Md. Iqbal Hussain v. The State of Jharkhand

: Mr. R.S. Mazumdar, Sr. Advocate : Mrs. Jasvindar Mazumdar, Advocate : Mr. Devesh Krishna, SC Mines-III : Mr. Faisal Allam, AC to SC Mines-III ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with a prayer to quash and set aside the order dated 01.03.2025 in Criminal Revision No.36 of 2025 passed by learned Sessions Judge, Dhanbad whereby and where under the learned Sessions Judge, Dhanbad has allowed the criminal revision behind the back of the petitioner who was the sole opposite party of the said revision; without issuing any notice.

3. Learned senior counsel for the petitioner relies upon the judgment of Hon’ble Supreme Court of India in the case of Bal Manohar Jalan vs. Sunil Paswan & Another reported in (2014) 9 SCC 640 paragraph-9 of which reads as under:- “9. In the present case challenge is laid to the order dated 4- 3-2009 at the instance of the complainant in the revision petition before the High Court and by virtue of Section 401(2) of the Code, the accused mentioned in the first information report get the right of 1 Cr. M.P. No.936 of 2025 ( 2025:JHHC:13423 ) hearing before the Revisional Court although the impugned order therein was passed without their participation. The appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code and on this ground, the impugned order of the High Court is liable to be set aside and the matter has to be remitted.” and submits that it is the solemn duty of the revisional court to grant opportunity of hearing to the opposite party-accused before deciding the criminal revision when a valuable right has accrued particular to the petitioner; with the learned Magistrate passing the order rejecting the prayer of the prosecution to adduce evidence, to summon the witnesses sought by the prosecution to be examined as witness in the case. It is lastly submitted that the prayer, as prayed for in the instant Cr.M.P, be allowed.

4. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that the learned Sessions Judge, Dhanbad has not committed any illegality by not issuing any notice to the petitioner before passing impugned order. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

5. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of A.N. Santhanam vs. K. Elangovan reported in (2012) 12 SCC 321 paragraph-5 of which reads as under:- Section 401 of the Code of Criminal Procedure, 1973 which “5. deals with the High Court's power of revision reads as under: “401.High Court's powers of revision.—(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its 2 Cr. M.P. No.936 of 2025 ( 2025:JHHC:13423 ) discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.” A plain reading of sub-section (2) of the said provision makes it abundantly clear that the High Court in exercise of its revisional power cannot pass any order which may cause prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence”. (Emphasis supplied) where in the Hon’ble Supreme Court of India has in no uncertain manner held that the High Court in exercise of its revisional power cannot pass any order which may cause prejudice to the accused person or any other person unless such person has an opportunity of being heard either personally or by pleader in his own defence. It is a settled principle of law that, the same principle has been applicable to the Sessions Judge; as the Sessions Judge exercises the same power as High Court under Section 401(1) of Cr.P.C. by virtue of Section 399 of the Cr.P.C., thus, a Sessions Judge also cannot exercise the revisional power to pass order; which caused prejudice to the accused or other persons unless he has an opportunity of being heard either personally or by pleader in his own defence. 3 Cr. M.P. No.936 of 2025 ( 2025:JHHC:13423 )

6. Now, coming to the facts of the case, the undisputed facts remains that the learned Sessions Judge, Dhanbad has neither issued any notice to the petitioner nor given any opportunity of being heard to the petitioner who was the opposite party of the said criminal revision. In view of settled principle of law and the facts of this case as indicated above, this Court has no hesitation in holding that the learned Sessions Judge, Dhanbad, being the revisional court has committed a gross illegality by passing an order which caused prejudice to the petitioner, who was the accused person of the case, without giving any opportunity to him of being heard and without issuing any notice in criminal revision, though, the petitioner was the sole opposite party, in the said criminal revision.

7. Accordingly, the order dated 01.03.2025 in Criminal Revision No.36 of 2025 passed by learned Sessions Judge, Dhanbad, is quashed and set aside.

8. The Criminal Revision No.36 of 2025 is remitted to the Sessions Judge, Dhanbad with the direction that the learned Sessions Judge, Dhanbad to pass a fresh order after giving opportunity of being heard to the petitioner, by issuing notice to him.

9. In the result, this Cr.M.P., stands allowed to the aforesaid extent. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 01st of May, 2025 AFR/ Abhiraj 4 Cr. M.P. No.936 of 2025