Allahabad High Court
Smt. Meela Yadav And 6 Ors. vs State Of U.P. And Anr. on 24 August, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:171685
Court No. - 50
Case :- CRIMINAL REVISION No. - 3786 of 2019
Revisionist :- Smt. Meela Yadav And 6 Ors.
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Kailash Singh Kushwaha,Ramesh Chandra Yadav
Counsel for Opposite Party :- G.A.,Kalpna Upadhyay,P.K. Upadhyay
Hon'ble Ram Manohar Narayan Mishra,J.
1. Instant criminal revision has been preferred against judgment and order dated 27.09.2019, passed by learned Additional Sessions Judge/ Special Judge (Prevention of Corruption Act), Court No. 4, Varanasi in Criminal Revision No. 118 of 2018 (Ajeet Prasad Vs. State of U.P. and others), whereby learned Additional Sessions Judge has set aside the order dated 17.03.2018 passed by learned Magistrate and remanded the matter to learned Magistrate for deciding the application under Section 156(3) Cr.P.C. afresh in the light of observations made in criminal revision and were directed to appear before the Court of first instance on 21.10.2019.
2. Heard learned counsel for the revisionists, learned A.G.A. appearing for the Sate, learned counsel for respondent No. 2 (the original applicant/complainant) and perused the record.
3. At the outset, learned counsel appearing for respondent No. 2 has submitted that present revision is not maintainable as such because the revisionists are proposed accused and they have not been summoned by courts below to face trial. Even application under Section 15(3) Cr.P.C., wherein they are made accused is yet to be decided by learned Magistrate, in the light of observations made by revisional court in Criminal Revision No. 118 of 2018 as directed in impugned order.
4. Learned counsel for respondent No. 2 placed reliance on judgment of Full Bench of this Court in Father Thomas Vs. State and another reported in (2011) 1 ADJ 333 in support of this contention. He further submitted that in said judgment a Full Bench of this Hon'ble Court held that The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.
5. From perusal of impugned order of learned revisional court, it appears that learned revisional court has set aside the order passed by learned Magistrate, whereby the application under Section 156(3) Cr.P.C. moved by the respondent No. 2 was dismissed and learned revisional court remitted the matter before court below for hearing on application under Section 156(3) Cr.P.C. afresh in the light of observations made in revisional order, as the proposed accused persons are not summoned to face trial or any registration of case or investigation has not been directed by the courts below against the revisionist, as yet and the matter is to be be considered by court of first instance, in the light of directions of revisional court. The present revision is immature as the proposed accused cannot challenge the order on application under Section 156(3) Cr.P.C. unless an order for registration of case and investigation is made against him by any competent court. However, I find a procedural error in impugned order passed by learned revisional court, wherein the revisional court has directed both the parties to appear before the court below, because the hearing on application under Section 156(3) Cr.P.C. moved by an applicant is carried out ex-parte and proposed accused has no role to play unless prayer has been granted by the Court. Even the proposed accused has no right to hearing during consideration of an application under Section 156(3) Cr.P.C. by the Magistrate Court.
6. On the basis of foregoing discussions, the revision is not maintainable and is dismissed as such with observations that the directions of the court below to the extent "that the parties will appear before court below on 21.10.2019" is not sustainable and hereby expunged, that court below is expected to decide the application under Section 156(3) Cr.P.C. as per directions of judgment and order passed by learned revisional court after giving an opportunity of hearing to the applicant/complainant only and the proposed accused may not be directed to appear in the proceedings
7. Keeping in view that the matter is pending since 2019 before this Court, the learned Magistrate is expected to decide the application under Section 156(3) Cr.P.C. afresh within a period of 2 months from date of production of copy of this order, in accordance with law.
Order Date :- 24.8.2023
Nitika Sri.
