Allowed

Diwakar and 4 Ors. v. State of U.P. and Another

Allahabad HC7 Feb 2020A482/2535/2020

Case brief

AI extract

What is this about?

The court allowed an application under Section 482 CrPC to set aside a criminal revision order and subsequent orders that were passed without affording an opportunity of hearing to the accused, relying on Raghuraj Singh Rausha to establish the right to be heard.

What did the court decide?

Order dated 26.11.2018 and consequential orders are set-aside; matter remitted to Sessions Judge to decide criminal revision afresh.

Diwakar and 4 Ors. Vs State of U.P. and… — Pension and Retirement Benefits | Allahabad HC (2020)

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Court No. - 78 Case :- APPLICATION U/S 482 No. - 2535 of 2020 Applicant :- Diwakar And 4 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjai Kumar Pandey Counsel for Opposite Party :- G.A.,Haidar Ali,Alok Kumar Mishra

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Hon'ble Om Prakash-VII,J.

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Heard learned counsel for the applicants, learned counsel for the opposite party no.2 and the learned AGA for the State.

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This application under Section 482 CrPC has been filed with the prayer to quash the charge-sheet in Criminal Case No. 3954 of 2018, arising out of Case Crime No. 129 of 2018, under Sections 323, 324, 504, 506 and 325 IPC and order dated 26.11.2018 passed by District and Sessions Judge, Siddharth Nagar in criminal revision no. 126 of 2018 and summoning order dated 5.12.2019 passed by Additional Sessions Judge Court No.1/ Special Judge (POCSO Act), Siddharth Nagar in Criminal Case No. 10 of 2019, under Sections 147, 323, 324, 325, 354, 452, 504, 506 IPC and 7/8 POCSO Act, Police Station Dumariyaganj, District Siddharth Nagar and further to stay further proceedings of the aforesaid criminal case.

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It is submitted by the learned counsel of the applicants that initially in this matter charge sheet was submitted only for the offence under Sections 147, 323, 324, 325, 504, 506 IPC. Magistrate concerned took cognizance on the charge sheet on 18.9.2018. It is further submitted that a protest petition was filed on behalf of opposite party no.2 before the Magistrate concerned for taking cognizance under POCSO Act also but same was rejected. Thereafter, criminal revision was filed by the opposite party no.2 before Sessions Judge concerned without arraying accused named in the charge sheet as opposite parties. Vide order dated 26.11.2018, the criminal revision was allowed without affording opportunity of hearing to applicants setting aside the cognizance order taken by the concerned Magistrate with direction to the concerned Magistrate to pass fresh order in light of the directions given in the said order dated 26.11.2018. It is further submitted that concerned Magistrate vide its order forming opinion that matter relates to POCSO Act, transmitted entire record through Sessions Judge concerned to the Court having jurisdiction to deal with the matter under POCSO Act. It is next contended that Special Judge (POCSO Act) vide order dated 5.12.2019 took cognizance in the matter against applicants for the offence under Sections 147, 323, 324, 325, 354, 504, 506 IPC and 7/8 POCSO Act despite this fact that criminal revision was decided without affording opportunity of hearing to the applicants.

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Referring to settled legal position in Raghuraj Singh Rausha Vs. Ms. Shiv Ram Sundaram Promoters 2009 (65) ACC 629 SC , it is also submitted that revisional court order dated 26.11.2018 and also all consequential orders passed thereafter in the matter are illegal and not sustainable.

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On the other hand, Shri Ashish Kumar Gupta, Advocate holding brief for Shri Haidar Ali, learned counsel for the opposite party no.2 and the learned AGA submitted that though applicants were not arrayed as opposite party in the criminal revision yet the Court dealing with the matter has jurisdiction to take cognizance for the offences other than the offences mentioned in the charge sheet. Court below has also jurisdiction to take cognizance against those persons who are not chargesheeted and there are sufficient evidence against them in the case diary itself. There is no illegality or infirmity in the impugned orders warranting interference by this Court.

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I have considered rival submissions made by the learned counsel for the parties and have gone through the entire record including the case law cited in the matter carefully.

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Apex Court in Raghuraj Singh Rausha case (supra) has clearly held that prospective accused or accused named in the charge sheet have right to be heard in the criminal revision. In this matter, it is evident that neither applicants were arrayed as opposite party in the criminal revision nor opportunity of hearing was afforded to them. In the circumstances, in my view, application is liable to be allowed and order dated 26.11.2018 passed by lower revisional court in aforesaid criminal revision moved by the opposite party no.2 against the order passed by concerned Magistrate is illegal and is liable to be set aside and all consequential orders passed thereafter are not sustainable and are also liable to be set-aside and matter is liable to be remitted back to the Court concerned to decide the matter afresh.

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In the circumstances, present application is allowed and the order dated 26.11.2018 passed by District and Sessions Judge, Siddharth Nagar in Criminal Revision No.126 of 2018 and all consequential orders i.e. order dated 15.12.2018 passed by Chief Judicial Magistrate, Siddharth Nagar and the order dated 5.12.2019 passed by Additional Sessions Judge No.1/ Special Judge (POCSO Act), Siddharth Nagar are set-aside. Matter is remanded back to the Sessions Judge concerned to decide the criminal revision afresh after affording opportunity of hearing to the accused persons.

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Order Date :- 7.2.2020/safi

Diwakar and 4 Ors. v. State of U.P. and Another

Case brief

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Diwakar and 4 Ors. v. State of U.P. and Another

Case brief

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