Criminal Miscellaneous No.29745 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- 1. MOTILAL DAS , Son of Doman Sah, resident of Village- Ramgarhwa, P.S. Ramgarhwa, District-East Champaran 2. Gouri Shankar Giri, Son of Kashi Giri , resident of Bishanpur, P.S. Raghunath, District-East Champaran 3. Md. Jahir, Son of Gena, resident of Village- Ramgarhwa, P.S. Ramgarhwa, District- East Champaran 4. Shambhu Prasad, Son of Baijnath Prasad, resident of Village- Madhopur, P.S. Turkolia, Dist- East Champaran 5. Madan Mohan Prasad, Son of R.N.Bhagat, resident of Kachahari Road, P.S. Motihari , District- Champaran 6. Sachidanand Prasad, Son of Late Bahori Sah, resident of Village-Ramgarhwa, P.S. Ramgarhwa, Distt- East Champaran, Motihari -------- Petitioners Versus 1 THE STATE OF BIHAR 2. Rajendra Prasad, Son of Jokhan Sah, resident of Siswaniya, P.S. Ramgarhwa, District- Champaran ---- Opp.Parties. ------------ For the Petitioners: Mr. Uma Shankar Verma, Advocate For the State : Smt. Indu Bala Pandey, A.P.P. ---------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Six petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 17th June, 1998 passed by the learned 4th Addl.Sessions Judge, East Champaran at Motihari in Cr.Revision No.2/39 of 1996/97. By the said order, the learned Addl.Sessions Judge has allowed the revision petition filed by Opp.Party no.2 against the order dated 25.07.1995 passed by the learned Sub Divisional Judicial Magistrate, Raxaul at Motihari . By the said 2 order, the learned Sub Divisional Judicial Magistrate had dismissed the complaint petition under Section 203 of the Code of Criminal Procedure, which was preferred by Opp.Party no.2. 2. Short fact of the case is that Opp.Party no.2 filed a complaint petition vide Complaint Case No.69(C) of 1995 alleging therein that for the purpose of purchasing a piece of land in Plot No.1364 , appertaining to Khata no.19, situated in Village- Ramgarhwa measuring 6 dhurs, the consideration amount of Rs.15,000/- was fixed and after obtaining full consideration amount , accused Sachidanand Prasad , who is petitioner no.6, subsequently, executed a deed in favour of the complainant and, thereafter he took possession of the land in question. The sale deed was executed on 6.4.1995. However, on 30.4.1995, while the complainant wanted to erect hut over the land in question, the accused Sachidanand Prasad and Motilal Das arrived there and restrained him from making construction. Subsequently, the complainant got the matter verified and on verification, it was found that Sachidanand Prasad had virtually executed another sale deed in favour of wife of petitioner no.1. It was also alleged in the complaint petition that accused persons had forcibly taken eight bamboos from the complainant’s land and, accordingly, he has suffered a loss of Rs.320/- also. After filing the complaint petition, the complainant was examined on S.A. and two witnesses were also examined in support of the complaint case. However, by the order dated 25.7.1995, the learned Sub Divisional Judicial Magistrate, Raxaul at Motihari dismissed the complaint petition under Section 203 of the Code of Criminal Procedure 3 on the ground that the dispute was purely civil in nature. Aggrieved by the order of rejection of the complaint petition, the complainant filed a revision vide Cr.Revision No.2/39 of 1996/97. The revisional court by its order dated 17th June, 1998 allowed the revision petition and directed the court below to proceed with the case in accordance with law. The revision petition was filed on 2.1.1996, which is evident from the order dated 17th June, 1998. 3. Aggrieved with the order of Revisional Court dated 17th June, 1998, the petitioners preferred the present petition before this Court. The petition was admitted on 21.2.2000 and while admitting the case for hearing, this Court had directed that pending disposal of the application further proceeding in Cr.Revision No.2/39 of 1996/97 shall remain stayed. By the said order, this Court had directed for issuance of notice to Opp.Party no.2. The order of stay is still continuing. 4. Yesterday, the case was taken up for hearing. However, none appeared on behalf of Opp.Party no.2. Today again when the case was called out, none has come forward to defend the case of Opp.Party no.2. 5. Sri Uma Shankar Verma, learned counsel appearing on behalf of the petitioners has challenged the revisional court’s order firstly on the ground that revisional court without issuing any notice to the petitioners or without hearing the petitioners had passed the order, which is contrary to the established principle of natural justice . He submits that without hearing the petitioners, the learned Addl.Sessions Judge was not authorized to pass an order, which was adverse to the 4 petitioners. Learned counsel for the petitioners further submits that besides setting aside the impugned revisional order on the ground of not giving opportunity to the petitioners, the revisional order is also liable to be quashed on the ground that the revisional court has virtually recorded a finding of guilt of petitioners, even though the learned Addl. Sessions Judge was exercising a revisional power. He submits that the revisional court, while examining the revision petition, has virtually acted as appellate court and after examining the entire evidence, the learned Sessions Judge has held that offence, as alleged in the complaint petition, was proved. Sri Uma Shankar Verma has specifically referred paragraph nos. 8,9 and 10 of the revisional court’s order, which is quoted hereinafter: “8. From the perusal of the complaint petition the examination of the complainant on S.A. and the depositions of E.W.1 Ramjee Prasad and E.W.2 Hari Ram, I find that the prosecution has prima facie proved a case U/s 447,323 and 379 I.P.C. against accused persons, O.Ps. no.1 and 2 namely Sachidanand Prasad and Motilal Das who is servant of Sachidanand Prasad and also lives with him along with his family in his master’s house. I find that O.P. Sachidanand Prasad has also cheated Rajendra Prasad by taking Rs.15, 000/- from him to purchase his land for the same amount. 9. I further find that accused Sachidanand Prasad has executed two sale deed , the Ist in favour of Smt. Bimla Devi W/O complainant Rajendra Prasad on 6.9.94 and 2nd deed forged deed in favour of Motilal Das on 7.12.94 on the basis of an antedated forged deed of contract for sale ( Mahadanama) dated 1.6.94 by entering into conspiracy along with the other O.Ps who are deed 5 writer , witnesses and stamp vendors etc. Both the sale deeds are with respect to the same land. Thus the O.Ps. have also committed on offence u/s 120B , 423 and 468 I.P.C. for which at this stage there is only a prima facie case. The concrete shape of the case will appear during full fledged trial. For the present there is a prima facie case for trial. 10. During the course of an enquiry all that has got to be seen and examined is whether a prima facie case is made out or not. I feel that there is material on record that the prosecution has succeeded in bringing out a prima facie case as discussed above. Both the offences mentioned above are in the same continuation and the criminal intention of the O.Ps is there.” 6. Sri Verma, learned counsel appearing on behalf of the petitioners in support of his stand that the revisional court was not authorized to pass order against the petitioners without giving any opportunity of hearing to them, has relied upon a Judgment of this Court reported in 2004 ( 4) PLJR 468 ( Haridwar Singh @Hardwar Singh & Ors. Vrs. State of Bihar ) .This Court in Haridwar Singh’s case ( Supra) has held that after rejection of the protest –cum- complaint petition, if a revision is filed , the revisional court without giving any opportunity to the accused persons , cannot pass an order for further enquiry by the Magistrate. 7. Smt. Indu Bala Pandey , learned counsel appearing on behalf of the State also submits that the learned Sessions Judge has not passed order in accordance with law. 8. After hearing the parties and examining the materials available on the record, I am of the view that submission of the learned 6 counsel for the petitioners is correct that the learned Sessions Judge before allowing the revision petition, which was preferred against the rejection of the complaint petition, opportunity of hearing should have been given to the petitioners and in absence of such opportunity the revisional order becomes erroneous and on this ground alone the revisional order is liable to be set aside. Besides this, I am of the opinion that while hearing revision petition, the learned Sessions Judge was not required to record a definite finding regarding guilt of the petitioners. In such cases, after setting aside the order of rejection of the complaint petition, the matter should have been remitted back for further enquiry. However, in the present case, the learned Sessions Judge has recorded a finding of guilt, which is not permissible in the eye of law. 10. Accordingly, the order dated 17th June, 1998 passed by the revisional court is set aside and petition stands allowed. Patna High Court,Patna Dated : the 7th May,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )