Devinder Kumar Gulati vs State of Haryana and Another

Rekha Mittal, J.—The present petition u/s 482 of the Code of Criminal Procedure (in short, ''Cr.P.C.'') lays challenge to the order dated 02.03.2013 (Annexure P11), passed by the Additional Sessions Judge, Faridabad, whereby the revision petition preferred by the petitioner assailing the order dated 10.12.2012 (Annexure P9), passed by the trial Court summoning the petitioner u/s 319 Cr.P.C. was dismissed on the ground of maintainability.

Om Parkash Maglani (respondent No. 2 herein) got registered FIR No. 903 dated 11.11.2002 against Rajinder Kaur, on the allegations that Smt. Rajinder Kaur forged ''no objection certificate'' purported to be issued by Smt. Ram Piari, mother of the complainant in order to become an absolute owner of house No. 98, Sector 17, Faridabad. On completion of investigation, report u/s 173 Cr.P.C. was submitted in the Court against Smt. Rajinder Kaur. Charge under Sections 467, 468 and 471 of the Indian Penal Code (in short, ''IPC'') was framed against Rajinder Kaur in regard to forging of said ''no objection certificate''. During pendency of trial, Om Parkash Maglani, complainant was examined as a witness. Subsequent thereto, an application was filed by the complainant to summon Devinder Kumar Gulati (petitioner herein) and Smt. Renu Batra as additional accused u/s 319 Cr.P.C. The application was disposed of by the trial Court on 10.12.2012 (Annexure P9), summoning the petitioner and Smt. Renu Batra to face the proceedings.

The petitioner challenged order dated 10.12.2012 before the Court of Sessions, which was eventually decided by the Additional Sessions Judge, Faridabad vide order dated 02.03.2013 (Annexure P11) and the revision petition preferred by the petitioner was dismissed being not maintainable.

Feeling aggrieved by the orders passed by the Courts below, the present petition has been preferred before this Court.

It is argued with vehemence that in the first information report lodged by the complainant, there is not even a whisper that the petitioner had any role to play in regard to preparation of ''no objection certificate'' issued by Smt. Ram Piari, which is alleged to be a forged one. It is further argued that Smt. Rajinder Kaur has passed away and the petitioner is sought to be indicted in the crime as Rajinder Kaur (sister of the petitioner) was married to Rajinder Kumar Maglani, the elder brother of the complainant. According to counsel, order for summoning a person as an additional accused u/s 319 Cr.P.C. is amenable to challenge by way of revision but the revisional Court seriously erred in dismissing the petition on the ground of non-maintainability.

Respondent No. 2, present in person, to refute the contention of counsel for the petitioner, has submitted that the petitioner entered into a conspiracy with his sister to forge the documents in order to deprive the respondent and others Class-I heirs of Smt. Ram Piari of natural succession in regard to half share in the house in dispute, which was earlier owned by Rajinder Kumar Maglani, husband of Rajinder Kaur. It is further submitted that he has placed on record number of documents and one of the documents dated 23.02.1995, the day the house was transferred in the name of Smt. Rajinder Kaur in the records of Haryana Urban Development Authority, also bears attestation of the present petitioner.

I have heard counsel for the parties and perused the records.

Before adverting to the arguments on merits of the controversy, it is appropriate to address the issue with regard to maintainability of the revision petition against the order passed by the trial Court u/s 319 Cr.P.C. Hon''ble the Supreme Court in Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, and Om Kr. Dhankar Vs. State of Haryana and Another, has held that the revision petition against an order summoning a person to face proceedings in a criminal complaint is maintainable by holding that order of summoning cannot be said to be an interlocutory order. The order passed by the trial Court summoning a person to face proceedings in exercise of power u/s 319 Cr.P.C. is akin to the summoning order passed in a private complaint because the order of summoning of an accused either in a private complaint or u/s 319 Cr.P.C. will have the same consequences. The revisional Court committed a serious error in holding that order dated 10.12.2012 is an interlocutory order, not amenable to challenge in revisional jurisdiction. In view of the above, the order passed by the revisional Court dated 02.03.2013 (Annexure P11) cannot be allowed to sustain and is accordingly set aside.

As the order summoning an accused u/s 319 Cr.P.C. by a Judicial magistrate can be challenged in revision u/s 397 or 401 Cr.P.C., the petition u/s 482 Cr.P.C. to give challenge to such an order, should not be entertained in view of the latest judgment of Hon''ble the Supreme Court of India in Mohit alias Sonu and Another Vs. State of U.P. and Another, , wherein Hon''ble the Supreme Court in para 28 has held quoted hereunder:-

The second question that needs consideration is as to whether the High Court exercising its revisional jurisdiction or inherent jurisdiction u/s 482 Cr.P.C., while considering the legality and propriety of the order passed u/s 319 of Cr.P.C. Code is required to give notice and opportunity of hearing to the person in whose favour some right accrued by virtue of order passed by the trial court. In other words, whether it would be justified for the High Court to entertain a petition u/s 482 of Cr.P.C. and pass order to the prejudice of the accused or other person (the appellants herein) without giving notice and opportunity of hearing to them.

Without going into the merits of the controversy, the petition is partly allowed, impugned order dated 02.03.2013 (Annexure P11), passed by the revisional Court is set aside and the matter is remitted to the Additional Sessions Judge, Faridabad for decision of the petition afresh, in accordance with law.