, Faizabad which was transferred by the learned Sessions Judge to the learned Additional Sessions Judge, Court No. 9, Faizabad for disposal. The complainant did not implead the petitioner as a party in the revision. The learned Additional Sessions Judge after hearing learned counsel for the revisionist and learned A.P.O. found that the learned Additional Chief Judicial Magistrate, had not properly gone through the statements of complainant and witnesses recorded by him under Section 200 and 202 of the Code consequently he Vide order dated 09.8.2010 allowed the revision and remanded back the matter to the court below for passing afresh order which has given rise to the present petition.
The submission of learned counsel for the petitioner is that the complainant-opposite party no. 2 had not impleaded the accused-petitioner as opposite party in the criminal revision while they were necessary party to the revision. Learned counsel submits that after dismissal of the complaint by the learned Magistrate under Section 203 of Code, a valuable right had accrued in favour of the accused. He was entitled to oppose the criminal revision, therefore, he was necessary party. Learned counsel in support of his argument has placed reliance on law laid down by the Hon'ble Apex Court in case of Raghu Raj Singh Rousha Vs Shivam Sundaram Promoters Private Limited and another; in (2009) 2 Supreme Court Cases 363. Learned counsel argued that since the complainant did not implead the accused-petitioner as party in the criminal revision, therefore, the impugned order passed by the learned Additional Sessions Judge in the criminal revision filed by the opposite party no. 2 is bad in the eyes of law and is liable to be quashed on this ground and the matter deserves to be remanded back to the learned Additional Sessions Judge to decide the criminal revision afresh after directing the revisionist to implead the petitioner as a opposite party and after serving the notice to the petitioner as well as allowing him proper opportunity of hearing. Consequently, the impugned summoning order dated 21.8.2010 passed by the learned Additional Chief Judicial Magistrate, IV, Faizabad is also illegal and liable to be quashed.
Sri Rajendra Kumar Dwivedi, learned A.G.A. although supported the impugned order passed by the learned Additional Sessions Judge but fairly accepts that the complainant without impleading the petitioner as opposite party in the criminal revision had filed criminal revision against the dismissal order of the complaint passed by the learned Magistrate under Section 203 of the Code while the petitioner was a necessary party to the criminal revision.
I have given thoughtful consideration to the submissions of learned counsel for the petitioners and learned A.G.A.
From a perusal of the records, it appears that the opposite party no. 2-complainant had filed the criminal revision against the dismissal order of his complaint passed by the learned Magistrate before the Sessions Judge, Faizabad without impleading the petitioner as opposite party. The criminal revision was transferred to the learned Additional Sessions Judge, Court No. 9, Faizabad for disposal. The learned Additional Sessions Judge allowed the revision. After dismissal of the complaint by the learned Magistrate under Section 203 of the Code, a valuable right had accrued in favour of the accused. He was necessary party to the revision who could oppose the revision and support the impugned order passed by the learned Magistrate. In case Raghu Raj Singh Rousha Vs Shivam Sundaram Promoters Private Limited and another (supra) the Hon'ble Apex Court held that where an application moved by the complainant under Section 156 (3) of the Code was dismissed by the learned Magistrate and the applicant being aggrieved by the order passed by the learned Magistrate filed revision before the Sessions Judge, the accused was necessary party to the revision as a valuable right accrued in favour of the accused to oppose the revision and support the order passsed by the learned Magistrate. In view of the law laid down by the Hon'ble Apex Court in the case cited above, the petitioner was a necessary party to the revision filed by the complainant against the order passed by the learned Magistrate under Section 203 of the Code. The impugned order passed by the learned Additional Sessions Judge in the absence of the petitioner was bad in the eyes of law and and liable to be quashed and the matter requires to be remanded back for afresh decision in accordance with law after directing the revisionist to implead the petitioner as party and affording him proper opportunity of hearing. Consequently, the impugned summoning order dated 21.8.2010 passed by the learned Additional Chief Judicial Magistrate, IV, Faizabad is also liable to be quashed.
The petition is, therefore, allowed. The impugned order dated 09.8.2010 passed by the learned Additional Sessions Judge, Court No. 9, District Faizabad in Criminal Revision No. 69/10 (Rajesh Tiwari Vs. State of U.P.) and the impugned summoning order dated 21.8.2010 passed by the learned Additional Chief Judicial Magistrate, IV, Faizabad in Criminal Complaint Case No. 2810/09 (Rajesh Tripathi Vs. Mahraj Dutt and Others), under Sections 323/504/506 IPC, P.S. Raunahi, District Faizabad are hereby set aside. The matter is remanded back to the learned Additional Sessions Judge with a direction that he shall direct the revisionist to implead the petitioner as party in the revision filed by him then he will dispose of the revision after serving notice to the petitioner and affording him proper opportunity of hearing.
Order Date :- 6.1.2011 Santosh/-