[Cites 27, Cited by 0]

Punjab-Haryana High Court

Balkar Singh vs State Of Punjab And Anr on 17 April, 2026

                    CRM-M-25385-2022 (O&M)                                                         -1-




                               IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                                           HARYANA AT CHANDIGARH
                    118
                                                                        CRM-M-25385-2022 (O&M)
                                                                        Date of decision : 17.04.2026

                    Balkar Singh                                                       ...Petitioner

                                                          Versus

                    State of Punjab and another                                      ...Respondents

                    CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

                    Present:-       Mr. Harish Goyal, Advocate
                                    for the petitioner.

                                    Mr. Roshandeep Singh, AAG, Punjab.

                                    Mr. J. S. Bhandohal, Advocate
                                    for respondent No. 2.

                    MANISHA BATRA, J. (Oral)

1. The instant petition has been filed under Section 482 of the Code

of Criminal Procedure (for short 'Code') [which corresponds to Section 528

of BNSS, 2023] for quashing of Complaint No. 21 dated 05.06.2018, titled as

Lachhman Singh vs. Mohan Singh and others, filed under Sections 420,

463, 464, 465, 467, 468, 470, 471 and 120-B of IPC and order dated

09.02.2022, passed by the Court of learned Judicial Magistrate First Class,

Fatehgarh Sahib, whereby the petitioner along with the co-accused was

summoned to face trial for commission of aforementioned offences. The

petitioner has also sought quashing of order dated 18.01.2022 passed by the

Court of learned Additional Sessions Judge, Fatehgarh Sahib, whereby the

aforesaid complaint, which was initially dismissed by the learned trial Court

by passing the order dated 26.03.2019, was restored and remanded to the

learned trial Court for deciding the same afresh.

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2. Brief facts relevant for the purpose of disposal of the present

petition are that respondent No.2 had filed the aforesaid complaint against the

petitioner and co-accused Mohan Singh and Kulwant Singh. After recording

of the preliminary evidence, the impugned complaint was dismissed by the

learned Judicial Magistrate First Class, Fatehgarh Sahib, vide order dated

26.03.2019. Being dissatisfied with the order dated 26.09.2019, the

complainant/respondent No.2 filed a criminal revision before the Court of

learned Additional Sessions Judge, Fatehgarh Sahib, which was allowed vide

order dated 18.01.2022 and the complaint was remanded back to the learned

trial Court for deciding the same afresh in view of the observations made in

the order dated 18.01.2022. Subsequent to the remand of the aforesaid case to

the learned trial Court, the petitioner along with the co-accused was

summoned to face trial for commission of aforementioned offences, vide

impugned order dated 09.02.2022. Hence, the petitioner has filed the present

petition seeking quashing of the impugned complaint as well as the

subsequent proceedings having emanated therefrom.

3. Learned counsel for the petitioner has argued that the petitioner

along with the co-accused has falsely been implicated in the impugned

complaint. The impugned complaint as well as the summoning order is not

sustainable in the eyes of law and are liable to be quashed. After appreciating

the preliminary evidence led by respondent No. 2/complaint, the complaint

was initially dismissed by the learned trial Court, vide order dated 26.03.2019,

as the ingredients for commission of alleged offences were not even prima

facie attracted against the petitioner and co-accused. However, respondent

No.2/complainant, being aggrieved against the aforesaid order dated

CRM-M-25385-2022 (O&M) -3-

26.03.2019, filed a criminal revision before the Court of learned Additional

Sessions Judge, Fatehgarh Sahib, which was wrongly allowed by the Court

concerned and that too without issuing any notice to the present petitioner and

thereby not granting any opportunity of being heard. Learned counsel for the

petitioner has further argued that the said course adopted by the learned

revisional Court was totally contrary to the provisions of Section 401 of the

Code (which corresponds to Section 442 of BNSS, 2023) and not sustainable

in the eyes of law. It is, thus, urged that the present petition deserves to be

allowed and the impugned complaint and summoning order as well as all the

subsequent proceedings having emanated therefrom are liable to be quashed.

4. Learned State counsel has not raised any arguments.

5. Learned counsel for respondent No.2/complainant has submitted

that the present petition is misconceived and an abuse of the process of law. It

is argued by him that the revisional Court, vide order dated 18.01.2022, has

rightly exercised its jurisdiction in setting aside the dismissal order dated

26.03.2019, as the learned trial Court had failed to properly appreciate the

preliminary evidence and the material placed on record. The revisional Court

has merely remanded the matter for fresh consideration and has not recorded

any finding on merits, thus causing no prejudice to the petitioner. It is further

argued that at the stage of summoning, only a prima facie case is to be seen

and the learned Magistrate, after due application of the mind to the evidence,

has rightly summoned the petitioner, vide order dated 09.02.2022. The

veracity and correctness of the allegations can only be adjudicated during trial

and not in proceedings under Section 482 of the Code. With regard to the plea

of non-issuance of notice in revision, it is argued that no substantive prejudice

CRM-M-25385-2022 (O&M) -4-

has been caused to the petitioner as he has been granted full opportunity to

contest the case before the trial Court post remand. The petitioner can raise all

permissible defences during trial. Therefore, it is urged that the present

petition for quashing of the complaint and summoning order, involving

disputed questions of fact, is not maintainable and is liable to be dismissed.

6. This Court has heard the rival submissions.

7. What is revealed from a perusal of the record is that respondent

No.2/complainant had filed the impugned complaint against the petitioner and

others, which came to be dismissed by the learned Magistrate on 26.03.2019

after consideration of the preliminary evidence. Aggrieved by the said order,

the complainant preferred a revision petition before the learned Additional

Sessions Judge, who allowed the same vide order dated 18.01.2022 and

remanded the matter for fresh decision. However, the said order was passed

without issuing any notice to the petitioner and without affording him any

opportunity of hearing. Pursuant to the remand, the learned Magistrate

summoned the petitioner vide order dated 09.02.2022, which has led to the

filing of the present petition under Section 482 of the Code seeking quashing

of the complaint and all subsequent proceedings arising therefrom.

8. Relevant for the purpose is Section 397 of the Code (which

corresponds to Section 438 of BNSS, 2023), which empowers the High Court

or the Sessions Judge to call for an examine the record of any proceeding

before any inferior court situate within its or his local jurisdiction for the

purpose of satisfying itself or himself as to the correctness, legality or

propriety, inter alia, of any order passed by such inferior court. The powers of

revision are concurrent with the High Court and Sessions Judge. By virtue of

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Section 399 of the Code, the Sessions Judge may exercise all or any of the

powers which may be exercised by the High Court under sub-section (1) of

Section 401 of the Code and while doing so the provisions of sub-sections (2),

(3), (4) and (5) of Section 401 of the Code apply to such power as far as

possible. Section 401 of the Code deals with High Court's power of revision

and it reads as follows :

"S. 401. High Court's powers of revision.

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (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.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so MOHAMMAD WASEEM ANSARI to do, the High Court may treat the application for revision

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as a petition of appeal and deal with the same accordingly."

9. In the instant case, there is no dispute that the complaint filed by

the respondent-complainant was dismissed by the learned Magistrate and the

said order was challenged by the respondent before the learned revisional

Court. There is nothing on record to suggest that the revisional Court, while

setting aside the order of dismissal of the complaint, had ever issued any

notice to the petitioner, thereby giving him any opportunity of hearing. The

petitioner, being accused in the aforesaid complaint, had a right to be heard by

the revisional Court before setting aside the order passed by the trial Court. It

has certainly caused prejudice to the petitioner, who is an accused in the

aforesaid complaint.

10. The Hon'ble Supreme Court in the case of Manharibhai

Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Patel, 2012(4) RCR

(Criminal) 689, has authoritatively held that in a revision petition preferred by

the complainant against an order of dismissal of complaint under Section 203

of the Code, the persons arraigned as accused or suspected in the complaint

are entitled to a hearing before the revisional court in view of the mandate of

Section 401(2) of the Code. It was clarified that even though such proceedings

are at a pre-summoning stage, the reversal of an order of dismissal results in

revival of the complaint and thereby causes prejudice to the accused and,

hence, an opportunity of hearing is mandatory. It was further held that any

order passed by the revisional Court without affording such opportunity is

unsustainable in law and liable to be set aside. The relevant paragraph of the

said judgment reads as under :-

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" We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam, 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."

11. In view of the above discussion as well as the observations made

by the Hon'ble Supreme Court in Manharibhai's case (supra), the impugned

order dated 18.01.2022 passed by the learned Additional Sessions Judge,

Fatehgarh Sahib as well as the summoning order dated 09.02.2022, passed by

CRM-M-25385-2022 (O&M) -8-

the learned trial Court cannot be stated to be sustainable. Accordingly, the

present petition is partly allowed and both the aforementioned orders are

hereby set aside. The matter is remanded to the learned revisional Court to

decide the revision petition, filed by respondent No.2/complainant, afresh in

accordance with law.

17.04.2026 (MANISHA BATRA) Waseem Ansari JUDGE

Whether speaking/reasoned Yes/No