Himachal Pradesh High Court
Shiv Kumari Alias Shiv Kaur vs Jarnail Singh on 27 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 27th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 Cr.P.C No.909 OF 2022
Between:
SHIV KUMARI ALIAS SHIV KAUR,
WIFE OF SH. UJAGAR SINGH,
RESIDENT OF VILLAGE KADH,
TEHSIL GHANARI, DISTRICT UNA,
HIMACHAL PRADESH.
....PETITIONER
(BY MS. MEENA, PROXY COUNSEL)
AND
1. KASHMIRI LAL SON OF RAM
RAKHA, RESIDENT OF VILLAGE
KADH, TEHSIL GHANARI,
DISTRICT UNA, HIMACHAL
PRADESH.
2. KARNAIL SINGH SON OF SH.
UJAGAR SINGH, RESIDENT OF
VILLAGE KADH, TEHSIL GHANARI,
DISTRICT UNA, HIMACHAL
PRADESH.
....RESPONDENT
(NEMO)
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the following:
O R D E R
Being aggrieved and dissatisfied with the order dated 4.07.2022 passed by learned Chief Judicial Magistrate, Una, District Una, H.P., whereby an application having been filed by respondent No.1, Sh. Kashmiri Lal, seeking therein permission to withdraw the private complaint, titled as Kashmiri Lal ::: Downloaded on - 28/09/2022 20:04:08 :::CIS 2 versus Jarnail Singh, pending in the Court of learned JMFC-II, Amb and thereafter reassigning the same to the Court of learned Additional Chief .
Judicial Magistrate, Amb, came to be allowed, petitioner has approached this Court in the instant proceedings, praying therein to quash and set-aside the aforesaid order.
2. Having regard to the nature of the order proposed to be passed in the instant proceedings, this Court deems it not necessary to issue notice to the respondents because it would not only cause inconvenience to them, rather they would be unnecessarily burdened to engage counsel to represent them in the instant proceeding.
3. Precisely, the grouse of the petitioner, as is highlighted in the petition and has been further canvassed by learned counsel representing the petitioner, is that before passing of order impugned in the instant proceedings neither notice was issued nor opportunity of being heard was given to the petitioner-accused. To substantiate the aforesaid claim, petitioner has placed on record copy of CDR form, whereupon remarks have been given by the Copying Agency that Power of Attorney and notice, if any, issued to the accused are not on record. Learned counsel representing the petitioner-
accused states that since no notice was issued to the accused and no counsel had filed Power of Attorney on her behalf, as is evident from the report given by the Copying Agency on the CDR form, it is not understood that on what basis learned Chief Judicial Magistrate while passing impugned order dated 4.7.2022 recorded the presence of the accused and her counsel.
::: Downloaded on - 28/09/2022 20:04:08 :::CIS 34. Though, there appears to be no reason for this Court to doubt the correctness of the factum of presence of accused alongwith her counsel .
recorded in the order impugned in the instant proceedings, but having taken note of the fact that no notice was issued in the application and no Power of Attorney, if any, was filed by the counsel representing the petitioner-accused, this Court without commenting upon the correctness of the order, deems it fit to dispose of the present petition with a direction to learned court below to decide the application afresh after affording an opportunity of being heard to the petitioner-accused in presence of her counsel.
5. Consequently, in view of the above, the present petition is allowed and order dated 4.07.2022, passed by learned Chief Judicial Magistrate, Una, District Una, H.P., is quashed and set-aside with the direction to learned court below to decide the application afresh, in accordance with law.
The petitioner-accused is directed to remain present either in person or through her counsel before the Court below on 10.10.2022, enabling it to decide the application afresh in accordance with law. It is made clear that in case petitioner-accused fails to cause her presence either in person or though her counsel before the court below on the date fixed by this Court, order dated 4.07.2022 passed by Court below would revive automatically and no more opportunity would be given to the petitioner-accused.
6. Learned counsel representing the petitioner undertakes to supply copy of the instant order to the learned court below, enabling it to do the needful well within stipulated time.
::: Downloaded on - 28/09/2022 20:04:08 :::CIS 47. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of .
this petition alone.
27th September, 2022 (Sandeep Sharma),
(shankar) Judge
r to
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