Bhupendra Singh vs State of U.P. and Another

Vishnu Chandra Gupta, J.—Heard learned counsel for the petitioner and the learned AGA. Learned counsel for the respondent no. 2 is not present despite filing power on his behalf, whereas he has filed counter affidavit, which is on record.

In this petition u/s 482 Cr. P.C. the question raised for consideration is whether the court of revision may set aside the order passed by the learned Magistrate rejecting the petition u/s 156(3) of Code of Criminal Procedure (for short Cr. P.C.) without giving opportunity of being heard to the proposed accused and the FIR sought to be lodged in pursuance of section 156(3) Cr. P.C.

While deciding this petition the entire facts need not be discussed in view of the limited controversy involved in this case. The relevant facts necessary to decide this petition are as follows:

Respondent No. 2 Ajit Singh moved the application u/s 156(3) Cr. P.C. against the petitioner for taking electricity connection on the basis of false affidavit and requested that this matter be investigated after lodging FIR.

The copy of petition u/s 156(3) Cr. P.C. has been filed as Annexure No. 2 to this petition. The petition u/s 156(3) Cr. P.C. filed by Ajit Singh (respondent No. 2) has been rejected by the Chief Judicial Magistrate, Bahraich vide order dated 28.7.2010 with the finding that no cognizable offence is made out against the petitioner Bhupendra Singh, copy of which has been annexed as Annexure No. 3 to this petition.

Being aggrieved by the said order respondent No. 2 preferred criminal revisions bearing no. 400 of 2010 before Session Judge, Bahraich, who allowed the same vide order dated 24.12.2010 and remanded the matter to the Magistrate concerned for a fresh decision in pursuance of the direction issued by the Sessions Judge, copy of which has been annexed as annexure No. 1 to this petition. Copy of the memo of the revision has also been annexed as Annexure No. 4 to this petition, which shows that in revision only State of U.P. was arrayed as opposite party and the proposed accused (present petitioner in this petition) was not arrayed as opposite party therein. It shows that without issuing notice to the petitioner and without giving opportunity of being heard to him the revision was allowed. On this ground, the order of revisional court has been challenged by the present petitioner through this petition.

Controversy in question is not res integra and is squarely covered by the judgment of Apex court reported in (2009) 1 SCC (Cri) 801 : AIR 2008 SC (Supp) 706. Sakiri Vasu Vs. State of U.P. and Others, . Sakiri Vasu v. State of U.P., the Hon''ble Supreme Court held that revisional court has violated the mandate of section 401(2) Cr. P.C. which provides that no order under this section shall be passed to the prejudice of accused or other person unless he has been given an opportunity of being heard either personally or by pleader in his defence.

Respondent No. 2 has filed counter affidavit. In para 23 of counter affidavit it has been averred that petitioner was neither summoned nor any adverse finding has been given against him, as such, he is not entitled to file present petition as he is not an aggrieved person. It has been further averred that right accrues only when notices/summons are issued to the petitioner, then he can approach this Court otherwise filing of the present petition at this stage is premature, as such, the present petition is liable to be dismissed.

This controversy was set at rest in Raghu Raj Singh Rousa''s case (supra). The relevant paras 22 and 23 of this case are reproduced hereinbelow:-

Here, however, the leaned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction u/s 156(3) of the Code. He arrived at a conclusion that the dispute is a private dispute in relation to an immovable property and, thus, police investigation is not necessary. It was only with that intent in view, he directed examination of the complainant and his witnesses so as to initiate and complete the procedure laid down under Chapter XV of the Code.

We therefore, are of the opinion that the impugned judgment cannot be sustained and is set aside accordingly. The High Court shall implead the appellant as a party in the criminal revision application, hear the matter afresh and pass an appropriate order.

The Apex Court held that even at pre-cognizance stage when learned Magistrate declined to take any action u/s 156(3) Cr. P.C. and proceeded to treat the petition as complaint case and directed examination of the complainant and his witness, it will amount to closing of police investigation and if set aside in revision and the Magistrate was directed to reconsider the matter in light of section 156(3) Cr. P.C. without giving an opportunity of being heard to the person against whom FIR was intended to be lodged, it will amount to violation of mandatory provisions contained in sub-section 2 of section 401 Cr. P.C. The Apex Court further held that it makes no difference whether any notices/summons were issued to the proposed accused/suspect because the order passed not to investigate the matter is an order in favour of proposed accused and the same cannot be set aside without giving an opportunity of being heard to the proposed accused.

Similar view has been propounded by this Court in the judgment reported in Karan Singh and Others Vs. State of U.P. and Another, .

In the recent judgment reported in Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others, . Maniharibhai Muljibhai Kakadia and another v. Shaileshbhai Mohanbhai Patel and others the Apex Court held that even in the case of dismissal of complaint proposed accused/suspect held are necessary parties to whom an opportunity of hearing should be accorded as especially provided in section 401(2) Cr. P.C. notwithstanding that order impugned in revision was passed without participation of respondent No. 2 (in the present petition).

In view of the aforesaid legal proposition the petition is liable to be allowed.

Accordingly this petition is allowed. The impugned order dated 24.12.2010 passed by the Sessions Judge, Bahraich in Criminal Revision No. 400 of 2010 is set aside. The matter is remanded back to the re visional court with direction that court shall direct the revisionist-respondent No. 2 to implead the proposed accused/suspect (petitioner) against whom the petition u/s 156(3) Cr. P.C. was moved and decide the matter afresh on merit after providing an opportunity of being heard to him.