Shyam Sundar Kushwaha, son of late Chando Mahato, aged about 48 years, by faith-Hindu v. 1. The State of Jharkhand 2. Chief Manager, Punjab National Bank, Katras Road Branch
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2401 of 2023 Shyam Sundar Kushwaha, son of late Chando Mahato, aged about 48 years, by faith-Hindu, by occupation-Business, resident of Gate No.2, Behind CMRI, Bartand, P.O. & P.S.-Dhanbad, within the district of Dhanbad (Jharkhand) .... Petitioner Versus 1. The State of Jharkhand 2. Chief Manager, Punjab National Bank, Katras Road Branch, Dhanbad, P.O.-Dhanbad, P.S.-Bank More, Dist.-Dhanbad (Jharkhand) …. Opp. Parties P R E S E N T
Legal Reasoning
Dhanbad has found prima facie case for the offence punishable under Section 138 of N.I. Act and ordered for issuance of process against the petitioner. 3. The brief fact of the case is that alleging that the petitioner has committed the offence punishable under Section 138 of N.I. Act, the opposite party no.2 filed Complaint Case No. 1591 of 2020 in the court of Judicial Magistrate 1st Class, Dhanbad. As it appeared to the learned Judicial Magistrate 1st Class, Dhanbad that the complaint was filed beyond the prescribed period of limitation it dismissed the complaint. 4. Being aggrieved by the order dated 24.02.2023 passed in C.P. Case No. 1591 of 2020 the complainant-opposite party no.2 in this case filed Criminal Revision No. 41 of 2023 in the court of Sessions Judge, Dhanbad. The learned Sessions Judge, Dhanbad without giving any opportunity of being heard set aside the order dated 24.02.2023. 5. Learned counsel for the petitioner by relying upon the judgment of Hon’ble Supreme Court of India in the case of Manharibhai Muljibhai Kakadia & Anr. vs. Shaileshbhai Mohanbhai Patel & Ors. reported in (2012) 10 SCC 517, the relevant portion of paragraph no.48 of which reads as under:- Cr.M.P. No.2401 of 2023 2 48. xxxxx xxxxx xxxxx xxxxx Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the Revisional Court although such order was passed without their participation. xxxxx xxxxx xxxxx xxxxx “ submits that it is a settled principle of law that once a challenge is laid to an order of dismissal of a complaint at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401 (2) of Code of Criminal Procedure, the suspect get the right of hearing before the revisional court, although such order was passed without their participation. 6. It is next submitted by the learned counsel for the petitioner that this settled principle of law has been reiterated by the Hon’ble Supreme Court of India in the case of Santhakumari & Ors. vs. State of Tamil Nadu & Anr. reported in 2023 LiveLaw (SC) 465, paragraph no. 6 of which reads as under:- 6. Having considered the submissions, since it is not in dispute that the proposed accused were not served notice of the revision proceedings, the order passed by the High Court is in the teeth of the provisions of subsection (2) of Section 401 of the Code as interpreted by this Court in Manharbhai Muljibhai Kapadia (supra). 7. It is then submitted by the learned counsel for the petitioner that as the learned Sessions Judge, Dhanbad has passed the order dated 03.04.2023 without providing any opportunity of being heard to the petitioner, who was the opposite party no.2 in the said revision and without ever issuing any notice to him hence, the order dated 03.04.2023 passed in Criminal Revision No. 41 of 2023 is not sustainable in law; therefore, the same be quashed and set aside. It is Cr.M.P. No.2401 of 2023 3 8. 9. further submitted by the learned counsel for the petitioner that the consequential order dated 16.05.2023 which was passed subsequently by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No.1591 of 2020 be also quashed and set aside. Learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 do not dispute that in Criminal Revision No. 41 of 2023 notice was never issued to the opposite party no.2 of the criminal revision who is the petitioner before this Court. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that since it is a settled principle of law that once a dismissal order of a complaint is challenged at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401 (2) of Code of Criminal Procedure, the suspect gets the right of hearing before the revisional court. So this Court has no hesitation in holding that the learned Sessions Judge, Dhanbad has committed a grave illegality by passing an order for setting aside the order dated 24.02.2023 by which the complaint of the opposite party no.2-complainant was dismissed; behind the back of the petitioner, without giving any opportunity of being heard to him. Hence, the said order is not sustainable in law. 10. Accordingly, the order dated 03.04.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 41 of 2023 and the consequential order dated 16.05.2023 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 1591 of 2020 are quashed and set aside. Cr.M.P. No.2401 of 2023 4 11. The Criminal Revision No. 41 of 2023 is remanded to the court of Sessions Judge, Dhanbad to pass a fresh order in accordance with law after issuing notice and giving opportunity of being heard to the petitioner of this criminal miscellaneous petition who is the opposite party no.2 of the said Criminal Revision No. 41 of 2023. 12.
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2 : Mr. P.K. Mukhopadhyay, Advocate : Mr. Wazid Ali, Advocate : Mr. Shibam Chakraborty, Advocate : Mr. Abhay Kr. Tiwari, Addl. P.P. : Mr. Parth S.A. Swaroop Pati, Advocate : Mr. Akshay Kumar, Advocate : Ms. Malsi Pathak, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 03.04.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 41 of 2023 whereby and where under, the learned Sessions Judge, Dhanbad has set aside the order dated 24.02.2023 passed by the learned Judicial Magistrate 1st Cr.M.P. No.2401 of 2023 1 Class, Dhanbad by which the learned Judicial Magistrate 1st Class, Dhanbad dismissed the complaint registered vide C.P. Case No. 1591 of 2020 without giving any opportunity of being heard to the petitioner and remanded the matter back to the court concerned for passing a fresh order after affording opportunity to the complainant. Prayer has also been made to quash the consequential order dated 16.05.2023 by which the learned Judicial Magistrate 1st Class,
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 18th October, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2401 of 2023 5