1 - Hukum Narayan S/o Panna Lal Patel Aged About 50 Years R/o Village v. 1 - Harishankar Patel S/o Late Krishnalal Patel Aged About 57 Years R/o Village
Case Details
1 2025:CGHC:7374 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 517 of 2025 1 - Hukum Narayan S/o Panna Lal Patel Aged About 50 Years R/o Village Bhedikona, Tehsil Dabhara, District- Sakti ( C.G. )., Jharkhand ... Petitioner(s) versus 1 - Harishankar Patel S/o Late Krishnalal Patel Aged About 57 Years R/o Village Bhedikona, Tehsil Dabhara, District- Sakti ( C.G. ). At Present B.D. Complex, Near Railway Crossing Tifra, Behind Vishal Traders Iron Shop, Bilaspur ( C.G. ). 2 - Nitesh Thakur The Than Patwari, P.H. No. 27-28, R/o Village Bhedikona And Sakrali, Through- Tehsildar Dabhara, District- Sakti ( C.G. ) At Present Tehsil Office Pamgarh, District- Janjgir- Champa ( C.G. ). 3 - B.K. Dahariya, The Than Tehsildar Dabhara, District- Sakti ( C.G. ). At Present Tehsildar Dharamjaigarh, District- Raigarh ( C.G. ). 4 - State Of Chhattisgarh Through- District- Magistrate, District- Sakti ( C.G. ). ... Respondent(s) For Petitioner(s)
Legal Reasoning
: Mr. T.K. Jha, Advocate For Respondent No. 1 For Respondent No. 4 : : Mr. Ravindra Sharma, Advocate Ms. Laxmeen Kashyap, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Order on Board 10/02/2025 1. The present petition is filed by the petitioner under Section 528 of BNSS, 2023 against the order dated 15.01.2025 passed by the Learned Second Additional Sessions Judge, Sakti, District-Janjgir- 2 Champa (C.G.) in Criminal Revision No. 04/2024, though the learned court has allowed the revision and remanded back the case and directed the petitioner and respondent to appear on 12.02.2025 before the learned Trial Court. 2. Brief facts of the case is that the respondent No.1/complainant Harishankar Patel moved an application under section 156 (3) of Cr.P.C. before the learned JMFC Dabhara, District Sakti (C.G.) against the petitioner and respondent No. 2 and 3. The complaint is that some ancestral property belonging in the name and possession of the complainant situated at Village Bhedikona, P.H. No. 27. Tehsil Dabhara, District Sakti (C.G.) and petitioner also knew this fact. In the year 2019 complainant gave consent to the father of petitioner namely Pannalal for selling of paddy in respect of those properties situated in the Village Putidih in which they are co sharer. The complainant neither appointed as representative nor given consent in favor of the petitioner who is the son of Pannalal for selling of paddy. It is also alleged that the petitioner with the help of respondent No. 2 and 3, got the land belonging to complainant/ respondent No. 1 was registered in his own name for selling of paddy. The complainant moved complaint before the police Dabhara, SP Janjgir- Champa and Collector Janjgir- Champa and on the basis of complainant the Collector directed the Sub Registrar (Sahkari Society) to enquire the matter and on 09.06.2021 the Sub-Registrar filed his report. On the basis of report dated 09.06.2021 complainant moved complainant before the Police Station Dabhara and Superintendent of Police Janjgir Champa but no action was taken. The complainant filed WPCR No. 336/2021 before this Honble High Court and on 12.07.2023 this Court has dismissed the same with liberty to file appropriate application before the appropriate forum. Thereafter complainant filed an application under section 156 (3) of Cr.P.C. before the learned JMFC Dabhara. After hearing the complainant and peruse the documents learned JMFC Dabhara dismissed the application 3 filed by the complainant on 22.11.2023. Being aggrieved by the order dated 22.11.2023 complainant filed Criminal Revision before the 2nd Additional Session Judge Sakti. After hearing the parties on 15.01.2025 (Annexure P/1) the learned 2nd Additional Sessions Judge Sakti allowed the revision and set aside the order passed by the JMFC and remanded back to the petition and also direct the parties to appear before the JMFC Dabhara on 12.02.2025. 3. Learned counsel for the petitioner would submit that the nature of dispute is of Civil Nature therefore filing of application/complaint under Section 156(3) of Cr.P.C. is abuse of power. The complainant Harishankar Patel gave consent to petitioner’s father Panna lal Patel and Panna Lal Patel gave consent to the petitioner. He placed his reliance in the law laid down by the Supreme Court in the matter of Usha Chakraborty Vs. State of West Bengal (2023) SCC online SC 90 as- “That the Court quashed the criminal proceedings after noting that the application filed under Section 156(3) of Cr.P.C. did not satisfy the essential ingredients to attract the alleged offences and that they were vague. Also, the existence of a pending civil dispute on the causative incident was not disclosed in the application.” and would therefore pray that the order of the Sessions Judge may kindly be interfered and this petition may be allowed. 4. Per contra, learned counsel for the respondent no. 1 would submit that till date no adverse order has been passed against the petitioner. He would next contend that the revisional court has remitted the matter back only to decide the application as per the provisions prescribed under the law, therefore, no interference is called for by this Court in the orders passed by the revisional Court. 4 5. I have heard learned counsel for the parties and perused the documents. 6. Perusal of the record would show that learned JMFC Dabhra has rejected the application filed by the complainant under Section 156(3) of Cr.P.C. Thereafter the complainant has filed the Criminal Revision bearing no. 04/2024 before the Second Additional Sessions Judge, Sakti, District- Janjgir-Champa (C.G.) wherein the Sessions Judge has partly allowed the Criminal Revision and remitted the matter back to the JMFC, Dhabra. 7. The Supreme Court in the matter of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbahi Patel and Ors. 2012 AIR SCW 5314 has held thus in para 48 & 54 which are reproduced hereinbelow:- 48. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision 5 application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. Three expressions, "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width. Black's Law Dictionary [Eighth Edition) explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [Tenth Edition, Revised) defines "prejudice" as under: "1. Preconceived opinion that is not based on reason or actual experience. > unjust behaviour formed on such a basis. 2. harm or injury that results or may result from some action or judgment. v.1 give rise to prejudice in (someone); make biased. 2. cause harm to (a state of affairs)." "54. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person 6 to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed offencehave been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203 although it is at preliminary stage nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get right of hearing before revisional court although such order was passed without their participation. The right given to "accused" or "the other person" under Section 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage". 8. It is pertinent to mention here that the Magistrate at this juncture 7 has not taken any cognizance against the petitioners and they are only proposed accused and there is no provision in the Cr.P.C. that before taking cognizance, to hear the proposed accused. But after enforcement of the new act i.e. Bharatiya Nagarik Suraksha Sanhita, 2023 in the year 2023 wherein Chapter XVI deals with examination of complainant and Section 223 (1) of the BNSS, 2023 provides as under:- 223. (1) A Magistrate having jurisdiction while taking cognizance of an offence oath the complainant and present, if any, and the substance of such examination shall be reduced to prung and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: xxx xxx xxx xxx xxx xxx xxx xxx xxx 9. Therefore, reading of the proviso clause to the above provisions, it would show that no cognizance of an offence shall be taken by 8 the Magistrate without giving the accused an opportunity of being heard. Therefore, the Magistrate shall proceed further and pass the order keeping in the mind the provisions of Section 223 (1) of the BNSS, 2023. 10. Accordingly, the instant petition stands disposed of with the aforesaid direction and observation. Sd/- (Arvind Kumar Verma) JUDGE Madhurima