This petition under section 482 Cr.P.C. has been preferred for quashing the order dated 28.01.2014 passed by the Sessions Judge, Gonda in Criminal Revision No.433 of 2013 (Gokaran Nath Tiwari vs. State).
Brief facts of the case are that the complainant/respondent no.2 moved an application under section 156 (3) Cr.P.C. against the petitioners and on the direction of the learned Magistrate, First Information Report bearing case crime no.C-14/2008 under sections 427, 452, 323, 504, 506 and 394 IPC, P.S. Katra Bazar, District Gonda. After investigation the investigating officer has submitted the final report against which the protest application has been filed by the opposite party no.2, which was allowed and the final report was rejected vide order dated 17.06.2013. The statement of the complainant was recorded under section 200 Cr.P.C. and the learned court below after relying upon the statement of the complainant summoned the petitioners to face trial under sections 323 and 452 IPC vide order dated 12.08.2013. The opposite party no.2 filed revision against the order dated 12.08.2013 with the prayer to summon the petitioners in appropriate sections, which was allowed vide the impugned order dated 28.01.2014.
Learned counsel for the petitioners has submitted that the petitioners has not been arrayed as a party in the revision before the learned Sessions Judge. It has also been stated that the learned Sessions Judge has committed manifest error of law and abuse of the process of law by passing the impugned order without any sufficient reason and without considering the material evidence which was available on record.
Learned counsel for the petitioners has relied on a judgment of Hon'ble the Apex Court in the case of Raghu Raj Singh Rousha Versus Shivam Sundaram Promoters Private Limited and another reported in (2009) 2 Supreme Court Cases 363 wherein it has held that in view of the provisions of Section 401 (2) Cr.P.C. the accused persons should have been heard before passing any order by the learned revisional court.
Learned counsel for the petitioners has submitted that the petitioners have a right to be heard in the revision application filed by the complainant as no order could be made to the prejudice of the accused or the other person unless he has had an opportunity of being heard under section 401 (2) of the Cr.P.C.
Learned AGA appearing on behalf of the State has not contradicted the submissions as advanced by the learned Counsel for the petitioners.
The sole question for consideration is, whether a suspect is entitled to hearing by the revisional court in a revision preferred by the complainant challenging an order of the Magistrate.
In the instant case, the learned court below has passed the order without hearing the accused persons. The Hon'ble Supreme Court in the case of P. Sundarrajan and others vs. R. Vidhya Sekar reported in (2004)13 SCC 472 held as under:-
"5. In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order.
6. We have, therefore, no hesitation in allowing this appeal, setting aside the impugned judgment and remanding the matter to the High Court to issue proper notice to the appellant herein who is the respondent in the criminal revision petition before it and afford him a reasonable opportunity of hearing and to pass appropriate orders. The appeal is allowed."
Keeping in view the aforesaid facts and the settled proposition of law as laid down by the Hon'ble Supreme Court in the case of Raghu Raj Singh Rousha and P. Sundarrajan and others (supra), this Court holds that the learned Sessions Judge patently erred in law in not hearing the petitioners either personally or by the pleader in his defence while passing the impugned order and thus the order impugned is patently violative of Section 401 (2) of the Cr.P.C.
Consequently, the petition is allowed and the order dated 28.01.2014 passed by the learned Sessions Judge, Gonda in Criminal Revision No.433 of 2013 (Gokaran Nath Tiwari vs. State) is hereby set aside. The matter is remitted back to the learned Sessions Judge to decide the revision after hearing both the parties.
Order Date :- 31.7.2019 VNP/-