Allahabad High Court
Isharar Hussain Khan vs State Of U.P. & Another on 22 April, 2013
Bench: Jayashree Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 25
Case :- CRIMINAL REVISION No. - 1984 of 2009
Petitioner :- Isharar Hussain Khan
Respondent :- State Of U.P. & Another
Petitioner Counsel :- I.N. Pandey,Aditya Narayan,B. Mishra,Birendra Singh,C.B. Mishra,D.M. Tripathi,I.N. Pandey,L.K. Pandey,P.C. Pandey
Respondent Counsel :- A.G.A.,Jamal Ali,Jitendra Kumar Ojha,S.P. Srivastava,W.H. Khan
Hon'ble Mrs. Jayashree Tiwari,J.
Case called out in the revised list.
Heard learned counsel for the revisionist and learned A.G.A.
The present revision has been filed against the order of learned Sessions Judge, whereby directing for quashing the order of the learned Magistrate rejecting the application under Section 156 (3) Cr.P.C.
The contention of the learned counsel for the revisionist is that in the revision against such a rejection, a hearing of the opposite party is a must. It has been consistently held by Hon'ble the Apex Court that unless and until, it is a conclusion arrived at that the accused responsible for an offence, no right to be heard in revision at the premature stage where an application under section 156(3) has been rejected.
As such, the contention raised by the learned counsel for the revisionist does not seem to be sustainable.
In this connection, I have gone through the order passed by the first revisional court. The first revisional court has quashed the order passed by the learned Magistrate and made certain observations in the body of his judgment and directed that he may get the matter registered and make a direction for investigation to the concerned P.O.
I think that part of the direction by the learned lower revisional court is not appropriate and not called for because it is for the learned Magistrate to consider the matter and come to the conclusion that whether he should exercise his powers as conferred under Section 156(3) Cr.P.C. Accordingly, it was more expedient on the part of the learned lower revisional court to have remanded the matter to the learned Magistrate for re-consideration and pass afresh order speaking and well reasoned as to whether, prima facie a cognizance offence is made out or not and if so made out to direct for registration and for investigation of the case.
The order passed by the learned lower revisional court is modified to the extent that instead of giving a direction to the learned Magistrate to act in a particular manner, it is directed that learned Magistrate may re-consider the matter afresh and pass reasonable and speaking order thereon in accordance with law.
The order passed by the learned lower revisional court is partly allowed.
The parties to appear before the learned lower court on 30.4.2013.
Order Date :- 22.4.2013
Monika
