Quashed

Meera Singh v. the State of Jharkhand

Jharkhand HC19 Dec 2023W.P.(Cr.)/231/2023

Case brief

AI extract

What is this about?

The High Court quashed orders passed by the Sessions Judge and Judicial Magistrate which initiated criminal proceedings against petitioners without first affording them an opportunity to be heard, violating the principles of natural justice and Section 401 Cr.P.C.

What did the court decide?

Orders dated 22.12.2022 and 21.01.2023 were quashed and Criminal Revision No. 173 of 2022 was remitted to the Sessions Judge to pass a fresh order after hearing the petitioners.

Meera Singh Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2023)

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W.P. (Cr.) No.231 of 2023

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 231 of 2023

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Meera Singh, aged about 63 years, wife of Suresh Prasad Singh,

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Suman Saurabh, aged about 36 years, son of Suresh Prasad Singh,

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Suresh Prasad Singh, aged about 67 years, son of late Ram Bujhawan Singh,

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Satish Kumar Singh, aged about 50 years, son of Ram Prameshwar Singh,

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Rinki Devi, aged about 50 years, wife of Satish Kumar Singh.

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Petitioner nos. 1, 2 & 3 are resident of Saraswati Nagar, Road No.5, near Beriya Bus Stand, P.S. –Ahiyapur, P.O. –MIT Muzaffarpur, District –Muzaffarpur, Bihar.

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Petitioner nos. 4 & 5 are residents of Shakti Nagar, Ward No.6, Sanchi Prati, P.O. & P.S. –Hazipur, District –Vaishali, Bihar.

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.... Petitioners

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Versus

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The State of Jharkhand

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Priyanka Kumari, aged about 32 years, daughter of Shri Devendra Kumar Singh, wife of Suman Sourabh, resident of I S H 55, Housing Colony, P.O. & P.S. –Dhanbad, District – Dhanbad, Jharkhand …. Respondents

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioners : Mr. Rupesh Singh, Advocate : Mr. Jagdeesh, Advocate For the State : Mr. Yogesh Modi, Advocate For Respondent No.2 : Mr. Bhaiya Vishwajeet Kr., Advocate …..

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By the Court:-

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Heard the parties.

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This writ petition has been filed under Article 226 of the Constitution of India with a prayer for issuance of writ/order for

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W.P. (Cr.) No.231 of 2023

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quashing the order dated 22.12.2022 passed in Criminal Revision No. 173 of 2022, by the learned Sessions Judge, Dhanbad, whereby and where under the learned Sessions Judge being the revisional court set aside the order dated 19.09.2022 by which the learned Judicial Magistrate -1^st Class, Dhanbad did not pass any summoning order in respect of the petitioner nos. 1 & 3 to 5 and took cognizance for the offences punishable under Section 323 of 341 of the Indian Penal Code only against the petitioner no.2 and behind the back of the petitioners including the petitioner nos. 1 and 3 to 5 set aside the order dated 19.09.2022, passed in the Protest-cum-Complaint Petition and prayer has also been made to quash the order dated 21.01.2023, passed by the learned Judicial Magistrate -1^st Class, Dhanbad in the said C.P. Case No. 282 of 2019 by which the learned Judicial Magistrate has taken cognizance for the offences punishable under Section 323/307/354/341/34 of the Indian Penal Code and passed summoning order against all the petitioners.

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It is submitted by the learned counsel for the petitioners relying upon the Judgment of Hon’ble Supreme Court of India, in the case of A.N. Santhanam Vs. K. Elangovan , reported in (2012) 12 SCC 321 , para -5 of which reads as under:-

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“5. Section 401 of the Code of Criminal Procedure, 1973 which deals with the High Court's power of revision reads as under:

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“401. High Court's powers of revision.—( 1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the court of revision are equally divided in

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W.P. (Cr.) No.231 of 2023

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opinion, the case shall be disposed of in the manner provided by Section 392.

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(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

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(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

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(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

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(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”

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A plain reading of sub-section (2) of the said provision makes it abundantly clear that the High Court in exercise of its revisional power cannot pass any order which may cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence.”

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That the High Court in exercise of its revisional power cannot

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pass any order which may cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence.

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It is next submitted by the learned counsel for the petitioner that it is the solemn duty of the revisional court to grant opportunity of hearing the opposite party/accused before deciding the criminal revision, when a valuable right has been accrued particularly to the petitioner no.1 and 3 to 5 after the Magistrate did not think it proper to pass any summoning order in respect of them and consequentially they ceased to be the accused person of the case and thus an indefeasible right has accrued in their favour.

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W.P. (Cr.) No.231 of 2023

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Drawing attention of this Court to Section 399 of the Code of Criminal Procedure, it is submitted by the learned counsel for the petitioner that by virtue of the said Section of the Cr.P.C., the Sessions Judge has been vested with the power to exercise all or any powers of which may be exercised by the High Court under Sub-section 401(1) of the Cr.P.C. So obviously, the procedure which is mandatory for the High Court while exercising the power under Section 401 of the Cr.P.C. is also squarely applicable to the Sessions Judge while exercising the powers vested upon it by virtue of Section 399 Cr.P.C. Hence, it is submitted that the order dated 22.12.2022 in Criminal Revision No. 173 of 2022, passed by the learned Sessions Judge, Dhanbad, whereby and where under the learned Sessions Judge being the revisional court set aside the order dated 19.09.2022 by which the learned Judicial Magistrate -1^st Class, Dhanbad did not pass any summoning order in respect of the petitioner nos. 1 & 3 to 5 and took cognizance for the offences punishable under Section 323 of 341 of the Indian Penal Code only against the petitioner no.2 and the learned Sessions Judge behind the back of the petitioners including the petitioner nos. 1 and 3 to 5 set aside the order dated 19.09.2022, passed in the Protest-cum-Complaint Petition and also to quash the order dated 21.01.2023, passed by the learned Judicial Magistrate -1^st Class, Dhanbad in the said C.P. Case No. 282 of 2019 by which the learned Judicial Magistrate has taken cognizance for the offences punishable under Section 323/307/354/341/34 of the Indian Penal Code and passed

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W.P. (Cr.) No.231 of 2023

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summoning order against all the petitioners, be quashed and set aside.

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The learned counsel for the Respondent-State and the learned counsel for the respondent no.2 on the other hand opposes the prayer for quashing the order dated 22.12.2022 in Criminal Revision No. 173 of 2022, passed by the learned Sessions Judge, Dhanbad, whereby and where under the learned Sessions Judge being the revisional court set aside the order dated 19.09.2022 by which the learned Judicial Magistrate -1^st Class, Dhanbad did not pass any summoning order in respect of the petitioner nos. 1 & 3 to 5 and took cognizance for the offences punishable under Section 323 of 341 of the Indian Penal Code only against the petitioner no.2 and behind the back of the petitioners including the petitioner nos. 1 and 3 to 5 set aside the order dated 19.09.2022, passed in the Protest-cum-Complaint Petition and also to quash the order dated 21.01.2023, passed by the learned Judicial Magistrate -1^st Class, Dhanbad in the said C.P. Case No. 282 of 2019 by which the learned Judicial Magistrate has taken cognizance for the offences punishable under Section 323/307/354/341/34 of the Indian Penal Code and passed summoning order against all the petitioners. It is submitted by the learned counsel for the respondent no.2 that the accused has no right of audience at the stage of investigation of the case, so the learned Sessions Judge has not committed any illegality by not issuing any notice to the petitioners before passing the impugned order and the learned Magistrate consequently by its order dated

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W.P. (Cr.) No.231 of 2023

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21.01.2023 having acted upon the direction of the Sessions Judge in Criminal Revision No. 173 of 2022, hence no illegality has been committed by the learned Judicial Magistrate either, in its order dated 21.01.2023 in C.P. Case No. 282 of 2019. It is lastly submitted that this writ petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the case of A.N. Santhanam Vs. K. Elangovan (supra), by now, it is a settled principle of law that when the High Court or for that matter the same principle being applicable to the Sessions Judge when the Sessions Judge exercises the same power as the High Court under Section 401(1) of the Cr.P.C. by virtue of Section 399 of the Cr.P.C., cannot exercise the revisional power to pass order which may cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence.

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Now coming to the facts of the case, undisputedly the learned Magistrate has not passed any summoning order by its order dated 19.09.2022 in C.P. Case No. 282 of 2019 against the petitioner nos. 1 & 3 to 5 and took cognizance for only bailable offences punishable under Section 323/341 of the Indian Penal Code. As no summoning order was passed against the petitioner nos. 1 & 3 to 5 by the learned Magistrate upon receipt of the charge sheet, certainly the petitioner nos. 1 & 3 to 5 ceased to be the accused persons of the case on passing of the said order dated

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W.P. (Cr.) No.231 of 2023

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19.09.2022 and certainly a valuable right has accrued to them. Undisputedly, the learned Sessions Judge has not issued summons to them even though they were the opposite party nos.2 & 4 to 6 of the Criminal Revision No. 173 of 2022 as is evident from the cause title of the final order passed in the said Criminal Revision No. 173 of 2022 dated 22.12.2022, the certified copy of which has been annexed as annexure-5 of this criminal miscellaneous petition.

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In view of the settled principle of law and the facts of this case as indicated above in the foregoing paragraphs of this judgment; this Court has no hesitation in holding that the learned Sessions Judge, Dhanbad being the revisional court has committed a gross illegality by passing an order which caused prejudice to the petitioner nos. 1 & 3 to 5 as well as to some extent, the petitioner no.2 as well, as he additionally expressed the opinion for taking cognizance for the non-bailable offences and offences triable by the Sessions Court being Section 307 of the Indian Penal Code by the Magistrate concerned, hence such an order is not sustainable in law and continuation of the same will amount to abuse of process of law. Thus, in the considered opinion of this Court, this is a fit case where the order dated 22.12.2022, passed in Criminal Revision No. 173 of 2022 and the consequential order dated 21.01.2023, passed by the learned Judicial Magistrate -1^st Class, Dhanbad in C.P. Case No. 282 of 2019 be quashed and set aside.

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Accordingly, the order dated order dated 22.12.2022, passed in Criminal Revision No. 173 of 2022 and the consequential order

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8 W.P. (Cr.) No.231 of 2023

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dated 21.01.2023, passed by the learned Judicial Magistrate -1^st Class, Dhanbad in C.P. Case No. 282 of 2019 is quashed and set aside.

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The Criminal Revision No. 173 of 2022 is remitted to the Sessions Judge, Dhanbad with a direction that, may pass a fresh order after giving opportunity of being heard to the petitioners of this case in the said criminal revision; by issuing notice to them.

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The interim order granted earlier stands vacated.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated the 19^th December, 2023 AFR/Sonu-Gunjan/-

Meera Singh v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Meera Singh v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

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