1. The present petition under Article 227 of the Constitution of India has been preferred by the petitioner-original accused to quash and set aside the impugned judgment and order passed by the learned Revisional Court-Additional District and Sessions Judge, Presiding Officer, 3rd Fast Track Court, Panchmahals at Godhra in Criminal Revision Application No. 80/2008 dated 16/01/2009, allowing the said Revision Application preferred by respondent no. 2 herein-original complainant and quashing and setting aside the order passed by the learned trial Court dismissing the Complaint filed by respondent no. 2 herein and restoring the same to the file of the learned trial Court.
2. The facts leading to the present Special Criminal Application in a nutshell are as under;
2.1. Respondent no. 2 had filed the Complaint against the petitioner-original accused for the offence punishable under Sections 425, 426, 427, 447, 448, 451, 453 and 454 of the Indian Penal Code in the Court of learned Chief Judicial Magistrate, Godhra.
2.2. The aforesaid Complaint came up for hearing before the learned Judicial Magistrate First Class, Godhra, who by order dated 12/08/2008 dismissed the said Complaint in exercise of powers under Section 203 of the Code of Criminal Procedure on the ground that the dispute is of civil nature. Being aggrieved and dissatisfied with the order passed by the learned Judicial Magistrate First Class, Godhra in dismissing the said Complaint, respondent no. 2-original complainant preferred Criminal Revision Application No. 80/2008 before the learned Sessions Court-revisional Court. In the said Revision Application the petitioner was in fact joined as opponent no. 2. However, without giving any opportunity of being heard to the petitioner-
original accused, the learned Additional District and Sessions Judge, Presiding Officer, 3rd Fast Track Court, Panchmahals at Godhra by impugned judgment and order dated 16/01/2009 has allowed the said Revision Application restoring the Complaint on the file of the learned Judicial Magistrate First Class, Godhra. Being aggrieved and dissatisfied with the impugned order passed by the learned revisional Court dated 16/01/2009 in Criminal Revision Application No. 80/2008 the petitioner-original accused has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
3. Shri K.J. Panchal, learned advocate appearing on behalf of the petitioner-original accused has vehemently submitted that as such though the petitioner-original accused was a party to the Revision Application, notice of the Criminal Revision Application was not served upon the petitioner, and, therefore, the learned revisional Court has materially erred in allowing the said Revision Application without giving an opportunity to the petitioner and, therefore, it is requested to quash and set aside the impugned order passed by the learned revisional Court.
4. Shri P.P. Majmudar, learned advocate has tried to oppose the present petition by submitting that in the Revision Application the petitioner-original accused was not required to be heard and, therefore, it is requested to dismiss the present application by submitting that no illegality has been committed by the learned Revisional Court in allowing the said Revision Application without hearing the petitioner.
5. Shri L.B. Dabhi, learned APP has requested to pass an appropriate order considering the facts and circumstances of the case
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned Magistrate dismissed the Complaint under Section 203 of the Code of Criminal Procedure by holding that the dispute is of civil nature. Being aggrieved and dissatisfied with the order passed by the learned Magistrate dismissing the Complaint, respondent no. 2-original complainant preferred Revision Application in which the petitioner was joined as opponent no. 2. It is not in dispute that the notice of Revision Application was not served upon the petitioner-original accused and despite the same, the learned revisional Court has passed the impugned order and has passed an order to restore the Complaint on the file of learned Magistrate. It is also required to be noted at this stage that as such the learned revisional Court has not passed any order to quash and set aside the order passed by the learned Magistrate dismissing the Complaint in exercise of powers under Section 203 of the Code of Criminal Procedure and, therefore, even otherwise, unless and until the order passed by the learned Magistrate dismissing the Complaint under Section 203 of the Code of Criminal Procedure is set aside, the learned revisional Court could not have passed the order to restore the Complaint on the file of the learned Judicial Magistrate First Class.
7. Under the circumstances, the impugned order passed by the learned Revisional Court in allowing the said Revision Application to restore the Complaint on file of the learned Judicial Magistrate First Class cannot be sustained and the same deserves to be quashed and set aside.
8. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the learned Additional District & Sessions Judge, Presiding Officer, 3rd Fast Track Court, Panchmahals at Godhra dated 16/01/2009 is hereby quashed and set aside and the matter is remanded to the learned revisional Court for considering the said Criminal Revision Application afresh in accordance with law and on its own merits and after giving an opportunity to all the concerned, inclusive of the petitioner. It is made clear that this Court has not expressed anything on merits in favour of either parties and the impugned judgment and order passed by the learned revisional Court is quashed and set aside solely on the aforesaid ground. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(M.R. SHAH, J.) siji