Balendu Kumar Gupta @ Balendra ... vs The State Of Jharkhand
2021 Latest Caselaw 4924 Jhar

      IN       THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 232 of 2019

      1. Balendu Kumar Gupta @ Balendra Kumar Gupta
      2. Navin Kumar @ Naveen Kumar Gupta
      3. Niranjan Kumar Gupta @ Niranjan Gupta .....          ... Petitioners
                                   Versus
      1. The State of Jharkhand.
      2. Ashok Kumar Paswan                            ..... ...     Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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      For the Petitioners       :        Mr. Gautam Kumar, Advocate
      For the State             :        Mr. Satish Prasad, A.P.P.
      For the O.P. No. 2        :        Mrr. D.D. Shaha, Advocate.
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08/ 20.12.2021     Heard Mr. Gautam Kumar, learned counsel appearing for the

petitioners and Mr. Satish Prasad, learned A.P.P. for the State and Mr. D.D. Shaha, learned counsel appearing for the O.P. No. 2.

2. This criminal miscellaneous petition has been filed for quashing of the order dated 04.01.2019 passed by the learned Sessions Judge, Sahibganj, in Cr. Rev. No. 58 of 2018, whereby the application filed by the O.P. No. 2 was allowed by the revisional court and the matter was remitted back to the Trial Court to take the fresh order in accordance with law. Thereafter in the said case cognizance has been taken against the petitioners and this Court vide order dated 01.07.2019 passed in I.A. No. 3454 of 2019 has directed to challenge the cognizance order dated 13.03.2019. As such both the orders are under challenge.

3. Mr. Bharat Kumar, learned counsel appearing for the petitioners submits that in the revisional court, the petitioners were not heard and the order has been passed, which is in violation of Section 401(2) of the Cr.P.C. He submits that the cognizance under the SC/ST (Prevention of Atrocities) Act has been taken vide order dated 13.03.2019 is also bad in law.

4. Leaned counsel appearing for the O.P. No. 2 is not in a position to demolish the arguments of learned counsel appearing for the petitioners so far Section 401(2) Cr.P.C. is concerned. However, he submits that there is no illegality in the impugned order.

5. Entire ordersheet has been annexed as Annexure-5 to this petition, from which, it transpires that no notice has been issued upon the petitioners and without hearing the petitioners the order has been passed by the revisional court on the basis of which, cognizance has been taken under the sections of SC/ST (Prevention of Atrocities) Act by the Trial Court.

6. It is well settled that if any petition filed within the revisional court in a complaint case under Section 203 of Cr.P.C. at the stage under Section 200 or after following the process contemplated under Section 202 of the Cr.P.C. the accused is required to be heard and opportunity of hearing is the mandate of law.

7. Reference may be made in the case of Manharibhai Muljibhai Kakadia & Anr. Versus Shaileshbhai Mohanbhai Patel & Ors., reported in (2012) 10 SCC 517, wherein in para-53 the Hon'ble Supreme Court has held as follows:-

"53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A. N. Santhanam. We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled."

8. In view of the above facts and considering the law in this regard, the impugned order dated 04.01.2019 passed in Cr. Rev. No. 58 of 2018 by the learned Sessions Judge, Sahibganj and the order dated 13.03.2019 which is on the strength of revisional order passed by the learned S.D.J.M., Sahibganj, in Borio (J) P.S. Case No. 180 of 2017, whereby cognizance has been taken against the petitioners, are hereby quashed and set aside. The matter is remitted back to the Court of learned Sessions Judge, Sahibganj (the revisional court) to provide an opportunity of hearing to the petitioners and pass a fresh order in accordance with law.

9. With the aforesaid observation and direction, this criminal miscellaneous petition stands disposed of.

(Sanjay Kumar Dwivedi, J.) Amitesh/-