Anand Dubey vs State & Anr.
2012 Latest Caselaw 2672 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        DATE OF DECISION : APRIL 24, 2012

+       CRL.M.C. 3585/2011

        ANAND DUBEY                       ..... Petitioner
                        Through: Mr.Surinder Singh, Adv.
                   versus

        STATE & ANR                          ..... Respondent
                           Through: Ms.Rajdipa Behura, APP for
                           State/R-1.
                           Mr.Maninder Jeet, Advocate for R-2.

         CORAM:
         HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (Oral)

%

1. This petition has been filed by the petitioner under Section 482 Cr.P.C. praying for fresh consideration of the matter by the learned ASJ in Crl.Rev.No.6/2011, wherein vide order dated 03.05.2011, without issuing notice to the petitioner, direction was given to the learned A.C.M.M for getting the FIR registered against the petitioner.

2. In brief the case of the petitioner is that he was married to the complainant Sangeeta Bharti in a temple and it was a love marriage without any kind of dowry demand. Parties were belonging to different castes as the petitioner was Brahmin whereas the respondent Sangeeta Bharti was from a lower

caste. After the marriage, certain differences arose between the parties which led to filing of complaints/litigations inter se the parties. The respondent No.2 Sangeeta Bharti filed a complaint before the learned ACMM along with an application under Section 156(3) Cr.P.C. for getting an FIR registered against the petitioner.

3. After perusing the status report submitted by the concerned police station and considering the material on record, the learned ACMM was of the view that the allegations levelled by the complainant were not serious in nature and the complainant herself was in possession of evidence to prove the entire allegations, thus there was no need for direction to register FIR. The complainant/respondent No.2 feeling aggrieved from the said order of learned ACMM, filed a revision petition before the Sessions Court.

4. The learned ASJ vide the impugned order dated 03.05.2011 formed the view that the complainant had made serious allegations of rape and offence punishable under provisions of Atrocities on (Scheduled Caste & Scheduled Tribe) Act were made out which were sessions trial. Thus, the revision was accepted, impugned order was set aside and the matter was remanded back to the learned Trial Court for directing the SHO, P.S. Janak Puri to register the FIR.

5. The grievance of the petitioner is that the impugned order has been passed by the learned ASJ without any prior notice to him and in view of pronouncement of the Apex Court in Raghu

Raj Singh Rousha vs. Shivam Sundaram Promoters Pvt. Ltd.and Anr. (2009) 2 Supreme Court Cases 363, the impugned order passed by the learned ASJ is illegal and requires to be set aside with direction to learned ASJ to dispose of the revision petition afresh after issuance of notice to the petitioner and giving him an opportunity of being heard.

6. On behalf of respondent No.2, it has been submitted that though his contention is that no notice was required to be given to the petitioner at pre-cognizance stage, but in order to avoid further delay in disposal of the revision petition, the impugned order may be set aside with direction to the parties to appear before the learned ASJ on the specified date so that both the parties can be heard and the matter can be disposed of.

7. In the case of Raghu Raj Singh Rousha (supra), the respondent No.1 company filed a complaint before the learned MM alleging commission of offences punishable under Section 323/352/420/465/468/471/120-B/506/34 IPC. Along with the complaint, an application under Section 156(3) Cr.P.C. was also filed. However, the learned MM refused to exercise jurisdiction and to direct investigation in terms of Section 156(3) Cr.P.C.. The complainant was directed to lead pre-summoning evidence.

8. In the above-noted case, the order passed by the learned MM was challenged by filing a revision petition and State was impleaded as a respondent. In Criminal Revision Petition, the

High Court, while allowing the petition, set aside the order passed by the learned MM, without hearing the accused and directed the learned MM to examine the matter afresh after calling report from the police authorities. The Apex Court held that in the criminal revision petition filed on behalf of the complainant, the accused was entitled to be heard before the High Court. It was also held that Section 401(2) refers not only to an accused but also to any person and if he is prejudiced, he is required to be heard- An order was passed partially in his favour as Metropolitan Magistrate had refused to exercise its jurisdiction under Section 156(3) - Had an opportunity of hearing been given to the appellant, he could have shown that no revision application was maintainable and/or even otherwise, no case has been made out for interference with the impugned judgment.

9. In the case in hand, after the learned ACMM declined the prayer made in the application under Section 156(3) Cr.P.C. The learned ASJ in exercise of revisional jurisdiction, allowed the revision petition and set aside the order of learned ACMM without giving any notice or opportunity to the petitioner (arrayed as accused in the complaint case) of being heard.

10. It may be noted that the revision petition was filed by the respondent which permitted the High Court or the Sessions Judge to call for or examine the record of proceedings of subordinate criminal court to satisfy himself as to the correctness, legality or propriety of any finding, order or

sentence.

11. Section 401 (2) Cr.P.C. states that no order under this Section shall be made to the prejudice of the accused or any other persons unless he has had an opportunity of being heard either personally or by pleader in his own defence.

12. It cannot be said that the order impugned in this petition i.e. giving direction to the learned M.M. for getting the FIR registered, has not been passed to the prejudice of the petitioner. Since the impugned order is to the prejudice of the petitioner, it should have been passed after giving an opportunity to the petitioner of being heard as held by the Apex Court in Raghu Raj Singh Rousha (supra).

13. In the circumstances, the petition is allowed and the impugned order dated 03.05.2011 passed by the learned ASJ and all proceedings emanating therefrom are set aside. The matter is remanded back to the learned ASJ with the direction to dispose of the revision petition afresh after giving notice/opportunity to the petitioner of being heard.

14. Parties are directed to appear before the learned ASJ on 01.05.2011.

15. CRL.M.C. 3585/2011 is disposed of in the above terms.

PRATIBHA RANI (JUDGE) APRIL 24, 2012/'dc'