Jharkhand High Court
Gauranga Dutta vs The State Of Jharkhand on 17 March, 2021
1 Cr. M.P. No. 908 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 908 of 2010
1. Gauranga Dutta
2. Tarun Kumar Dutta
Both sons of late Manoranjan Dutta, resident of Durga Mandir Road,
P.O., P.S. & District- Dhanbad ... Petitioners
-Versus-
1. The State of Jharkhand
2. Shri Hemlal Marandi, son of Kesto Marandi, resident of Village
Kurmidih, P.O. & P.S. Barwadda, Dist.- Dhanbad ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Indrajit Sinha, Advocate
For the Opposite Party-State : Mr. Rahul Saboo, S.C.-I
For Opposite Party No.2 : Mr. Sheo Kumar Singh, Advocate
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15/17.03.2021. Heard Mr. Indrajit Sinha, learned counsel for the petitioners, Mr. Rahul
Saboo, learned counsel for the opposite party-State and Mr. Sheo Kumar
Singh, learned counsel for opposite party no.2.
2. This quashing application has been filed for quashing the order dated
08.07.2010 passed by the learned Additional District & Sessions Judge, Fast
Track Court V, Dhanbad in Cr. Rev. No. 105 of 2010, whereby, the revision
petition filed by opposite party no.2 has been allowed and the order dated
07.05.2010 passed by the learned Judicial Magistrate, 1 st Class, Dhanbad in
C.P. No.2299 of 2009 has been set aside.
3. A complaint case being C.P. Case No. 2299 of 2009 was filed against
the petitioners under Sections 448, 341, 323, 504 and 500 of the Indian
Penal Code and Section 3/4 of the Schedule Caste and Scheduled Tribes
(Prevention of Atrocities) Act and cognizance was taken under Sections 323
and 506 of the Indian Penal Code and no cognizance was taken under
Sections 3/4 of the Schedule Caste and Scheduled Tribes (Prevention of
Atrocities) Act. Aggrieved with this, the complainant has filed Cr. Rev. No.
105 of 2010, which was allowed without hearing the petitioner and direction
was issued to take cognizance against the petitioner under the Schedule
Caste and Scheduled Tribes (Prevention of Atrocities) Act.
4. Mr. Indrajit Sinha, learned counsel for the petitioners submits that
without providing opportunity of hearing to the petitioner, the revisional
order has been passed, which is against the mandate of law. To buttress his
argument, he relied upon the judgment rendered by the Hon'ble Supreme
Court in the case of Manharibhai Muljibhai Kakadia and another v.
Shaileshbhai Mohanbhai Patel and others , reported in (2012) 10
SCC 517.
5. Paragraphs 46 and 53 of the said judgment are quoted herein
below:
"46. The legal position is fairly well-settled that in the
proceedings under Section 202 of the Code the
accused/suspect is not entitled to be heard on the question
whether the process should be issued against him or not. As a
matter of law, up to the stage of issuance of process, the
accused cannot claim any right of hearing. Section 202
contemplates postponement of issue of process where the
Magistrate is of an opinion that further inquiry into the
complaint either by himself is required and he proceeds with
the further inquiry or directs an investigation to be made by a
police officer or by such other person as he thinks fit for the
purpose of deciding whether or not there is sufficient ground
for proceeding. If the Magistrate finds that there is no
sufficient ground for proceeding with the complaint and
dismisses the complaint under Section 203 of the Code, the
question is whether a person accused of crime in the
complaint can claim right of hearing in a revision application
preferred by the complainant against the order of the
dismissal of the complaint. Parliament being alive to the legal
position that the accused/suspects are not entitled to be heard
at any stage of the proceedings until issuance of process
under Section 204, yet in Section 401(2) of the Code provided
that no order in exercise of the power of the revision shall be
made by the Sessions Judge or the High Court, as the case
may be, to the prejudice of the accused or the other person
unless he had an opportunity of being heard either personally
or by pleader in his own defence.
xxx xxx xxx
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 the 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 the crime is
entitled to hearing by the Revisional Court. In other words,
where the 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
the crime have, however, no right to participate in the
proceedings nor are they 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."
6. Mr. Indrajit Sinha, learned counsel for the petitioners further submits
that petitioner no.1 is 86 years old and petitioner no.2 is 73 years old. He
also submits that now compromise has been taken place between the
parties and counter affidavit has also been filed on behalf of opposite party
no.2, wherein, it has been stated in paragraph 4 that Complaint Case
No.2299 of 2009 was lodged out of total misunderstanding of facts and
circumstances and the complainant does not want to take the legal
proceeding further and contest the case. In paragraph 5 of the counter
affidavit, it has been stated that the petitioner was not heard in Cr. Revision
No. 105 of 2010 and the complainant does not want to pursue this matter
anymore.
7. This aspect of the matter has been accepted by Mr. Sheo Kumar
Singh, learned counsel for opposite party no.2.
8. Mr. Rahul Saboo, learned counsel for the State submits that in the
facts and circumstances of the case, this Court may exercise its power
under Section 482 Cr.P.C.
9. On perusal of the counter affidavit, filed by opposite party no.2, it
transpires that it has been stated that Complaint Case No.2299 of 2009 was
filed out of total misunderstanding of facts and in paragraph 5 of the
counter affidavit, it has been stated that the petitioners were not heard in
Cr. Revision No.105 of 2010. The petitioner was required to be heard in light
of the judgment rendered by the Hon'ble Supreme Court in the case of
Manharibhai Muljibhai Kakadia (supra). Petitioner nos. 1 and 2 are 83 years
and 73 years old respectively. It has been stated before the Court by none
other than son of petitioner no.2, who is present in the Court and who
happened to be the practicing lawyer in the Hon'ble Supreme Court, namely,
Sarabjit Dutta.
10. In view of these admitted facts and considering the fact that
compromise has been made between the parties, the Court comes to a
conclusion that there is no public interest involved in this case and the
petitioners are old aged persons and the power of the Court is governed by
the provisions of Section 482 of the Code of Criminal Procedure. In that
view of the matter, it is a fit case to exercise the power under Section 482
Cr.P.C. Accordingly, the order dated 08.07.2010 passed by the learned
Additional District & Sessions Judge, Fast Track Court V, Dhanbad in Cr. Rev.
No. 105 of 2010 and the order dated 07.05.2010 passed by the learned
Judicial Magistrate, 1st Class, Dhanbad in C.P. No.2299 of 2009 including the
entire criminal proceedings are quashed.
11. Accordingly, this quashing application stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
