Narendra Bansal vs State & Anr
2019 Latest Caselaw 1233 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of Order: February 25, 2019

+     CRL.M.C. 1967/2017 and CRL.M.As. 8099/2017 & 17607/2017
+     CRL.M.C. 2429/2017 and CRL.M.As. 9834-9835/2017 &
      CRL.M.A. 1234/2018
+     CRL.M.C. 2430/2017 and CRL.M.As. 9836-9837/2017 &
      CRL.M.A. 1237/2018

      NARENDRA BANSAL
      ARUP CHATTERJJEE
      KARMVEER                                             .....Petitioners
                  Through:                 Mr. Dayan Krishnan, Senior
                                           Advocate with Mr. Hemant Shah,
                                           Advocate
                    Versus

      STATE & ANR                                            ..... Respondents
                          Through:         Ms. Neelam Sharma, Additional
                                           Public Prosecutor for State
                                           Mr. Vikas Pahwa, Senior Advocate
                                           with Mr. Sumer Singh Boparai and
                                           Mr. Shadman A. Siddiqui for
                                           Respondent No. 2
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR
                   ORDER

(ORAL) The question posed in these petitions is whether the revisional court while setting aside order dismissing application under Section 156(3) of Cr.P.C., can remand the matter back to trial court without hearing the accused/suspect.

With the consent of learned Senior Counsel for the parties, the above captioned three petitions have been heard together and are being

disposed of by this common order while treating Crl.M.C. 1967/2017 as the lead case.

Trial court vide order of 8th March, 2017 has dismissed the application under Section 156(3) of Cr.P.C. preferred by respondent- complainant at the pre-summoning stage. Respondent-complainant's revision petition stands allowed vide order of 1st May, 2017 which remands the matter back to trial court to consider respondent- complainant's application under Section 156(3) of Cr.P.C. and to pass necessary orders for registration of FIR and investigation in the matter to ascertain the truth.

Learned Senior Counsel for petitioners relies upon Supreme Court's three judge Bench in Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel & Ors., (2012) 10 SCC 517 to submit that in view of Section 401(2) of Cr.P.C, the suspect has right of hearing before Revisional Court although, the impugned order was passed without their participation. It is submitted that Supreme Court in Manharibhai Muljibhai Kakadia (Supra) while dealing with an application under Section 156(3) of Cr.P.C., has held that accused/suspect ought to be heard before any orders are passed by the revisional court.

On the contrary, learned Senior Counsel for respondent- complainant relies upon a decision of Coordinate Bench of this Court in 'Rajesh Dubey Vs. State & Ors.' 2013 SCC Online Del 3637 to submit that after taking into consideration Supreme Court's decision in Manharibhai Muljibhai Kakadia (Supra), it has been held that application under Section 156(3) of Cr.P.C. has to be considered on the basis of

material already available on record and since no prejudicial order has been passed against accused, so the presence of accused is not required at this juncture.

Upon hearing and on perusal of the impugned order, material on record and the decisions cited, I find that the dictum of Supreme Court in Manharibhai Muljibhai Kakadia (Supra) is quite unambiguous. The aforesaid decision has clearly reiterated that the suspects have the right of hearing before the revisional court although, the order impugned is passed without their participation and this is so, in view of Section 401(2) of Cr.P.C. and the stage, whether it is pre-process stage or post-process stage is not important.

Applying the ratio of Supreme Court's three judge Bench decision in Manharibhai Muljibhai Kakadia (supra) to the facts of instant case, impugned order of 1st May, 2017 is hereby set aside, with direction to revisional court to hear petitioners in the revision petition of respondent- complainant. Revision petition is restored for expedited hearing. Parties to appear before revisional court through their counsel on 12th March, 2019. Respondent-complainant shall file an amended Memo of Parties before the revisional court after impleading the petitioners herein.

With aforesaid directions, these petitions and applications are accordingly disposed of while refraining to comment upon merits, lest it may prejudice petitioners before trial court.

(SUNIL GAUR) JUDGE FEBRUARY 25, 2019 p'ma