Subhash Kumar v. The State of Jharkhand

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2 : Mr. Rajesh Kumar, Advocate : Mr. P.D. Agrawal, Spl. P.P. : Mrs. Jasvindar Mazumdar, Advocate : Mr. R.S. Mazumdar, Sr. Advocate ….. By the Court:-

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 05.06.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 34 of 2023 whereby and where under, the criminal revision filed by the opposite party nos.2 and 3 against the order dated 20.01.2023 passed by the learned Judicial Magistrate 1st Class, Dhanbad has been allowed and also for 2 Cr.M.P. No.2571 of 2023 quashing the order dated 20.07.2023 passed by the learned Judicial Magistrate 1st Class, Dhanbad in C.P. Case No. 6496 of 2022 whereby and where under, the learned Judicial Magistrate 1st Class, Dhanbad has found prima facie case for the offences punishable under Sections 341, 323, 506, 384 and 34 of Indian Penal Code acting upon the direction of the learned Sessions Judge, Dhanbad passed by it in order dated 05.06.2023 in Criminal Revision No. 34 of 2023.

3. It is submitted by the learned counsel for the petitioners that even though vide order dated 05.06.2023 in Criminal Revision No. 34 of 2023, it has been mentioned in paragraph no.1, that the learned counsel for the opposite party nos.2 and 3 was present before the revisional court but the same is an error of record. Learned counsel for the petitioners draws the attention of this Court to the entire order sheet of Criminal Revision No. 34 of 2023 kept at page no. 38- 44 of the brief and submits that notice was never issued to the petitioners who were the opposite party nos.2 and 3 of that criminal revision nor the petitioners engaged any lawyer or appeared through any lawyer in Criminal Revision No. 34 of 2023. It is next submitted by the learned counsel for the petitioners relying upon the judgment of this Court in the case of Meera Singh & Ors. vs. The State of Jharkhand & Anr. in W.P. (Cr.) No. 231 of 2023 wherein this Court relying upon the judgment of Hon’ble Supreme Court of India in the case of A.N. Santhanam Vs. K. Elangovan, reported in (2012) 12 SCC 321, para -5 of which reads as under:- “5. Section 401 of the Code of Criminal Procedure, 1973 which 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 3 Cr.M.P. No.2571 of 2023 its knowledge, the High Court may, in its 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 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.” reiterated the settled principle of law that when the High Court or for that matter the same principle being applicable to the Sessions Judge when the Sessions Judge exercises the same power as the High Court under Section 401(1) of the Cr.P.C. by virtue of Section 399 of the Cr.P.C., cannot exercise the revisional power to pass 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.

4. It is further submitted by the learned counsel for the petitioners by drawing attention of this Court to page no. 57 of the brief that as the 4 Cr.M.P. No.2571 of 2023 petitioners were never noticed in in Criminal Revision No. 34 of 2023, they failed to bring to the notice of the revisional court that by

05.06.2023 when the said order was passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 34 of 2023, the C.P. Case No. 6496 of 2022 was already dismissed vide order dated 31.03.2023 so upon the dismissal of the said C.P. Case No. 6496 of 2022, Criminal Revision No. 34 of 2023, which is filed challenging the order passed in C.P.Case No. 6496 of 2022; has become infructuous but the learned Sessions Judge, Dhanbad could take note of the said fact and remanded back the case which was already being dismissed for other reasons. It is then submitted by the learned counsel for the petitioners that basing upon the said illegal order passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 34 of 2023, learned Judicial Magistrate 1st Class, Dhanbad has further passed consequential order dated 20.07.2023 in C.P. Case No. 6496 of 2022 and therefore, the said order dated 20.07.2023 passed in C.P. Case No. 6496 of 2022 be quashed and set aside. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

5. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer for quashing the order dated 05.06.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 34 of 2023 as also the order dated 20.01.2023 passed by the learned Judicial Magistrate 1st Class, Dhanbad but it is fairly submitted by the learned counsel for the opposite party no.2 that the notice was never issued to the petitioners who were the opposite party nos.2 and 3 of Criminal Revision No. 34 of 2023 nor they ever appeared through their 5 Cr.M.P. No.2571 of 2023 counsel in Criminal Revision No. 34 of 2023. It is next submitted by the learned counsel for the opposite party no.2 that whether or not the C.P. Case No. 6496 of 2022 was dismissed or not on 05.06.2023 is immaterial so far as remanding back the case to the court concerned for passing a fresh order. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

6. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that as has been reiterated by this Court in the case of Meera Singh & Ors. vs. The State of Jharkhand & Anr. (supra), it is a settled principle of law that when the Sessions Judge exercises the same power as the High Court under Section 401(1) of the Cr.P.C. by virtue of Section 399 of the Cr.P.C., cannot exercise the revisional power to pass 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.

7. The learned Sessions Judge, Dhanbad has committed grave error of record by mentioning in the order dated 05.06.2023 in Criminal Revision No. 34 of 2023, that the counsel for the opposite party nos.2 and 3 was present though in fact as rightly submitted by the learned counsel for the petitioners that as is evident from the entire order sheet of Criminal Revision No. 34 of 2023, the opposite party nos.2 and 3 of the criminal revision has never appeared through any lawyer nor any notice was ever issued to them.

8. Under such circumstances, this Court is of the considered view that the order dated 05.06.2023 passed by the learned Sessions 6 Cr.M.P. No.2571 of 2023 Judge, Dhanbad in Criminal Revision No. 34 of 2023 is not sustainable in law.

9. Accordingly, the order dated 05.06.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 34 of 2023 is quashed and set aside.

10. The case is remanded to the Sessions Judge, Dhanbad to proceed ahead with the case after issuing notice to the opposite parties of the criminal revision and provide them with the opportunity of being the heard.

11. As the order dated 05.06.2023 passed by the learned Sessions Judge, Dhanbad in Criminal Revision No. 34 of 2023 has been quashed and set aside so the consequential order dated 20.07.2023 passed by the learned Judicial Magistrate 1st Class, Dhanbad, is also quashed and set aside.

12. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 13th March, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)