Akhtar and Others vs State of U.P. and Another

Satyendra Singh Chauhan, J.—Heard learned Counsel for the Petitioners and the learned AGA as well as learned Counsel for the opposite party No. 2.

The present petition has been filed challenging the order dated 24.9.2009 passed by the Sessions Judge, Bahraich.

Submission, in short, on behalf of the Petitioners is that an application u/s 156(3) Code of Criminal Procedure was moved by the opposite party No. 2 against the Petitioners. The investigation followed in pursuance to the FIR lodged and the police submitted a final report. After submission of the final report, a protest petition was filed by the opposite party No. 2 and the said protest petition was rejected. Thereafter, opposite party No. 2 preferred a revision before the Sessions Judge and the Sessions Judge while hearing the revision set aside the order passed by the Magistrate dated 25.4.2009 and directed the Magistrate to hear the matter again.

Submission of learned Counsel for the Petitioners is that the Petitioners are the prospective accused and they ought to have been heard by the revisional court before passing any order against them and they should have been arrayed as party in the case, but that was not done and the revision was decided ex-parte. In support of his contention he has relied upon the decision of the apex Court in the case of Raghu Raj Singh Rousha v. Shivam Sundaram Promoters (P) Ltd. and Anr. 2009 (1) JIC 491 (SC).

Counsel for the opposite party No. 2, on the other hand, has submitted that there is no requirement of the Petitioners to be heard and they have ample opportunity of pursuing their case before the Magistrate and also defend themselves on the basis of the evidence available.

Learned AGA has also supported the argument of counsel for the opposite party No. 2, but has not disputed the legal position as laid down by the apex Court in the aforesaid case.

Having heard learned Counsel for the parties, I find that the Petitioners were not arrayed as party before the revisional court and neither they were heard and no opportunity was given to them by the revisional court before passing the order. While considering this situation in the case of Raghu Raj Singh Rousha (supra) the apex Court proceeded to held that in such circumstances the order passed by the High Court would be illegal and it suffers from manifest illegality. The relevant portion of the judgment is quoted as under:

One of the questions which 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.

In view of the above proposition of law and looking to the fact that the Petitioners were not heard and neither any opportunity was given to them, the order passed by the Sessions Judge is bad in law and is liable to be set aside.

The petition is accordingly allowed. The order dated 24.9.2009 passed by the Sessions Judge, Bahraich is set aside and the matter is remitted to the revisional court with a direction to hear the matter afresh and pass afresh order in accordance with law after giving opportunity of hearing to the Petitioners. It is expected that the matter would be decided by the revisional court within a period of six months.