Patna High Court - Orders
Ram Pratap Singh & Ors vs State Of Bihar & Ors on 28 March, 2012
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.561 of 2009
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1. Ram Pratap Singh S/o late Sadhu Singh
2. Surendra Pratap Singh S/o Ram Pratap Singh
3. Ram Suresh Singh S/o Raghupati Singh, all are R/o village- samahutta,
P.S. Karagahar, District- Rohtas
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Ramashish Singh
3. Bhagwati Singh
4. Vakil Singh
5. Sudama Singh, opposite parties no. 2 to 5 are S/o of Late Jang Bahadur
Rai,
6. Yugeshwar Singh S/o Bhagwati Singh, All (2 to 6) are R/o village-
Sohwaliya Khurd, P.S.- Karagahar, District- Rohtas at Sasaram , Opp.
Party 1st set.
7. Birendra Deuby
8. Rama Kant Dubey, both are S/o of Kamlapati Dubey, R/o village-
Sohwaliya Khurd, P.S.- Karagahar, District- Rohtas
.... .... Opposite Party/s
II set.
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Appearance :
For the Petitioner/s : Mr.
Mr.
For the Opp. Party /sMr. :
Mr.
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL ORDER
9 28-03-2012Heard learned counsel for the petitioners, learned counsel for opposite parties no. 2 to 6 as well as learned A.P.P. for the State.
Pursuant to the order dated 6.2.2012, the explanation of the office has been received and is attached with the records of the present case. This Court agrees with the note of the Registrar General dated 7.3.2012 that the office has wrongly interpreted and Patna High Court CR. REV. No.561 of 2009 (9) dt.28-03-2012 2/6 put a note that the summons have been validly served. The explanation of the office and the person concerned is that as per the practice, the said note has been put up. They have, however, tendered unconditional apology. In view of the said fact, this Court would not like to proceed with regard to the said aspect any further.
A report was also called for from the District Judge, Rohtas at Sasaram which was to be received in this Court latest by 2.3.2012. It appears that the order has been communicated to the District Judge, Rohtas at Sasaram under letter no. 2216 dated 13.2.2012. However, as per the note of the office dated 23.3.2012 it appears that the report of the District Judge, Rohtas at Sasaram has not been received.
In view of aforesaid, call for an explanation from the District Judge, Rohtas at Sasaram as to why inspite of having been communicated the order of this Court dated 6.2.2012, no report has been sent to this Court within the time stipulated. The Registry shall immediately communicate this order to the District Judge, Rohtas at Sasaram. The explanation shall be sent to this Court latest by 13.4.2012.
Let the matter be listed under the heading "For Orders" on 7.5.2012.
Patna High Court CR. REV. No.561 of 2009 (9) dt.28-03-20123/6
Learned counsel for the petitioners submits that the opposite parties no. 7 and 8 are neither necessary parties nor required to be heard in the present case, and they had been made party only for the reason that they had been made party in the proceedings in the court below by the opposite parties no. 2 to 6. Learned counsel appearing for the opposite parties no. 2 to 6 does not dispute this position.
Accordingly, as jointly prayed for by the learned counsel for the petitioners as well as learned counsel appearing for the opposite parties no. 2 to 6, let the names of opposite parties no. 7 and 8 be expunged from the list of opposite parties in the present case.
The present application is directed against the order dated 2.3.2009 passed by the District and Sessions Judge, Rohtas at Sasaram in Criminal Revision No. 43 of 2009 which was allowed in favour of opposite parties no. 2 to 6 and the order dated 14.1.2009 passed by Sub-Divisional Magistrate, Sasaram in Case No. 1269 of 2007 in favour of the petitioners under section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as „the Code‟) has been set aside.
Learned counsel for the petitioners had addressed the Court on a very short point while assailing the order impugned. Patna High Court CR. REV. No.561 of 2009 (9) dt.28-03-2012 4/6 His contention is that the order in favour of the petitioners has been set aside by the District Judge, Rohtas at Sasaram without issuing notice or giving any opportunity of hearing to them. The order passed under section 145 of the Code in favour of the petitioners, according to learned counsel, could not have been set aside in any proceeding without notice and due opportunity of hearing having been afforded to the petitioners. In the present case it is an admitted position that the same has not been done. Learned counsel for the petitioners has relied upon the provisions of Sections 379 and 399 read with 401 of the Code and submits that if the court proposes to pass an adverse order affecting the interest of any party, the said party has to be heard.
Learned counsel for the opposite parties no. 2 to 6 though has not seriously opposed the said proposition of law but submits that the revision application as filed before the court below, did not contemplate issuance of any notice since the same is well discussed and no infirmity in law can be found in the same.
Considering the rival contentions of the parties and in view of the admitted position that the order impugned has been passed without notice or hearing the petitioners and as the order impugned has overturned the order of Sub-Divisional Magistrate passed in Case no. 1269 of 2007, which was in favour of the Patna High Court CR. REV. No.561 of 2009 (9) dt.28-03-2012 5/6 petitioners, this Court is of the considered opinion that the impugned order cannot be sustained for that very simple reason. Even as per the provisions of the Code if an order has to be passed under section 397 of the Code on the basis of application filed or otherwise, the order which is sought to be set aside or overturned, if it is in favour of any party, the same cannot be so done without giving notice and adequate opportunity of hearing to the party concerned. This basic principle of natural justice is a constitutional mandate and has to be read in every statute and provision of law when it comes to a lis inter-se between the parties who are directly or likely to be affected and the same in the opinion to this Court is an obligation of the court which has to issue notice and hear the parties. In the present case it is not in dispute that the petitioners are the beneficiaries of the order dated 14.1.2009 under section 145 of the Code passed in Case No. 1269 of 2007 by the Sub- Divisional Magistrate, Sasaram. Thus, it was incumbent and obligatory for the court to issue notice and hear the parties before passing any final order. In the present case, the same not having been done, the order impugned cannot be sustained.
Accordingly, the order dated 2.3.2009 passed by the District Judge, Rohtas at Sasaram in Criminal Revision No. 43 of 2009 is hereby set aside. The matter is remanded to the court Patna High Court CR. REV. No.561 of 2009 (9) dt.28-03-2012 6/6 concerned for fresh consideration in accordance with the law after giving them opportunity of hearing. The parties are directed to appear before the District Judge, Rohtas at Sasaram alongwith a copy of this order on 16.4.2012 when the court shall fix the next date in the case. The court shall expeditiously hear the matter and pass final order latest within two months thereafter.
The application, accordingly, stands allowed in the aforementioned terms.
The case shall however be listed under the heading "For Orders" as directed earlier on 7.5.2012 for considering the report of the District Judge, Rohtas at Sasaram as well as his explanation.
RPS/- (Ahsanuddin Amanullah, J)