Rajasthan High Court - Jodhpur
Ramji Lal Yadav @ Ramnarayan & Ors. vs State Of Rajsthan & Ors. on 26 March, 2015
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B. CRIMINAL MISC. PETITION NO.2898/2014
Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
O R D E R
S.B. CRIMINAL MISC. PETITION NO.2898/2014
Ramji Lal Yadav @ Ramnarayan & Ors.
V/S
State of Rajsthan & Ors.
Date of Order : 26.03.2015
PRESENT
HON'BLE MR. JUSTICE VIJAY BISHNOI
Mr I.R. Choudhary
Mr Rajendra Choudhary, for petitioners.
Mr R.K. Bohra, Public Prosecutor.
Mr Prashant Sharma, for respondent Nos.2 and 3.
BY THE COURT:-
This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners being aggrieved with the order dated 16.07.2014 passed by Additional Sessions Judge, Bali, District Pali (hereinafter referred to as 'the revisional court') in Criminal Revision Petition No.30/2013, whereby the revision petition filed by the respondent No.2 was allowed and the order dated 18.04.2013 passed by Judicial Magistrate, First Class, Desuri, District Pali (hereinafter referred to as 'the trial court') in Criminal Case No.53/2012 has been set aside and the S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors. 2 matter was remanded to the trial court for passing a fresh order.
Brief facts of the case are that on the basis of complaint filed by the respondent No.2 before the trial court, the FIR No.104/2011 has been registered at Police Station, Desuri, District Pali on 16.11.2011. After thorough investigation, the police has filed charge-sheet against the respondent No.3-Rakesh Yadav S/o Nanag Ram Yadav for the offences punishable under Sections 498-A, 323 and 406 IPC. The trial court thereafter took cognizance against the respondent No.3-Rakesh Yadav for the aforesaid offices on 07.01.2012. Later on, the respondent No.2 moved an application under Section 190(1)(B) Cr.P.C. and prayed that cognizance be also taken against Nanag Ram, Kamla Yadav, Ramji Lal, Anju Yadav and Maya Yadav. The said application was dismissed by the trial court vide order dated 18.04.2013 while observing that as the cognizance has been taken against accused Rakesh Yadav on 07.01.2012 the same order can not be reviewed, hence, the application filed by the respondent No.2 for taking cognizance S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors. 3 against other persons is liable to be dismissed. Being aggrieved with the order dated 18.04.2013 passed by the trial court, the respondent No.2 preferred a revision petition before the revisional court and the same was allowed by the revisional court vide order dated 16.07.2014, whereby the order dated 18.04.2013 passed by the trial court has been set aside and the matter was remanded to the trial court to pass a fresh order.
Learned counsel for the petitioners has submitted that the order passed by the revisional court has ex-facie illegal as before passing the said order, no opportunity of hearing was provided to the petitioners. It is contended that as per the provisions of sub- section (2) of section 401 Cr.P.C., the accused persons are entitled for an opportunity of being heard before passing of any order by the Sessions Court while exercising its revisional jurisdiction. Learned counsel for the petitioners has placed reliance on the decisions of Hon'ble Supreme Court rendered in Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors. 4 Mohanbhai Patel & Ors. reported in 2013 CRI.L.J. 144 and Bal Manohar Jalan Vs. Sunil Paswan reported in (2012) 10 SCC 517.
Learned counsel for the petitioners has argued that since the revisional court has passed the impugned order without giving any opportunity of hearing to the petitioner, the same is liable to be set aside.
Per contra, learned Public Prosecutor as well as learned counsel for the respondent Nos.2 and 3 have opposed the prayer of the petitioners and have submitted that the revisional court has not committed any illegality in passing the impugned order.
Heard learned counsel for the petitioners and perused the impugned orders.
Section 401 Cr.P.C. reads as under:-
"401. High Court's powers of revision.
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors.5
Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(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.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies
and no appeal is brought, no
proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
Section 399 Cr.P.C. reads as under:-
"399. Sessions Judge's powers of revision.
(1) In the case of any proceeding the S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors.6
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.
(2) Where any proceeding by way of
revision is commenced before a
Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."
As per sub-section (2) of Section 399 Cr.P.C., where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1) of section 401, the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors. 7 proceeding.
The Hon'ble Supreme Court in Manharibhai Muljibhai Kakadia's case (supra) has held as under:-
"54. .... In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage."
The Hon'ble Supreme Court in Bal Manohar Jalan's case (supra) after placing reliance on Manharibhai Muljibhai Kakadia's case (supra) has laid down the similar principle. In the present case, admittedly, before passing the order dated 16.07.2014, the revisional court did not provide any opportunity of hearing to the petitioners and therefore, the order passed by the trial court is illegal as the same is in contravention of sub-section (2) S.B. CRIMINAL MISC. PETITION NO.2898/2014 Ramji Lal Yadav @ Ramnarayan & Ors. V/S State of Rajsthan & Ors. 8 of section 401 Cr.P.C.
Resultantly, this criminal misc. petition is allowed. The order dated 16.07.2014 passed by the Additional Sessions Judge, Bali, District Pali in Criminal Revision Petition No.30/2013 is set aside and the matter is remanded to the Additional Sessions Judge, Bali, District Pali to pass a fresh order in Criminal Revision Petition No.30/2013 filed by the respondent No.2 after providing opportunity of hearing to the petitioners.
Stay petition stands disposed of.
[VIJAY BISHNOI],J.
Abhishek 3