Krishan Gopal vs State of Raj.

Banwari Lal Sharma, J.—The present revision petition has been filed by the petitioner Krishan Gopal against the impugned order dated 18.06.2014 passed by the learned Additional Sessions Judge, No. 2, Bhilwara in Criminal Revision Petition No. 13/2014 (32/2014), by which the learned Additional Sessions Judge, No. 2, Bhilwara reversed the order dated 27.11.2013 passed by the learned Judicial Magistrate, First Class, Mandal (Bhilwara) in Criminal Case No. 164/2013 by which the learned Judicial Magistrate rejected the application of the complainant under Section 190(1)(b) Cr.P.C. and took cognizance for the offences under Sections 420, 406, 467, 468 and 471 IPC against accused Jagdish Das.

The brief facts of the case are that the complainant - respondent No. 2 filed a complaint before the court of learned Judicial Magistrate, First Class, Mandal against the petitioner, Jagdish Das, Santosh and Rajendra Kumar for the offences punishable under Sections 420, 467, 468, 406 and 120B IPC to the effect that accused Jagdish Das, Bhagwati Das and Smt. Chandi, keeping the complainant in dark, sold their share of land and received consideration after execution of sale-deed and handed over the physical possession of the land in dispute and submitted the sale-deed for registration on 21.08.2009 before the Sub-Registrar, Mandal but the same could not be registered due to paucity of time. Thereafter, Jagdish Das sold part of some land to Smt. Kailash and got the sale-deed registered in presence of witness Krishna Gopal (petitioner) on 27.06.2011. Therefore, it was prayed that legal steps may be taken against the accused.

On the said complaint, FIR No. 5/2013 was registered at P.S. Bagore, District Bhilwara and after investigation, charge-sheet was filed against Bhagwati Das and Smt. Chandi for the offences under Sections 406, 467 and 468 IPC before the learned Magistrate. After filing of charge-sheet, complainant preferred an application under Section 190(1)(b) Cr.P.C. before the learned Judicial Magistrate, Mandal for taking cognizance against Jagdish Das, Santosh Devi and Rajendra Kumar. After hearing, the same was rejected by the learned Magistrate vide order dated 05.06.2013, against which the complainant preferred a revision petition. The learned revisional court, i.e., the learned Additional Sessions Judge, No. 2, Bhilwara allowed the revision petition and remanded the matter back for passing the order after hearing the complainant. The learned Magistrate, after hearing the complainant, vide order dated 27.11.2013 dismissed the application, against which, the respondent-complainant preferred a revision petition before the learned revisional court, i.e. the learned Additional Sessions Judge, No. 2, Bhilwara, which came to be decided vide order dated 18.06.2014, whereby the learned revisional court partly allowed the revision petition and quashed the order dated 27.11.2013 to the extent of the petitioner. Being aggrieved from the order impugned dated 18.06.2014, this revision petition has been preferred.

The learned counsel for the petitioner submits that the revision petition was filed without impleading the petitioner as party, who was the necessary party and without impleading him as party respondent, the revision petition should not have been allowed.

The learned Public Prosecutor and the learned counsel for the respondent-complainant supported the impugned order.

I have considered the rival submissions and perused the impugned order.

It is not disputed that the petitioner was not a party respondent before the learned Additional Sessions Judge. The learned Additional Sessions Judge, after hearing the parties, has set aside the order passed by the learned Judicial Magistrate.

A joint reading of Section 397 and 401(2) Cr.P.C., makes it clear that if the revisional court, while exercising his revisional jurisdiction, is going to pass an order to the prejudice of a person, it is necessary that, that person should be given opportunity of hearing. In this case, no such opportunity was given to the present petitioner. Therefore, the order is not sustainable. The learned Additional Sessions Judge should have given opportunity of hearing to the petitioner. For that, it was obligatory on the part of the respondent as well as on the part of the court to make them party. This conclusion finds support from the judgment of Coordinate Bench of this court in Sushil Kumar v. State of Rajasthan and Anr. [2010 (1) Cr.L.R. (Raj.) 446].

On the basis of the aforesaid discussion, the impugned order passed by the learned Additional Sessions Judge, No. 2, Bhilwara is not sustainable and is hereby set aside and the matter is remanded back for afresh hearing after impleading the petitioner as party respondent. The parties are directed to appear before the revisional court on 28.04.2015 and they will be free to agitate their contentions before the learned revisional court. The learned revisional court, without being influenced by any observation made in this order, after affording opportunity of hearing to the parties, will decide the revision petition afresh in accordance with law.

The revision petition stands disposed of accordingly.