Crl. Rev. No. 2770 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 2770 of 2009 Date of decision:- 27.1.2010 Smt. Raj Saini & Ors. ... Petitioners. Versus Parkash Saini ... Respondent. CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. N.K.Sanghi, Advocate, for the petitioner. Mr. Jai Vir Yadav, Advocate, for the respondent. Gurdev Singh, J (oral) Petitioners - Raj Saini, Vishav Saini, Vijay Saini and Murti Devi, have preferred this revision against the order dated 1.5.2009 passed by the learned Additional Sessions Judge, Rewari, vide which he set aside the order dated 24.5.2008 passed by the Judicial Magistrate Ist Class, Rewari, dismissing the complaint of Parkash Singh-respondent/complainant filed against them under Sections 323, 324 and 506 IPC. The brief facts relevant for the disposal of the revision petition, are that above said complaint was filed on the allegations that on 8.9.2002 at about 6:00 PM the complainant went to the spot after he came to know that petitioner No.1 was removing the board of Parkash Hospital and Nursing Home by re-painting the same in the name and style of Smt. Raj Rani Hospital and Nursing Home. When he asked the painter not to do so petitioner No.1 became furious and started struggling. The other petitioners also came to the spot and at that time Vishav Saini – petitioner No.2 was Crl. Rev. No. 2770 of 2009 -2- holding an iron rod whereas Vijay Saini – petitioner No.3 was holding a danda (wooden baton). He was caught hold of by petitioner No.1 and petitioner No-4 and was slapped by them. Petitioner No.2 gave a blow with his iron rod and petitioner No.3 gave blows with the help of danda to the complainant. He went to PHC where first aid was given to him and he was also medico-legally examined by the Doctor. He filed a private complaint before the Magistrate in which the preliminary evidence was recorded in the form of the statement of complainant PW-1 and Balli Saini PW-2, who is alleged to be one of the eye-witnesses. Documents were also tendered during the preliminary evidence. However, that preliminary evidence did not find favour with the Judicial Magistrate, who dismissed the complaint, vide his order dated 24.5.2008 on the ground that the complainant was medically examined after the delay of twenty four hours of the occurrence and there was no reason/explanation for the same and there was a contradiction about the taking of the complainant to PHC on the day of occurrence itself and there was no corroboration to the statement of the complainant. The complainant preferred a revision which was accepted by learned Additional Sessions Judge, Rewari, who vide aforesaid order came to the conclusion that there was prima facie evidence against the petitioners for summoning them. The order passed by the Magistrate was set aside without any further direction to the Magistrate. Notice of the revision was given to the complainant/respondent. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioners that impugned order could not have been passed without issuance of notice to Crl. Rev. No. 2770 of 2009 -3- the complainant. He also submitted that the revisional Court was required to pass an order for directing further enquiry. He also tried to touch the merits of the case, but could not make out a strong case and was not able to refute the findings recorded by the learned Additional Sessions Judge. He relied upon judgments passed in Ramswaroop & Ors. Vs. State of Rajasthan and Anr., 2007 (Crl) L.J, 1929 and B.B.Mohanti Vs. State of Rajasthan & Anr, 2009(5) RCR (Crl) 167. On the other hand, it was contended by learned counsel for the respondent that the revisional Court was not bound to issue notice to the complainant as the complaint was dismissed before summoning the petitioners. He also tried to contend that though the revisional Court did not pass an order for further enquiry, yet it is very much apparent from that order that the Magistrate was directed to issue summons to the petitioners. He has relied upon the judgments passed in Gurdeep Singh Vs. State of Haryana, 2001(2) RCR (Crl) 178 and Raju Vs. Madan Singh @ Bedan Singh, 1997(3) RCR (Crl) 500. In Ramswaroop's case (supra) the complaint was dismissed under Section 203 of the Code of Criminal Procedure. The Revisional Court pass an order which was pre-judicial to the accuse without giving an opportunity of being heard. It was held therein that the order passed by the Revisional Court was liable to be set aside on that ground. In B.B.Mohanti's case (Supra), the complaint filed by the complainant was dismissed and revision was preferred against that order. The Revisional Court decided the case without affording opportunity to the accused. It was held therein that by virtue of Section 401(2) Cr.P.C it was Crl. Rev. No. 2770 of 2009 -4- mandatory upon the revisional Court to serve a notice to the accused and to afford opportunity of hearing prior to acceptance of revision petition. The proposition of law as laid down in Gurdeep Singh's case (Supra) is not applicable to the facts of the present case as in that case complaint was dismissed in default and was never dismissed on merits. However, in Raju's case (Supra), the complaint was dismissed by the Magistrate under Section 203 Cr.P.C., after recording the preliminary evidence. The revision preferred against that order before the Sessions Judge was allowed without issuing notice to the accused. It was held therein that the order passed in revision was not illegal. It was also held that it would be improper and unnecessary to issue notice when the revision is filed against the order dismissing the complaint under Section 203 Cr.P.C. This judgment having been passed by this Court is a binding upon me. Therefore, it cannot be held that notice was required to be issue to the petitioners before the revision was heard and decided by the learned Sessions Judge. It is well settled proposition of law that the revisional Court, while setting aside the order passed by Magistrate dismissing the complainant, is required to pass an order for further enquiry. In the present case no such order was passed. In para No. 8 of the judgment the finding was recorded that there is prima facie evidence against the accused for summoning. However, while setting aside the impugned order no direction was issued to the Magistrate. That is just irregularity and cannot be made a ground for setting aside that order. It cannot be held that this order suffers from any illegality or is incorrect. However, the same is liable to be Crl. Rev. No. 2770 of 2009 -5- modified so as to direct the Judicial Magistrate to hold further inquiry. In view of above discussion, this revision petition is dismissed with the modification in the order of the revisional Court that “the impugned order dated 24.5.2008 passed by Smt. Rachna Gupta, JMIC is set aside and the Judicial Magistrate First Class is directed to conduct further inquiry and to proceed in accordance with law.” January 27, 2010 (Gurdev Singh) tripti Judge