Criminal Misc. No. M-7247 of 2009 v. Gurukul Indraprastha Prabandh Samiti, Sarai Khawaja, Faridabad, through Sh. Bhagat Mangtu Ram

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Manoj Bajaj, Advocate, for the petitioners. Mr. N.K. Sanghi, Advocate, for the respondent. SHAM SUNDER, J. This petition, under Section 482 Cr.P.C., for quashing the complaint dated 31.03.04 (Annexure P1), the order dated 20.09.08 (Annexure P4), passed by the Additional Sessions Judge, Faridabad, in Criminal Revision No. 8 dated 01.03.07, reversing the order dated

27.11.06, passed by the Judicial Magistrate 1st Class, Faridabad, vide which, it dismissed complaint No. 154 dated 31.03.04, and the order Criminal Misc. No. M-7247 of 2009 2 dated 01.10.08 (Annexure P5), passed in pursuance to the order dated 20.09.08, has been filed by the petitioners.

2. The facts, in brief, are that, the complainant/respondent, took, on lease, 1400 kanals 14 marlas land, for a period of 99 years, from petitioner No. 2, through two lease deeds dated 17.03.82. It was stated that, since then, the complainant, had been in possession of the land, in dispute. It was further stated that, the dispute, arising out of the aforesaid land, between the complainant and petitioner No. 2, was adjudicated upon by this Court, wherein, the possession of the same, was given to it (complainant), on 20.09.88. It was further stated that, a case, with regard to the aforesaid land, is pending, in the Court of Civil Judge (Senior Division), Faridabad, wherein, a stay order, was passed, on 20.09.03, in favour of the complainant. It was further stated that feeling aggrieved, petitioner No. 2, preferred an appeal, against the said order, in the Court of District Judge, Faridabad, which was dismissed, vide order dated 23.01.04. It was further stated that, having no concern with the land, in dispute, petitioner No. 2, through petitioner No. 1, executed a lease deed dated 29.10.03, in respect thereof, in favour of respondents No. 3 illegally. It was further stated that the lease deed dated 29.10.03, was illegal, null and void, as the same, had been prepared, just with a view to grab the land of the complainant. It was further stated that a complaint was also given, to the local Police, regarding the aforesaid incident, but to no avail. It was further stated that a legal notice Criminal Misc. No. M-7247 of 2009 3 dated 11.12.03, was also issued to the petitioners, in this regard, but in vain. Ultimately, the aforesaid complaint was filed.

3. After hearing the Counsel for the complainant, and, on going through the evidence, on record, the trial Court, dismissed the complaint.

4. Feeling aggrieved, a revision, was preferred by the complainant, before the Additional Sessions Judge, Faridabad, which was allowed, vide order dated 20.09.08.

5. Feeling dissatisfied, the instant petition, has been filed by the petitioners.

6. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

7. The Counsel for the petitioners, submitted that a false complaint, was filed, by the respondent, against the petitioners. He further submitted that the trial Court, after taking into consideration the report, under Section 202 Cr.P.C., filed by the Police, dismissed the complaint, for summoning the accused, under Sections 120-B, 420, 467, 468 and 471 IPC. He further submitted that, however, the Court of Additional Sessions Judge, Faridabad, vide order dated

20.09.08, passed in the revision-petition, without affording an opportunity of hearing, to the petitioners, revised the order of the trial Court. He further submitted that the order dated 20.09.08, revising the order of the trial Court, could not be passed, by the Revisional Court, without issuance of notice, to the petitioners, and Criminal Misc. No. M-7247 of 2009 4 without affording an opportunity of being heard to them. He further submitted that continuation of the complaint, the order dated

20.09.08, and the subsequent order of summoning dated 01.10.08, would amount to sheer abuse of the process of the Court, and, as such, are liable to be quashed.

8. On the other hand, the Counsel for the respondent, submitted that the trial Court, without taking into consideration the allegations, contained in the complaint, and the preliminary evidence, and merely relying on the report, under Section 202 Cr.P.C., filed by the Police, wrongly dismissed the complaint. He further submitted that, the Revisional Court, was right, in revising the order of the trial Court. He further submitted that the Revisional Court, was not required, to give any opportunity of being heard, to the petitioners, before passing the order, in the revision-petition. He further submitted that, if there is any defence available, to the petitioners, they can take the same only, during the trial of the case, and the same, could not be taken into consideration, at the time of deciding the petition, under Section 482 Cr.P.C.

9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, in the manner, detailed hereinafter. After recording the preliminary evidence, the trial Court, came to the conclusion, that there were no sufficient grounds to proceed to summon the petitioners, to face trial, under Sections 120- Criminal Misc. No. M-7247 of 2009 5 B, 420, 467, 468 and 471 IPC. It was against the order dated

27.11.06, that the complainant filed a revision-petition. It is evident, from the order dated 20.09.08, passed by the Revisional Court, that no notice, was given, by it, to the petitioners, though, the complaint against them, for the offences, punishable under Sections 120-B, 420, 467, 468 and 471 IPC, had been dismissed. At their back, the Revisional Court, came to the conclusion, that the offences, punishable under Sections 120-B, 420, 467, 468 and 471 IPC, were made out, and, thus, revised the order of the trial Court, as a result whereof, they were summoned, to face trial, for the aforesaid offences, vide the subsequent order of summoning dated 01.10.08. In my considered opinion, the Revisional Court, was wrong, in passing the order, at the back of the petitioners. In Gurbachan Singh Vs. Ram Parkash, 1996(2), CLR, 247, a revision-petition, was filed against the order, passed by the Trial Magistrate, dismissing the complaint and discharging the accused/respondent. Before passing an order for making further inquiry, into the complaint, in terms of Section 398 Cr.P.C., by the Revisional Court, notice to the accused, was not given. The order, was passed, by the Revisional Court, without hearing the accused. It was held that the same was illegal, and, as such, set aside. In Mohd. Afzal & others Vs. Noor Nisha Begum & another, 1997(2), CLR, 661, it was held, that power under Section 401(1) Cr.P.C., may be exercised by the Sessions Judge, while dealing with a revision before itself. It was Criminal Misc. No. M-7247 of 2009 6 further held that under Section 401 (2), no order to the prejudice of accused, could be passed, unless he had been given an opportunity of being heard. In that case also, the complaint, had been dismissed, under Section 203 by the Magistrate. Revision against the said order, was allowed, by the Sessions Judge, without notice, to the accused. It was, under these circumstances, held that, the order passed, by the Sessions Judge, was held to be invalid and, as such, it was set aside. No judgement, laying down the contrary principle of law, was cited, by the Counsel for the respondents. The principle of law, laid down, in Gurbachan Singh's and Mohd. Afzal & others' cases (supra), is fully applicable, to the facts of the instant case. Continuation of the order dated 20.09.08, passed by the Revisional Court and the subsequent order of summoning dated 01.10.08, would amount to sheer abuse of the process of the Court, and, as such, the same are liable to be quashed.

10. For the reasons, recorded above, the petition is accepted, in the manner, depicted hereinabove. The order dated 20.09.08 (Annexure P4), passed by the Additional Sessions Judge, Faridabad, in Criminal Revision No. 8 dated 01.03.07, reversing the order dated

27.11.06, passed by the Judicial Magistrate 1st Class, Faridabad, vide which, it dismissed complaint No. 154 dated 31.03.04, and the order dated 01.10.08 (Annexure P5), passed in pursuance to the order dated 20.09.08, are quashed, qua the petitioners. The matter, is remanded, to the Revisional Court, with a direction, to the parties, to Criminal Misc. No. M-7247 of 2009 7 appear before it, on 19.03.2010, at 10.00 AM sharp. The Revisional Court, shall pass a fresh order, after affording an opportunity, to the parties of being heard.

11. It is, however, made clear, that if, the petitioners, felt aggrieved against the order, which may be passed, after hearing the Counsel for the parties, by the Revisional Court, then, they will be at liberty, to file a fresh petition, under Section 482 Cr.P.C., for quashing the complaint, and the order of the Revisional Court. Any observation, made in this order, shall not be taken as an expression of mind, on merits of the case.

12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

18.02.2010 Amodh (SHAM SUNDER) JUDGE