Bankey Bihari Rastogi vs The State
2017 Latest Caselaw 8064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9							A.F.R.
 

 
Case :- U/S 482/378/407 No. - 444 of 2009
 

 
Applicant :- Bankey Bihari Rastogi  and others.
 
Opposite Party :- The State
 

 
Counsel for Applicant :- Arun Sinha,Riyaz Ahmad
 
Counsel for Opposite Party :- G.A.,Ratnesh Agnihotri
 

 
Hon'ble Ajai Lamba,J.

1.  The petition has been filed under Section 482 Cr.P.C. for quashing order dated 28.11.2008 passed by Sessions Judge, Lucknow in Criminal Revision No.365 of 2008 : Nidhi Rastogi @ Supriya Rastogi Vs. State of U.P.

The petition also challenges order dated 15.12.2008 passed by Special Judicial Magistrate (C.B.I.)., Lucknow in Case No.133 of 2008 : Nidhi Rastogi Vs. Bankey Bihari Rastogi, under Sections 498-A, 323, 504, 506, 406 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Chowk, District Lucknow.

2.   None has  appeared on behalf of respondent no.2.

3.   The case relates to the year 2009 and the court can no longer wait for the counsel.  

The case is being heard with the assistance of  Shri Siddarth Sinha, Advocate learned counsel for the petitioners.

4.   I have gone through the record of the case.

5.    Learned counsel for the petitioners has pointed out that respondent no.2 Smt. Nidhi Rastogi wife of Nikhil Rastogi initiated criminal proceedings by way of filing criminal complaint Annexure No.1. After recording statements under Sections 200 and 202 of the Code of Criminal Procedure, 1973 (For short the ''Code'), the complaint was dismissed vide order dated  4.10.2008, placed on record as Annexure No.5.

It has been pointed out by learned counsel for  the petitioners that  respondent no.2 carried a revision against order Annexure No.5, which has been allowed vide impugned order dated 28.11.2008 placed on record as Annexure No.6.

Short contention of learned counsel for the petitioners is that the revisional court was bound in law to hear the petitioners who are the accused and who would be prejudiced by order passed by the revisional court.  The petitioners/ accused however, were not arrayed as respondents and were not heard by the revisional court therefore the impugned order dated 28.11.2008 is rendered illegal.

It has been pointed out that after the revision was allowed and the matter was remanded to the Magistrate, the Magistrate passed order dated 15.12.2008 summoning the petitioners to stand trial. The petitioners are aggrieved ; and prejudice has been caused to the rights of the petitioners.

6.   I have considered the facts and circumstances of the case and the relevant provisions of the Code.

7.    Perusal of order dated 28.11.2008 passed by the revisional court demonstrates that the accused were neither arrayed as party to the revision nor were heard by the revisional court.

Provisions of Sections 397, 399 and 401 of the Code are required to be noticed  before proceeding further.  Sections 397, 399 and 401 of the Code read as under :-

"397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

399. Sessions Judge' s powers of revision.

(1) In the case of any proceeding the record of which has been called for by himself, the Sessions judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1), the provisions of sub- sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub- sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of an person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by Way of revision at the instance of such person shall be entertained by the High Court or any other Court.

401. High Court' s Powers of revisions.

(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 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 tan 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."

(Emphasised by me )

8.    Perusal of Sub Section (2) of Section 401 Cr.P.C. makes it mandatory on the revisional court not to pass any order to the 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.

Sub Section (2) of Section 401 Cr.P.C. has to be read with provisions of Sub Section (2) of Section 399 Cr.P.C. that defines the powers of revision of the Sessions Judge. The relevant portions from Section 401 and Section 399 of the Code have been emphasised.

It is settled law that at pre summoning stage, the accused are not required to be heard. It is for the magistrate to consider the contents of the complaint in conjunction with statement of the complainant recorded under Section 200 of the Code and statement(s) of the witnesses under Section 202 of the Code and other material placed before the Magistrate to consider whether to issue process under Section 204 ; or to dismiss the complaint under Section 203 of the Code. At this stage, the accused may observe the proceedings in the court, however, cannot claim a right to be heard.

9. In the case in hand, the Magistrate on considering the entire material available on record vide a reasoned and detailed order (Annexure No.5) dismissed the complaint under Section 203 of the Code finding no merit in the accusations levelled by respondent no.2 complainant.

10. The complainant carried a revision against Annexure No.5 dated 4.10.2008 without impleading the petitioners/accused as respondents. The revisional court, admittedly did not hear the petitioners while allowing the revision petition.

In case the petitioners were heard as required under sub section (2) of Section 401 Cr.P.C. read with Section 399 Cr.P.C., the petitioners could have shown to the revisional court that the order passed by the Magistrate dated 4.10.2008 was legal and passed on the basis of relevant evidence.  Surely, by virtue of setting aside the order passed by the Magistrate dated 4.10.2008, prejudice has been caused to the accused.  

11.   In view of the above, I have no hesitation in holding that it was the right of the petitioners to be heard in revisional jurisdiction.  The petitioners having not been heard, prejudice has been caused to them.   Consequently,  order dated 28.11.2008 passed by Sessions Judge, Lucknow in Criminal Revision No.365 of 2008 : Nidhi Rastogi @ Supriya Rastogi Vs. State is rendered illegal, being violative of Section 399 read with Section 401 of the Code, and therefore is quashed.

Subsequent order dated 15.12.2008 passed by Special Judicial Magistrate (C.B.I.)., Lucknow in Case Crime No.133 of 2008 : Nidhi Rastogi Vs. Bankey Bihari Rastogi, under Sections 498-A, 323, 504, 506, 406 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Chowk, District Lucknow is also quashed.

12.  The petition is allowed in the above terms.

13.     The matter is remanded back to the revisional court which shall again consider the legality of order dated 4.10.2008, after hearing the petitioners, who are accused of committing the offence and are respondents in the criminal complaint case.

14. The parties are directed to appear before the Sessions Judge, Lucknow on 11th January, 2018.

15.   Let a copy of this order be conveyed to Sessions Judge, Lucknow who shall proceed as per law. 

Order Date :- 18.12.2017

Shukla