Crl. Misc. No. M-26476 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-26476 of 2010 Date of Decision : 13.10.2011 Nirmala Devi & another .......... Petitioners Versus State of Haryana & another ...... Respondents CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. Sanjay Vashisth, Advocate for the petitioners. Mr. Raja Sharma, AAG, Haryana. Mr. Minderjit Yadav, Advocate for respondent No.2. **** AUGUSTINE GEORGE MASIH, J. (ORAL) This petition under Section 482 of the Code of Criminal Procedure is for quashing of the order dated 21.4.2010 (Annexure P-9) passed by the learned Addl. Sessions Judge, Rewari setting aside the order dated 25.4.2009 passed by the Addl. Chief Judicial Magistrate, Rewari vide which the complaint filed by respondent No.2 Smt. Sharda Devi was dismissed. Through the impugned order the petitioners were ordered to be summoned for the commission of offence punishable under Sections 323 and 506 of the Indian Penal Code (hereinafter referred to as 'IPC'). It is the contention of the counsel for the petitioner that Nirmala Devi-petitioner No.1 got registered an FIR No. 144 dated 23.6.2007 under Sections 452, 323, 34 IPC against Sharda Devi-respondent No.2, Krishan Kumar, Sarla and Sumitra. In the said FIR, after investigation challan was presented against Sharda Devi-respondent No.2, Krishan Kumar and Sarla Crl. Misc. No. M-26476 of 2010 -2- while Sumitra was kept in column No.2. As a counter blast to the registration of an FIR, one criminal complaint No. 140-RT dated 30.7.2007 was filed by Smt. Sharda Devi against the petitioners Satyabir and Bir Singh. Learned Addl. Chief Judicial Magistrate vide order dated 25.4.2009, on consideration of the complaint and the evidence led by the complainant dismissed the complaint being devoid of any merit, as it was a clear case of counter blast against the petitioners. Against this order Criminal Revision RBT No. 09 of 2009 was filed by complainant Smt. Sharda Devi- respondent No.2. This revision petition was decided by the learned Addl. Sessions Judge, Rewari vide order dated 21.4.2010 by holding therein that the order passed by the learned trial Court dated 25.4.2009 was grossly and manifestly erroneous and while setting aside the said order observed that there were sufficient grounds to proceed against the petitioners i.e. Smt. Nirmala Devi and Ravi Kumar and they were ordered to be summoned for commission of offences punishable under Sections 323 and 506 of the IPC. It is at this stage that the present petition has been filed by the present petitioners being aggrieved of the order. Counsel for the petitioners contends that the learned revisional Court could not pass an order without giving the petitioners an opportunity of being heard in the light of the provisions of Section 401(2) of the Cr.P.C. which mandates that if an order under this Section is to be made to the prejudice of the accused or other person he is to be given an opportunity of being heard either personally or by pleader in his own defence, which has not been done. He contends that the petitioners were arrayed as respondents but despite that being so the learned revisional Court has proceeded to pass the impugned order, which is in total violation of the statutory provisions and, therefore, cannot be sustained. Even otherwise, he contends that the order passed by the learned revisional Court is erroneous and is contrary to the findings, which Crl. Misc. No. M-26476 of 2010 -3- have been recorded by the trial Court while considering the evidence led by the complainant therein. He accordingly, prays for quashing of the said order dated 21.4.2010 (Annexure P-9) and dismissal of the complaint preferred by respondent No.2-Smt. Sharda Devi. Notice was issued in the present case to the respondents. Since it is a private complaint State has no role. On 1.11.2010 Mr. Prashant Bhardwaj, Advocate had appeared for the complainant but despite opportunities granted, no reply has been filed on behalf of respondent No.2, although, reply has been filed on behalf of respondent No.1, but the same is only a formal reply as the State is not a contesting party. Counsel for respondent No.2 contends that the findings recorded by the revisional Court are based on records and do not call for any interference by this Court. I have heard counsel for the parties and have gone through the records of the case. Although, the counsel for the petitioners has submitted that the Court must proceed to decide the case on merits but in the light of the fact that there is an error apparent on the record, which has been committed by the revisional Court by ignoring the provisions of Section 401(2) of the Cr.P.C. this Court is not proceeding to decide the case on merits. 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 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 Crl. Misc. No. M-26476 of 2010 -4- 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.” It would not be out of way to mention that the powers of Sessions Judge of revision are provided under Section 399 of the Code of Criminal Procedure, wherein the same powers as provided under Section 401 Cr.P.C. to the High Court has been conferred on the Sessions Judge. In the light of the provisions as contained in sub Section 2 of Section 401 Cr.P.C., the order which has been passed against the petitioners, is no doubt prejudicial to their interest and, therefore, they were required to be given an opportunity of being heard either personally or by a pleader in their own defence, which the learned revisional Court has violated while passing the impugned order despite the petitioners being respondents to the revision petition preferred by the complainant-respondent No.2. In a similar situation this Court while deciding Crl. Misc. No.M- 36227 of 2009 Ajay Partap Singh vs. Gurdial Singh, decided on 29.9.2011, held as follows :- “The contention as raised by the counsel for the respondent, when looked in the light of the provisions contained under Section 398 of the Code of Criminal Procedure, is correct Crl. Misc. No. M-26476 of 2010 -5- that till the stage when the complaint was dismissed by the trial Court the petitioner had no right of hearing nor was he an accused, who was discharged but when seen in the light of the provisions contained under Section 399 read with Section 401 of the Code of Criminal Procedure and specifically Clause 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 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 (supra), 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 22.08.2005, 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, despite he being a respondent in the revision petition.” After observing as above, relying upon the judgment of the Rajasthan High Court in the case of B.B.Mohanti vs. State of Rajasthan and another, 2009(5) R.C.R.(Criminal) 167 and on reproduction of para 12 to 14 thereof, this Court proceeded to set aside the impugned order passed by the learned revisional Court, wherein no opportunity was given of hearing to the petitioners before passing the order, which was prejudicial to them. In view of the above, the impugned order dated 21.4.2010 passed by the learned Addl. Sessions Judge, Rewari (Annexure P-9) cannot sustain and is hereby quashed. However, a direction is issued to the learned Revisional Court to decide Criminal Revision, RBT No. 09 of 2009 afresh in accordance with law by giving an opportunity to the petitioners of being heard. All consequential proceedings arising before the trial Court as a consequence of the order,which has been set aside by this Crl. Misc. No. M-26476 of 2010 -6- Court, if any, shall also have no effect. Parties are directed to appear before the Sessions Judge, Rewari on 7.11.2011. Copy of the order be sent to the learned Sessions Judge, Rewari forthwith. 13.10.2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE