Delhi High Court
Chander Kant Pandit vs Dapinder Pal Singh on 23 February, 2012
Author: Suresh Kait
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 217/2011
% Judgment delivered on:23rd February, 2012
CHANDER KANT PANDIT ..... Petitioner
Through : Mr. P.L. Sharma, Adv.
versus
DAPINDER PAL SINGH ..... Respondent
Through : Mr. MPS Kasana, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The said petition being filed against the impugned judgment dated
21.10.2010, whereby the learned ASJ has reversed the order dated 09.04.
2010 passed in Criminal Complaint No.4910/2009 instituted by Dapinder
Pal Singh/respondent.
2. Vide the said petition, the petitioner has raised the legal ground that
the ld. ASJ has violated the principle of Audi Alteram partem by not issuing
notice and even not given a chance for hearing to the petitioner before
passing the order/judgment dated 21.10.2010 in Crl. Rev. No.30/2010.
3. Being aggrieved by the order dated 09.04.2010 passed by ld.
Magistrate, respondent filed the revision petition No.30/10 before the
sessions court while challenging the same as the petitioner not been
summoned by the trial court.
4. The co-accused, Vaid Prakash Sharma also challenged the same order
passed by the ld. Magistrate, vide revision petition No.54/10.
5. Learned ASJ, thereafter, clubbed both the revision petitions and
passed the common impugned judgment in both the revision petitions.
6. Learned counsel has further submitted that the effected party is the
petitioner who has never been heard or even notice has not been issued in
revision petition No.30/10. Therefore, this is clear cut violation of natural
justice.
7. Learned counsel has relied upon a judgment of the Supreme Court in
the case of Raghu Raj Singh Rousha v. M/s. Shivam Sundasram
Promoters (P) Ltd. & Anr., 2009 [1] JCC 405. Whereby one of the
questions arises for consideration is as to whether the learned magistrate has
taken cognizance of the offence. Indisputably, if he had taken cognizance of
the offence and merely issuance of summons upon the accused persons had
been postponed; in a criminal revision filed on behalf of the complainant, the
accused was entitled to be heard before the High Court.
8. Section 397 of the Code empowers the High Court to call for records
of the case and exercise its power of revision in order to satisfy itself as
regards 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. Sub-section (2) of Section 397 of the Code, however,
prohibits exercise of such power in relation to any interlocutory order passed
in any proceeding. Whereas Section 399 of the Code deals with the Sessions
Judge's power of revision; Section 401 thereof deals with the High Court's
power of revision.
Sub-section (2) of Section 401 of the Code reads, thus:
"(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."
9. Learned counsel for respondent has submitted that the petitioner is the
son of Vaid Prakash Sharma, who has challenged the order dated 9 th April,
2010 by filing a revision petition No.54/10. Therefore, the petitioner was
well aware of the revision being filed against him and he was made a
respondent therein.
10. It is further submitted that both the revisions vide No.30/10 and 54/10
were clubbed and heard together and disposed of by a common order.
Therefore, the petitioner cannot take the ground of not being heard by the
Ld. ASJ.
11. Undisputedly, order dated 9th April, 2010 has been passed in Crl.
Case. No.4910/2009, by the Ld. ACMM/1/Est./Karkardooma, after
considering the facts that the allegations made in Crl. Case No.4910/2009
were of the criminal conspiracy. However, there does not appear sufficient
material on record which show that accused Chander Kant Sharma/petitioner
has any criminal conspiracy with A-1, so he was not summoned.
12. Admittedly, in both revisions mentioned above, neither he was
revisionist nor any notice had been issued by the Ld. ASJ and by passing the
order in the revision order dated 09.04.2010 has been reversed and the
petitioner has been made accused.
13. Therefore, I am of the considered opinion that learned ASJ while
dealing with the revision, would have issued notice in a revision No.30/10
and would have heard the petitioner, which he fails to do so.
14. Keeping in view the facts and circumstances of the case, the order
dated 21.10.2010 passed in revision No.30/10 qua petitioner is set aside.
The learned ASJ is further directed to hear the petitioner and thereafter pass
a fresh order in this regard.
15. As jointly prayed by learned counsel for the parties, to save the
precious public time, they shall appear before the Ld. ASJ on 01.03.2012 for
directions.
16. Accordingly, M.C. 217/2011 is allowed in the above terms.
17. No order as to costs.
18. Dasti.
SURESH KAIT, J
FEBRUARY 23, 2012
rb/jg
