Allowed

Ishwar Singh Samota v. State of Rajasthan

Rajasthan HC16 Nov 2022CRLMP/3720/2019

Case brief

AI extract

What is this about?

High Court allowed a criminal misc. petition challenging a revision order passed by the Sessions Judge. The Court held that the Sessions Judge committed an error of law by quashing an order and remanding the matter without affording the petitioner-accuseds an opportunity of hearing as mandated by Section 401(2) Cr.P.C.

What did the court decide?

Misc. Petition allowed; order of Sessions Judge dated 27.04.2019 quashed to the extent of interest of petitioners; matter remanded for fresh hearing.

Ishwar Singh Samota Vs State of Rajasthan — Civil Procedure and Limitation | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 3720/2019

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Ishwar Singh Samota S/o Devi Lal Samota, Aged About 74 Years, R/o Near Anand Talkies, Nathdwara, Distt. Rajsamand.

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Madan Lal S/o Sh. Panna Lal, Aged About 77 Years, R/o Opposite Rtdc Bungalow, Nathdwara, Distt. Rajsamand. ----Petitioners

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Versus

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State Of Rajasthan, Through Pp 2. Vishnu Kumar S/o Shri Durgashanar Verma, R/o Lodhaghati, Nathdwara, Distt. Rajsamand.

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----Respondents

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For Petitioner(s) : Mr. Sudhir Saruparia For Respondent(s) : Mr. Laxman Solanki, PP Mr. Swaroop Singh R-2.

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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16/11/2022

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By way of filing the instant Misc. Petition under Section 482 Cr.P.C., a challenge has been made to the order dated 27.04.2019 passed by learned Additional Sessions Judge, Nathdwara in Criminal Revision No.17/2018 (State Vs. Bheru Singh & Ors.) whereby the learned revisional Court has allowed the revision petition filed by the State and remanded the matter back to the learned trial Court with a direction to pass an order afresh on the application under Section 319 Cr.P.C.

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Bereft of elaborate details, the brief facts necessary for disposal of the instant Misc. Petition are that in a criminal trial bearing Criminal Regular Case No.280/2005, pending in the Court

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(2 of 4)

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[CRLMP-3720/2019]

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of learned Additional Chief Judicial Magistrate, Nathdwara, an application was preferred by the complainant under Section 319 Cr.P.C. for arraigning other persons as an accused and put them for trial including the petitioner.

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Vide order dated 15.03.2018, the learned ACJM, Nathdwara allowed the application and took cognizance of the offence as well as directed to issue process against the accused persons namely (1) Babu Lal S/o Devi Lal (2)Vijay Kumar Sandhya, (3)Lalit Kumar S/o Radha Kishan (4) Ishwar Lal S/o Nana Lal (5) Shyam lal S/o Om Prakash (6) Madan Lal S/o Mohan Lal and (7) Devi Lal S/o Mohan Lal. All these accused persons were summoned through bailable warrant. The names of the present petitioners are not included therein.

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Aggrieved by the order aforesaid, two separate revision petitions were preferred by the persons who were impleaded as an accused for quashing of the order and the other revision petition came to be moved at the behest of State of Rajasthan challenging the order impugned while praying to arraign the other persons as an accused including the petitioner Ishwar Lal Samota and Madan Lal S/o Panna Lal. This Court only concerns with the order passed by the learned Additional Sessions Judge, Nathdwara dated 27.04.2019 in the revision petition filed on behalf of the State of Rajasthan against the petitioners only and it will not influence in any manner the case of the rest of the accused-persons.

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Since a limited legal question is involved in this matter, therefore, this Court refrains from commenting on the other legal and factual aspect of the matter and do not want to go in to the niceties of the case. The only legal question involved in this matter is that the State filed the revision petition for impleadment of the

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(3 of 4)

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[CRLMP-3720/2019]

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petitioners as accused but the learned Additional Sessions Judge, Nathdwara has not afforded any opportunity of hearing to them and passed an order adversed to their interest. Manifestly, the learned ACJM, Nathdwara has not directed to arraign the petitioners as an accused, therefore, the State filed the revision petition for arraigning them as an accused in this matter. The same was partly allowed by the learned Additional Sessions Judge, Nathdwara vide order dated 27.04.2019 and the matter was remanded back for fresh adjudication.

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As per the mandate of law, in a revision petition, an order prejudicial to the interest of the accused or other person cannot be passed unless an opportunity of hearing has been provided to him. Section 401 of the Cr.P.C. postulates the power of revision to be exercised by the High Court. Section 401 (2) Cr.P.C. reads as

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under:-

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“Section 401. High Court’s Powers of revisions.

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(1) ……

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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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Section 397 Cr.P.C. provides power to the High Court or the Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality and propriety of any finding, sentence or order passed by such inferior Court.

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Section 399 of the Cr.P.C. envisages powers of Sessions Judge to entertain revision petition. Section 399 (1) of the Cr.P.C. is reproduced as under:-

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(4 of 4)

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[CRLMP-3720/2019]

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“399. Sessions Judge' s powers of revision:-

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(1) In the case of any proceeding the record of which has been called for by himself, the Sessions judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401.”

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Admittedly, the petitioners have not been afforded any opportunity of being heard in revision petition though a favourable order had been passed in their favour by the Court below and even they were impleaded as party-respondents in the revision petition thus, the learned Additional Sessions Judge, Nathdwara has committed an error of law in not issuing notices and not giving proper opportunity of being heard to them, therefore, this Court is inclined to accept the Misc. Petition to the extent of the matters of the petitioners only.

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Accordingly, the instant Misc. Petition is allowed. The order dated 27.04.2019 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Revision No.17/2018 is quashed and set aside to the extent of interest of the petitioners. The learned Additional Sessions Judge, Nathdwara is directed to hear the revision petition afresh and then pass the order after affording opportunity of hearing to the petitioner and other party.

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(FARJAND ALI),J

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130-Mamta/-

Ishwar Singh Samota v. State of Rajasthan

Case brief

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Ishwar Singh Samota v. State of Rajasthan

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