CRM No.M-21086 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M-21086 of 2009 (O&M) Date of Decision : 14.12.2011 Vinod & others ... Petitioners versus State of Haryana & another ... Respondents CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. Jainainder Saini, Advocate for the petitioners. Mr. Raja Sharma, AAG, Haryana. Mr. Ashish Aggarwal, Advocate for respondent No.2. **** Augustine George Masih, J. Challenge in this petition is to the order dated 14.07.2009 (Annexure P-2) passed by Addl. Session Judge, Panipat vide which revision filed by respondent No.2 challenging the order dated 14.01.2009 (Annexure P-1) passed by Judicial Magistrate, Ist Class, Panipat in criminal complaint No.312 of 2008 titled as Rajesh vs. Vinod & others dismissing the complaint, was set aside. It is the contention of the counsel for the petitioner that the impugned order could not have been passed by the learned Revisional Court exercising its powers under Section 397 read with Section 401 of the Code of Criminal Procedure without giving an opportunity of hearing to the petitioner as the petitioner was entitled to be heard and he should have been given an opportunity of personal hearing or by a CRM No.M-21086 of 2009 (O&M) -2- pleader in his own defence as the order was prejudicial to the interest of the petitioner. In support of this contention, learned counsel for the petitioner has placed reliance on CRM No.M-36227 of 2009 titled as Ajay Partap Singh vs. Gurdial Singh decided on 29.09.2011. Accordingly, he prays for setting aside the impugned order. On the other hand, counsel for the respondent submits that the petitioner had not been summoned by the Trial court and therefore, he was not required to be heard by the Revisional Court when the revision was taken up for hearing and therefore, supports the order passed by the Revisional Court and prays for dismissal of the present petition. I have heard learned counsel for the parties and gone through the records of the case. Criminal complaint No.312 of 2008 titled as Rajesh vs. Vinod and others was filed by respondent No.2 – Rajesh s/o Attar Singh under Sections 148/149/307/323/324/325/326/427/436 IPC and Section 25 of the Arms Act. On consideration of the preliminary evidence led by him, the learned Judicial Magistrate, Ist Class, Panipat vide order dated 14.01.2009 (Annexure P-1) dismissed the complaint against which criminal revision No. 5 of 2009 was preferred by respondent No.2/complainant in which petitioners were arrayed as respondents apart from the State of Haryana. The Revisional Court proceeded to allow the revision petition by setting aside the order dated 14.01.2009 passed by the trial court but without issuing notice to the petitioners or to the State of Haryana vide order dated 14.07.2009 (Annexure P-2). This order has been passed by the Revisional Court by ignoring the provisions as contained in Section 397 read with Section CRM No.M-21086 of 2009 (O&M) -3- 401 of the Code of Criminal Procedure. This Court in CRM No.M-36227 of 2009 titled as Ajay Partap Singh vs. Gurdial Singh while relying upon the judgment of Rajasthan High Court in the case of B.B.Mohanti vs. State of Rajasthan and another, 2009(5) RCR (Criminal) 167 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 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 397 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.” In view of the above, this Court is left with no option but to set aside the impugned order dated 14.07.2009 (Anneuxre P-2) passed by the Additional Sessions Judge, Panipat which has been made without giving an opportunity of hearing to the petitioners and that too to their CRM No.M-21086 of 2009 (O&M) -4- prejudice. As the parties are present in this Court and in the light of the fact that the petitioners /respondents in criminal complaint have not been heard and they have right of hearing, a direction is issued to the Revisional Court to decide Criminal Revision No.5 of 2009 titled as Rajesh vs. Vinod & others in accordance with law. Parties are directed to appear before the learned Sessions Judge, Panipat on 22.12.2011. Copy of this order be sent to the learned Sessions Judge, Panipat forthwith. December 14, 2011 (Augustine George Masih) sonia Judge