Jharkhand High Court
Satish Chandra Dey vs State Of Jharkhand And Anr. on 17 January, 2008
Equivalent citations: [2008(1)JCR449A(JHR)], 2008 (2) AIR JHAR R 330
Author: R.R. Prasad
Bench: R.R. Prasad
ORDER R.R. Prasad, J.
1. This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 23.6.2006 passed by learned Sessions Judge. Bokaro in Cr. Rev. No. 135 of 2005 whereby learned Sessions Judge directed the Court below to summon the petitioner to face trial along with other accused though the trial Court had refused to exercise his jurisdiction to summon the petitioner to face the trial.
2. It appears that the informant lodged First Information Report alleging therein that while he was coming to village he was accosted in the way by this petitioner and one Uttam Kumar Dey and said Uttam Kumar Dey fired shot at him but he managed to escape from being hit and then Uttam Kumar Dey assaulted him with fists and slaps.
3. Upon it, Harla P.S. Case No. 58 of 2002 was instituted under Sections 341/323/324/325/326/307/34 of the Indian Penal Code and also under Section 27 of the Arms Act against the petitioner and his son Uttam Kumar Dey. The Investigating Officer after investigating the case submitted the charge-sheet under Section 341/323 only against Uttam Kumar Dey and accordingly, cognizance of the offence was taken and subsequently when I lie case was taken up for trial, prosecution witnesses were examined and after examination of PW 5 and PW 7. Public Prosecutor filed an application under Section 319 of the Code of Criminal Procedure which was rejected by the trial Court holding therein that no compelling reason does emerge from the material available on the record to proceed with the petitioner.
4. Being aggrieved with that, the informant preferred Criminal Revision application before the Sessions Judge, Bokaro who having heard learned Counsel appearing for the petitioner did allow Revision application by recording his opinion that there appears reasonable prospect of the accused being convicted and accordingly, directed the trial Court to summon the petitioner.
Being aggrieved with that order, this application has been filed.
5. The only ground taken on behalf of the petitioner to assail the order passed by the revisional Court is that the revisional Court should not have passed the order without giving opportunity to the petitioner to be heard and in support of the submission learned Counsel appearing for the petitioner has referred to a decision in the case of Sayeed Bhagat and Ors. v. State of Bihar and Anr. reported in 1999 Cr LJ 4040 : 1999 (2) East Cr C 242 (Pat) and also a decision of the Delhi High Court in the case of Mohd. Afzal v. Noor Nisha Begum reported in 1997 (2) Crimes 493 (Del) : 19S7 (2) East Cr C 148 (Del).
6. As against that, learned Counsel appearing for the opposite party No. 2 submits that the revisional Court in view of the evidences appearing against the petitioner has rightly passed the order whereby petitioner has been summoned to lace trial and hence, the order impugned needs not to be interfered with by this Court.
7. Having heard learned Counsel appearing for the parties the only question falls for consideration as to whether the revisional Court is justified in setting aside the order of the learned Magistrate without issuing notice to the petitioner.
8. This point has been answered by the Delhi High Court in the aforesaid case where complaint filed by the complainant was dismissed by the Magistrate on appraisal of the evidence but the Sessions Judge set aside the same and directed to summon the accused. This order was passed in absence of the accused-petitioner of that case and in these circumstances it was held that in exercise of revisional jurisdiction under Section 399 or 401 of the Code of Criminal Procedure, no order to the prejudice to any other person can be passed unless an opportunity of being heard is given. In this context Sections 399/401/401(2) of the Code of Criminal Procedure were taken notice of and the learned single Judge of Delhi High Court held as follows:
It is abundantly clear from the relevant provisions of law reproduced above that no order to the prejudice of an accused or any other person can be made unless the said accused or the said person has been given an opportunity of being heard.
9. Thus it is evidently clear from the relevant provisions of law that no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons has been given an opportunity of being heard.
10. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401/401(2) of the Code of Criminal Procedure is illegal.
11. In the result, this application is allowed and the impugned order dated 23.6.2006 is set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same be disposed of in accordance with law.