R.K. Mishra vs State of U.P. and another

S.S. Chauhan, J.—Heard learned Counsel for the revisionists, learned A.GA as well as Sri Anil K. Tripathi, learned Counsel for the opposite party No. 2.

The revisionists who are prospective accused, have come up before this Court challenging the order dated 10.4.2009, whereby the. order dated 7.9.2007 passed by the Magistrate rejecting the application moved under section 156(3), Cr. P.C. has been set aside.

The argument of the learned Counsel for the revisionists in substance is that in view of the law propounded by the apex Court in the case of Raghu Raj Singh Rousha v. Shivam Sundamm Promoters Private Limited and another, 2009 (65) ACC 629 (SC) = 2009 (77) AIC 210 (SC) the prospective accused are required to be heard and any order which is affecting their interest would be illegal as they have not been given any opportunity to explain their conduct and also put up a proper defence in regard to the allegations made against them.

In regard to an incident which took place in the jail premises of the Sultanpur, one of the complainant whose son had died on account of the action of the prospective accused, approached the Court of Magistrate after moving an application under section 156 (3), Cr. P.C. and the Magistrate after hearing the parties came to the conclusion that the F.I.R. could not be lodged and rejected the application by means of order dated 7.9.2007. Against this order two revisions were preferred and the revision Court proceeded to decide the revisions and set aside the order of the Magistrate dated 7.9.2007 and remitted the matter to the Magistrate with the direction that in the light of the observations made in the judgment the application moved under section 156(3) Cr. P.C. may be decided.

The Revisional Court decided the revisions on 10.4.2009 and on the said date the law as propounded by the Apex Court in the case of Raghu Raj Singh Rousha (supra) (decided on 17.12.2008) was prevailing, but the Revisional Court not take notice of the law propounded by the Apex Court and proceeded to decide the matter without hearing the prospective accused.

Learned A.G.A. was directed to seek instructions and the Counsel for the complainant is also not able to satisfy the Court as, to whether any hearing was afforded to the revisionists before allowing the revision.

In view of the law propounded by the Apex Court in the case of Raghu Raj Singh Rousha, the orders passed by the Revisional Court were not justified and legal. Since no opportunity was given to the prospective accused before allowing the revision, therefore, the orders passed by the Revisional Court cannot be sustained in law and are liable to be set aside.

The revisions are accordingly allowed. The orders dated 10.4.2000 passed in Criminal Revisions No. 482 of 2007 and 508 of 2007 respectively are hereby set aside and the matter is remitted to the revisional Court. The Revisional Court will restore the revisions to their original number and decide the same after giving opportunity of hearing to the prospective accused and the other affected parties or through their agent. The parties shall appear before the Revisional Court on 27.4.2009.

Revision Allowed.