CRR No.M-2161 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.M-2161 of 2009 Date of Decision : 15.12.2011 Inder Singh ...Petitioner Versus State of Haryana and another ...Respondents CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present :Mr. P.R.Yadav, Advocate, for the petitioner. Mr. Raja Sharma, Asstt. Advocate General, Haryana for respondent No.1-State. Mr. Vaneet Soni, Advocate, for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) It is the contention of the counsel for the petitioner that as there is no allegation against the petitioner on the basis of which application under Section 319 Cr.P.C. could have been moved by the prosecution or could have been allowed by the Court the learned trial Court has, therefore, rightly declined the application moved by the complainant against the petitioner. The Court had further taken into consideration the fact that as far as the complainant is concerned in the DDR dated 24.12.2006, Exhibit DA, there is no allegation that the petitioner gave fist blow on the right cheek of the complainant. His further contention is that the statement given by Virender Singh-complainant, PW-1 made in the trial Court that the petitioner had given fist blow in stomach is also not correct as it is totally contrary to the statement got recorded by him in the DDR dated 24.12.2006, Exhibit DA, on the basis of which the FIR was CRR No.M-2161 of 2009 -2- registered. His further contention is that the revisional Court could not have straight way allowed the revision petition without hearing the petitioner in the light of Section 401 of the Code of Criminal Procedure, which mandates that before an adverse order has to be passed against a person, he has a right to be heard. That apart, he contends that the order passed by the learned Additional Sessions Judge being without any jurisdiction cannot be sustained for the Court should have remanded the case to the trial Court for reconsideration and thereafter, the petitioner could have been summoned. Accordingly, he prays for the present petition may be allowed. Counsel for the respondent, on the other hand, submits that as the complainant-Virender Singh has appeared before the Court and specifically stated that he has given fist blow on the stomach of the complainant there was evidence before the Court to summon the petitioner and therefore, he has been rightly summoned. However, it is clarified by the counsel for the complainant that in the DDR, Exhibit DA, there is mention of a fist blow given by the petitioner to the brother of the complainant, namely, Satbir Singh. However, he could not dispute the contention of the counsel for the petitioner that the petitioner had a right in law of being heard before an adverse order against his interest could be passed by the revisional Court in the light of Section 401 Cr.P.C.. I have heard learned counsel for the parties and gone through the records of the case. In the light of the provisions contained under Section 399 read with Section 401 of the Code of Criminal Procedure and specifically sub-section (2) of Section 401, which states that no order under this Section shall be made to the prejudice of 'the accused' or 'other person' unless he has an opportunity of being heard either personally or by his CRR No.M-2161 of 2009 -3- pleader in his own defence, leaves no manner of doubt that even if the petitioner is not an accused, in the light of the Supreme Court in the case of Dr. S.S.Khanna Vs. Chief Secretary, Patna and others, 1983 SCC (3) 42, he would be covered under the term 'other person'. It cannot be disputed that the findings, which have been recorded by the Revisional Court in the impugned order dated 02.07.2009, is an order which is prejudicial to the petitioner. If that be so, the mandate of Section 401 clearly requires him to be given an opportunity of being heard either personally or by the pleader in his own defence, which the learned Revisional Court failed to do. Similar is the view taken by the Rajasthan High Court in the case of B.B.Mohanti vs. State of Rajasthan and another, 2009(5) R.C.R.(Criminal) 167. That leaves no option to this Court but to set aside the impugned order dated 02.07.2009 passed by the Additional Sessions Judge, Narnaul, which order has been made without giving an opportunity of hearing to the petitioner and that too to his prejudice. On perusal of the order dated 05.05.2009 passed by the Additional Chief Judicial Magistrate, Narnaul, I am of the considered view that no just and reasonable grounds have been given by the Court for rejecting the application moved by the complainant under Section 319 as is apparent from the submissions made by the counsel for the parties referred to above. The details are not being elaborated or commented upon lest the trial Court is influenced by it in any manner while passing a fresh order. In view of the above, present petition is allowed. Impugned order dated 02.07.2009 passed by the learned Additional Sessions Judge, Narnaul is hereby set aside. Order dated 05.05.2009 passed by the Additional Chief Judicial Magistrate, Narnaul is also set aside. CRR No.M-2161 of 2009 -4- Additional Chief Judicial Magistrate, Narnaul shall pass a fresh order in accordance with law. 15.12.2011 (AUGUSTINE GEORGE MASIH) adhikari JUDGE