Dhirendra Singh Pawar and another vs Dharmendra Singh Sikarwar and another

Hon''ble Shri Justice Sujoy Paul

By invoking revisional jurisdiction of this Court under Sections, 397, 401 of the Code of Criminal Procedure, the petitioners have called in question legality, validity and propriety of order dated 20.7.2011 passed in Criminal Revision No.68/2011 by the court below.

The relevant facts are as under:-

The respondent No.1 filed a private complaint alleging the offence under Sections 307, 394 of Indian Penal Code against the petitioners. The trial Court examined the complainant and witnesses u/s 200 of Cr.P.C. and thereafter rejected the complaint. Against this, Criminal Revision No.68/2011 was filed before the court below. The singular point raised by the petitioners is that the court below passed the order dated 20.7.2011 without noticing them. In other words, it is stated that the court below by order dated 20.7.2011 quashed and set aside the order of the trial court and remitted the matter back to re-examine the police report and statements of witnesses and then proceed in accordance with law. The present petitioners by invoking the jurisdiction of this Court u/s 482 of Cr.P.C. have called in question the legality, validity and propriety of the order dated 20.7.2011.

Shri S.S.Rajput, learned counsel for the petitioners placed heavy reliance on (2006) 1 SCC (Cri) 345 (P.Sundarrajan v. R. Vidhya Sekar) and Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) L and Another, . He also placed reliance on a recent judgment of this Court reported in 2011 Cr.L.R. (M.P.) 681 (Sushiladevi (Smt.) W/o Kailashchandra Betala vs. Smt. Sushiladevi w/o Mishrilal Betala & others). On the strength of these judgments, Shri Rajput submits that the Revisional Court should not have passed the order without hearing the accused.

Per Contra, Shri Rajnish Sharma, learned counsel for respondent No.1 placed reliance on two unreported judgments of Delhi and Gujarat High Courts in Prakash Devi & others vs. State of Delhi and another, and, Prithi Paul Singh Sethi, Director of Ebyss 2 Fashion Lt. vs. Twist Spin Industry Through-Pramod Ramniklal Trivedi, respectively.

I have heard learned counsel for the parties and perused the record.

In P.Sundarrajan''s case (supra) the Apex Court held as under in para 5:-

In our opinion, this order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant herein to defend his case that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order.

The ratio of P.Sundarrajan''s case was followed in the case of Raghu Raj Singh Rousha (supra).

It is true that Delhi High Court in Prakash Devi''s case (supra) has taken a different view and held that a reading of relevant provisions of Cr.P.C. shows that against the order of dismissal of a complaint u/s 203 of Cr.P.C., no notice need be given to the accused. No restraints and conditions which the Legislature itself did not think proper or necessary to impose can be brought in by the backdoor on the concept of natural justice. Delhi High Court judgment is followed by Gujarat High Court in Prithi Paul Singh Sethi''s case (supra). However, a bare perusal of para 15 of Gujarat judgment shows that the judicial opinion on this issue is not unanimous. Different High Courts have taken different view and Gujarat High Court has decided to follow the ratio in Prakash Devi''s case (supra).

In the considered opinion of this Court, after considering the judgment of Supreme Court in P.Sundarrajan''s case (supra) and Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , this Court (Indore Bench) in Shushiladevi (supra) held that once Magistrate forms his mind and dismissed the complaint, the Revisional Court cannot pass any adverse order against the respondent/accused without hearing him, I am bound by the order passed by this Court (Indore Bench).

In this view of the matter, petition deserves to be and is hereby allowed. The Revisional Court''s order is quashed and set aside. The Revisional Court is directed to hear the petitioners and then pass appropriate orders in accordance with law. It be noted that this Court has not expressed any opinion on the merits of the case. The parties are directed to appear before the Revisional Court on 28th February, 2012.