The court allowed two criminal miscellaneous petitions challenging a revision order that summoned accused persons without hearing them, violating Code of Criminal Procedure requirements.
Impugned order dated 2.2.2013 set aside; direction to pass fresh order after issuing notice to accused.
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Crl. Misc. No. M-24594 of 2013 Crl. Misc. No. M-35870 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
1. Crl. Misc. No. M-24594 of 2013 Date of Decision: 04.12.2014.
Ramesh Kumar ........Petitioner
Vs.
Jaswinder Kaur and another ......Respondents
2. Crl. Misc. No. M-35870 of 2013 (O&M)
Kanwaljit Kaur ........Petitioner Vs.
Jaswinder Kaur ......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. G.S.Sandhu, Advocate for the petitioner. (In CRM-M No. 24594 of 2013) Mr. Dinesh Ghai, Advocate for the petitioner. (In CRM-M No. 35870 of 2013)
Mr. Sumit Gupta, Advocate for the private respondent.
Ms. Loveleen Dhaliwal Singla, Sr. DAG, Haryana.
SABINA, J.
Vide this order, above mentioned two petitions would be disposed of as the petitioners have challenged the order dated 2.2.2013.
I have heard the learned counsel for the parties and have gone through the record available on the file carefully.
GURPREET SINGH 2014.12.10 16:00 I attest to the accuracy and authenticity of this document Chandigarh
Crl. Misc. No. M-24594 of 2013 Crl. Misc. No. M-35870 of 2013 (O&M)
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Respondent No. 1-Jaswinder Kaur has filed the complaint against the petitioners and others under Section 109, 166, 167, 406, 418, 420 read with Section 120-B of the Indian Penal Code, 1860 (' IPC' for short). In support of her case, respondent No. 1 led her preliminary evidence. Trial Court vide order dated 3.3.2012 ordered the summoning of accused Om Parkash Sisodiya, Lakhbir Singh and Ramesh Kumar under Section 166, 167 IPC. Aggrieved against the said order, respondent No. 1 preferred a revision petition.
Case of respondent No. 1 was that the Trial Court had erred in dismissing the complaint qua petitioner Kanwaljit Kaur and all the accused should have summoned qua commission of offence punishable under Section 109, 418, 420, 120-B IPC. The Court of Revision vide the impugned order, without summoning the accused, allowed the revision petition and modified the order passed by the Trial Court. The Court of revision ordered that petitioner Kanwaljit Kaur be also summoned to face the trial under Section 420, 120-B IPC and other accused be also summoned to face the trial qua commission of offence punishable under Section 166, 167, 420 read with Section 120-B IPC.
It has been held by the Apex Court in ' Manharibhai
Muljibhai Kakadia and another versus Shaileshbhai
Mohanbhai Patel and others', 2012(4) R.C.R. (Criminal) 689, as under:-
“58. We are in complete agreement with the view expressed by this Court in P. Sundarrajan , Raghu Raj Singh Rousha and A. N. Santhanam. We hold, as it
GURPREET SINGH 2014.12.10 16:00 I attest to the accuracy and authenticity of this document Chandigarh
Crl. Misc. No. M-24594 of 2013 Crl. Misc. No. M-35870 of 2013 (O&M)
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must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled. ”
GURPREET SINGH 2014.12.10 16:00 I attest to the accuracy and authenticity of this document Chandigarh
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Crl. Misc. No. M-24594 of 2013 Crl. Misc. No. M-35870 of 2013 (O&M)
In the present case, the Court of Revision has admittedly allowed the revision petition without affording opportunity of hearing to the accused. Since the order passed by the Court of Revision has effected the rights of the accused, it was essential for the Court of Revision to have given a hearing to the accused before disposing of the revision petition.
Accordingly, both the petitions are allowed. Impugned order dated 2.2.2013 is set aside. Court of Revision is directed to pass a fresh order, in accordance with law after issuing notice to the accused.
(SABINA) JUDGE
December 04, 2014 Gurpreet
GURPREET SINGH 2014.12.10 16:00 I attest to the accuracy and authenticity of this document Chandigarh
1 issue framed by the court
Whether an accused has a right to be heard by the revisional court before it allows a revision petition challenging an order dismissing a complaint.
Colour shows how this judgement treated each authority
Manharibhai Muljibhai Kakadia and another vs. Shaileshbhai Mohanbhai Patel and othersExplained¶26
Manharibhai Muljibhai Kakadia and another versus Shaileshbhai Mohanbhai Patel and others', 2012(4) R.C.R. (Criminal) 689
2 provisions across 1 enactments
Ramesh Kumar
Kanwaljit Kaur
Jaswinder Kaur
SABINA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
