Mukesh Devi vs State of Haryana and Another

Sabina, J.—Petitioner has filed this petition u/s 482 of the Code of Criminal Procedure, 1973 seeking quashing of Criminal complaint No. RBT1166 dated 9.11.2006 (Annexure P3) and orders dated 15.7.2011 and 26.8.2011 (Annexures P5 and P6) along with all subsequent proceedings arising therefrom. Learned counsel for the petitioner has submitted that vide order dated 26.3.2011, petitioner was not summoned to face the trial. Aggrieved against the said order, complainant preferred the revision petition. The Court of revision, without issuing notice to the petitioner, set aside the order passed by the trial Court. In view of the order passed by the Court of revision, the trial Court ordered the summoning of the petitioner vide impugned order dated 26.8.2011. Learned counsel for the petitioner has further submitted that the order passed by the Court of revision was liable to be set aside. In support of his arguments, learned counsel has placed reliance on Mohit alias Sonu and Another Vs. State of U.P. and Another, wherein it has been held as under:-

The second revision 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.

Indisputably, a valuable right accrued to the appellants by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then it was incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of Cr.P.C. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court u/s 482 of Cr.P.C.

Learned counsel has also placed reliance on Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others, , wherein it was held as under:-

We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint u/s 203 of the Code at the stage u/s 200 or after following the process contemplated u/s 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate u/s 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.

Learned counsel for the respondents, on the other hand, has opposed the petition.

In the present case, admittedly, the Court of revision while setting aside the order passed by the trial Court dated 26.3.2011 qua the petitioner had not issued any notice to the petitioner. Since the petitioner had not been summoned by the trial Court, a valuable right had accrued to him. Hence, at the time of setting aside of the order of the trial Court whereby petitioner was not summoned to face the trial, the Court of revision should have issued notice to the petitioner as non-issuance of notice to the petitioner by the Court of revision has caused serious prejudice to him. Accordingly, this petition is allowed. Impugned order dated 15.7.2011 (Annexure P5) passed by the Court of revision is set aside. The Court of revision is directed to pass a fresh order in accordance with law after affording an opportunity of hearing to the petitioner. In consequence thereto, the impugned order passed by the trial Court dated 26.8.2011 (Annexure P6) is deemed to have been set aside.