Daya Ram And 2 Others vs State Of U.P. And Another
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5352 of 2015
 

 
Petitioner :- Daya Ram And 2 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Ravindra Prakash Srivasta
 
Counsel for Respondent :- Govt.Advocate,Shashi Dhar Shukla
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Ravindra Prakash Srivastava, learned counsel for petitioners, learned A.G.A. for State and Mr. Shashi Dhar Shukla, learned counsel representing informant/respondent-2.

2. This petition under Article 227 of the Constitution of India has been filed challenging order dated 26.08.2015 passed by District and Sessions Judge, Sant Kabir Nagar in Criminal Revision No. 05 of 2015, (Mahesh Prasad Vs. State of U.P. and Others).

3. Present petition came up for admission on 18.09.2015 and this Court passed the following interim order:-

"Learned counsel for the petitioners is granted liberty to make correction in the relief clause during the course of the day.

It is urged that in Criminal Revision No. 05 of 2015, preferred by the second respondent against the order of the learned Magistrate rejecting his application under Section 156(3) Cr.P.C., the revisional court directed for impleadment of the suspected persons namely, the petitioners alongwith one Lalji Sahni. In pursuance of the said direction, the second respondent impleaded the petitioners. The revisional court thereafter, issued notices to the newly impleaded opposite parties in the revision. However, it is submitted that without ensuring that service is effected on the petitioners, the revisional court has proceeded to allow the revision and the matter has been remanded back to the learned Magistrate. It is urged that the petitioners have a right to contest the revision, in view of the Full Bench decision of this Court in the case of Jagannath Verma Vs State of U.P. AIR 2014 Alld 214.

Matter requires consideration.

Issue notice to respondent no. 2.

Steps to be taken within a week by registered post.

List after six weeks.

Until the date of next listing, further proceedings in pursuance of the impugned order of the revisional court dated 26.8.2015, shall remain stayed."

4. Pursuant to order dated 18.09.2015, no counter affidavit has been filed by learned A.G.A. or by learned counsel representing respondent-2.

5. During pendency of present petition, concerned Magistrate passed an order dated 26.02.2020, whereby present petitioners were summoned. Accordingly, petitioners filed Crl. Misc. Application (under Section 482 Cr.P.C.) No. 148 of 2021.

6. In the aforesaid application, court passed following order on 25.01.2021:-

"1. Heard Mr. Ravindra Prakash Srivastava, learned counsel for applicant and learned A.G.A. for State.

2. After hearing learned counsel for applicant at length, Court finds that present application under Section 482 Cr.P.C. should be heard alongwith Matter Under Article 227 No. 5352 of 2015 (Daya Ram and 2 others Vs. State of U.P. and another) as it is submitted by learned counsel for applicant that in spite of an interim order dated 18.09.2015 granted in above mentioned Matter Under Article 227 No. 5352 of 2015, court below has proceeded against applicant without allowing the application under Section 156 (3) Cr.P.C.

3. In view of above, connect this application alongwith Matter Under Article 227 No. 5352 of 2015 (Daya Ram and 2 others Vs. State of U.P. and another) and put up before appropriate Bench, if possible as fresh on 02.02.2021, after obtaining an order of nomination from Hon'ble the Chief Justice, if necessary."

7. Subsequent to above order dated 25.01.2021, matter was placed before Hon'ble the Chief Justice/Senior Judge, who vide order dated 02.02.2021 nominated present petition to this Bench. Accordingly, the matter has come up before this Bench.

8. Record shows that respondent-2, Mahesh Prasad Nishad filed an application, under Section 156(3) Cr.P.C. in the Court of Chief Judicial Magistrate, Sant Kabir Nagar. Same was registered as Misc. Application No.936/12/2013, (Mahesh Prasad Nishad Vs. Lal Ji Sahani and Others), P.S.- Mehdawal, District- Sant Kabir Nagar.

9. Aforesaid application came to be rejected by Chief Judicial Magiatrate, Sant Kabir Nagar vide order dated 13.02.2014.

10. Feeling aggrieved by order dated 13.02.2014, respondent-2 filed a criminal revision before District and Sessions Judge, Sant Kabir Nagar in terms of Section 397 Cr.P.C. Same was registered as Misc. Crl. Revision No.66/12/14, (Mahesh Prasad Nishad Vs. State of U.P.).

11. Above-mentioned criminal revision came to be allowed vide order dated 26.08.2015 passed by District and Sessions Judge, Sant Kabir Nagar, whereby order dated 13.02.2014 passed by Chief Judicical Magistrate, Sant Kabir Nagar was set aside and matter was remanded to Chief Judicial Magistrate for decision afresh in accordance with the procedure provided in law.

12. Feeling aggrieved by order dated 26.08.2015, referred to above, petitioners who are prospective accused have now approached this Court by means of present petition under Article 227 of the Constitution of India.

13. Mr. Ravindra Prakash Srivastava, learned counsel for petitioners contends that by virtue of the provisions contained in Section 397 Cr.P.C., the Revisional Court was bound to hear the prospective accused persons, i.e., petitioners herein before finally deciding the revision. However, in the present case, Revisional Court has proceeded to allow the revision filed by respondent-2 without extending any notice or opportunity of hearing to the prospective accused, i.e., petitioners herein.

14. Learned counsel for petitioners has then placed reliance upon Full Bench judgment of this Court in Jagannath Verma and Others Vs. State of U.P. and Another, AIR 2014 Allahabad 214. He has referred to paragraphs- 58, 62 and 64. Same read as under:-

(58) As we have noted earlier, once an application has been filed before the magistrate upon the refusal of the police to investigate under Section 156 (1), the Supreme Court has observed that the magistrate has an option of either proceeding under Section 156 (3) or under Section 200. If the magistrate were to proceed under Section 200 and the complaint is dismissed under Section 203, whether pre- or post-process, the persons who are suspected of having committed the crime have been held to be entitled to be heard in a revision by the complainant under Section 397 against the order of rejection. That being the position, there is no reason or justification to exclude an opportunity of being heard to the persons suspected of having committed the crime when a revision is filed under Section 397 against the rejection of an application under Section 156 (3) for the registration of a case involving a cognizable offence and for investigation by the police. The provisions of Section 401 (2) have been held to require a hearing to a person suspected of having committed a crime when a criminal revision is laid against an order of dismissal of the complaint under Section 203, irrespective of the stage at which the complaint had been dismissed. Equally, there would be no justification to exclude the right of a hearing for, to use the language of Section 401 (2), a hearing has to be afforded to the accused or other person and no order can be made to his prejudice unless he has an opportunity of being heard in his own defence.

(62) The test as to whether a person is entitled to an opportunity of being heard in a challenge to an order passed in an original proceeding by another is not dependant necessarily on whether such a person had a right to be heard in the original proceeding. A person who is entitled to be heard in an original proceeding may legitimately assert a right to be heard when a substantive right created by an order passed in that proceeding is sought to be assailed before a higher forum at the behest of another person. But a right to be heard in revision is not excluded because a person who claims such a right was not entitled to be heard before the original order, which is assailed, was passed in the first instance or merely because a right of a hearing will not be available in the original proceedings on remand. The entitlement of a hearing at a particular stage has to be assessed independently, by considering the consequences of the proceeding in which a hearing is sought. Where a substantial right will be affected, a prejudice is likely to result or a result which has enured to the benefit of a person is sought to be negated, a hearing can legitimately be claimed when the order is assailed in a higher forum. Natural justice in our jurisprudence is not merely a matter of statutory entitlement but is an emanation or recognition of the constitutional right to fair procedure, fair treatment and objective decision making. Hence, a prospective accused is entitled to be heard in revision under Section 397 when an order rejecting an application under Section 156 (3) is assailed. For, such a person would have a legitimate entitlement to defend the order as having been correctly made. The fact that in the event of a remand by the revisional court to the Magistrate, for fresh consideration of an application under Section 156 (3), such a person has no right of a hearing does not preclude a right of a hearing in revision when the original order rejecting an application under Section 156 (3) is assailed.

(64) In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:

(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3) would be amenable to a revision under Section 397 by the complainant or the informant whose application has been rejected;

(ii) An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397; and

(iii) In proceedings in revision under Section 397, the prospective accused or, as the case may be, the person who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the criminal revision.

15. It is thus urged that impugned order dated 26.08.2015 passed by District and Sessions Judge, Sant Kabir Nagar cannot be sustained in law and fact and therefore liable to be quashed by this Court.

16. Per contra, learned A.G.A. and Mr. Shashi Dhar Shukla, learned counsel for respondent-2 have opposed this petition. They jointly contend that once revision filed by respondent-2 has been allowed and remanded to concerned Magistrate for disposal afresh, there is no change in the status of petitioners and they continue to be prospective accused. They therefore contend that impugned order dated 26.08.2015 passed by Revisional Court is perfect, just and legal and therefore not liable to be entertained therein.

17. Before considering the rival submissions, it shall be prudent to reproduce Section 397 Cr.P.C. which reads as under:-

(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.

18. Apex Court in the case of Raghuraj Singh Rosha Vs. Shivam Sundaram Motors Pvt. Ltd. and Another, 2009 (2) SCC 363 has held that opportunity of hearing is required to be given by Revisional Court to a person in whose favour the order has been passed by trial court. Aforesaid judgment has been followed subsequently. The Full Bench decision of this Court in Jagannath Verma and Others (supra) has reiterated the same principle.

19. It is an undisputed fact that the revision was allowed by District and Sessions Judge, Sant Kabir Nagar without hearing the petitioners, who are prospective accused and the order of Magistrate rejecting the application under Section 156(3) Cr.P.C. filed by respondent-2 was in their favour. The Revisional Court in the order impugned in the petition has observed that counsel for the parties have been heard. However, aforesaid findings have been contradicted by categorical pleadings raised in paragraph-18 of the petition, which read as under:-

"That in fact from the perusal of order sheet it is clear that petitioners had no knowledge nor they personally present nor through counsel before the revisional court. A true copy of the questionnaire dated 08.09.2015 and entire order sheet of Criminal Revision No.5 of 2015 is being filed herewith and marked as Annexure No.13 and 14 to this writ petition."

20. No counter affidavit has been filed by either of the respondents. As such the averments made in paragraph-18 of the petition remain uncontroverted.

21. In view of the discussion made above, present petition succeeds and is liable to be allowed. Accordingly, it is allowed. Impugned order dated 26.08.2015 passed by District and Sessions Judge, Sant Kabir Nagar in Crl. Revision No.05 of 2015, (Mahesh Prasad Vs. State of U.P. and Others) is hereby quashed. The District and Sessions Judge, Sant Kabir Nagar shall re-admit Crl. Revision No.05 of 2015, (Mahesh Prasad Vs. State of U.P. and Others) on the board and re-hear the same after extending an opportunity of hearing to petitioners. Parties shall appear before District and Sessions Judge, Sant Kabir Nagar on 08.03.2021.

22. There shall be no order as to cost.

Order Date:- 05.02.2021

Saif