Roshan Jahan v. Mohd. Matloob), pursuant to order dated
Case Details
Neutral Citation No. - 2023:AHC:153549 Court No. - 50 Case :- CRIMINAL REVISION No. - 4071 of 2012
Legal Reasoning
Revisionist :- Mahmood Khan @ Mahmood Alam Khan Opposite Party :- State Of U.P. Another Counsel for Revisionist :- Satyendra Pandey,Lalji Yadav,Yashpal Yadav Counsel for Opposite Party :- Govt. Advocate,Abhishek Srivastava Hon'ble Ram Manohar Narayan Mishra,J. 1. Heard learned counsel for the revisionist, learned A.G.A. for the State, learned counsel for opposite party No.2/de-facto complainant and perused the record. 2. By means of present criminal revision, the revisionist has challenged impugned order dated 25.09.2012, passed by the Judicial Magistrate, Court No. 19, Gorakhpur in Criminal Case No. 37 of 2009 (Roshan Jahan Vs. Mohd. Matloob), pursuant to order dated 04.09.2012, passed by Sessions Judge, Gorakhpur in Criminal Revision No. 231 of 2012 by which revisionist has been summoned under Section 319 Cr.P.C. The revisionist is summoned along with other accused persons Rabad @ Rajia, Parveen and Deepak Khan to face trial under Sections 498A and Section 3/4 D.P. Act together with the accused Mhd. Matlub, husband of de-facto complainant, who is already facing trial in the case. The revisionist has challenged both the orders passed by courts below. The order dated 04.09.2012 passed by learned Additional Sessions Judge, Gorakhpur in Criminal Revision No. 231 of 2012 Smt. Roshan Jahan Vs. State of U.P. and 4 others as well as consequent order passed by learned Judicial Magistrate, Court No. 19, Gorakhpur in Criminal Case No. 37 of 2009 dated 25.09.2012. 3. The contention of learned counsel for the revisionist is that earlier the learned Magistrate has rejected the application dated 25.05.2010 moved by the informant to summon the revisionist as well as other persons vide order dated 21.07.2012 against which a revision was preferred by respondent No. 2 impleading the revisionist as well as other accused persons were sought to be arrayed as an accused under Section 319 Cr.P.C. It is further contended that Revisional Court allowed the revision without any notice to accused. Inasmuch as learned Revisional Court summoned revisionist as well as other accused persons without recording even its own satisfaction in regard to the complicity of the persons sought to be added as an accused. The learned court exercised the power under Section 319 Cr.P.C. mechanically and without proper application of mind, which is unsustainable as the lower revisional court court allowed revision preferred by present opposite party No. 2, the de-facto complainant without giving any notice to proposed accused persons. The impugned order passed by learned revisional court is bad in the eye of law and the consequent order passed by learned trial court on remand against present revisionist and three others in exercise of power under Section 319 Cr.P.C. is also not sustainable under law. 4. Learned counsel for the revisionist submitted that in the light of judgment of Hon'ble Apex Court in Raghu Raj Singh Rousha Vs. M/s. Shivam Sundaram Promoters Pvt. Ltd. 2009 (65) ACC 629, it is mandatory for the revisional court to issue notice to proposed accused persons in a revision against dismissal of application under Section 319 Cr.P.C. as the proposed accused persons have acquired a valuable right in their favour on rejection of their application under Section 319 Cr.P.C. to summon them as additional accused to face trial together with the present accused persons. 5. Per contra, learned counsel appearing for respondent No. 2 submitted that much water has run down the rivers since passing of impugned order dated 04.09.2012 as well as subsequent order passed by learned court below dated 25.09.2012, whereby the accused(present revisionist) as well as three other persons were relatives, who are in-laws of the complainant were summoned to face trial together with the husband of the de-facto complainant. The impugned order passed by court below is not suffering from any illegality or infirmity and it is desirable that accused persons appear before the court below and face trial. He also submitted that the present revisionist and three other persons are summoned but the trial is stand-still before court below in view of passing of order dated 03.01.2013 by this Court, whereby, the entire trial is virtually stayed till date. From perusal of record, it appears that although 4 persons were summoned to face trial under Section 498A, and Section 3/4 D.P. Act by impugned order passed by learned Magistrate dated 25.09.2012, but revision has been preferred Mahmood Khan, the present revisionist only. However, the interim order dated 03.01.2013 was passed in present criminal revision to the effect "till the next date of listing, the date of operation of order dated 25.09.2012 passed by Judicial Magistrate, Court No. 9 Gorakhpur in case no. 37 of 2009, shall remain stayed, which implies that the entire impugned order dated 25.09.2012 passed under Section 319 Cr.P.C. was directed to be stayed, however, there was no embargo to proceed with the trial of the existing accused, who is facing trial from beginning. 6. Learned counsel for revisionist submitted that although Raghu Raj Singh Rousha (supra) relates to rejection of application under Section 156(3) Cr.P.C. and not to the issue of rejection of an application under Section of 319 Cr.P.C., yet paragraphs 10, 11, 12 of the said judgment are reproduced a under:- 10. One of the questions which arises for consideration is as to whether the learned Magistrate has taken cognizance of the offence. Indisputably, if he had taken cognizance of the offence and merely issuance of summons upon the accused persons had been postponed; in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court. 11. Section 397 of the Code empowers the High Court to call for records of the case to exercise its power of revision in order to satisfy itself as regards correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Sub- section (2) of Section 397 of the Code, however, prohibits exercise of such power in relation to any interlocutory order passed in any proceeding. Whereas Section 399 of the Code deals with the Sessions Judge's power of revision; Section 401 thereof deals with the High Court's power of revision. Sub-section (2) of Section 401 of the Code reads, thus: "(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." 12. Submission of Mr. Jaspal Singh that by reason of the impugned order the appellant was not prejudiced and in any event at the pre-summoning stage, he was not an accused, cannot be accepted. Sub-section (2) of Section 401 of the Code refers not only to an accused but also to any person and if he is prejudiced, he is required to be heard. An order was passed partially in his favour. The learned Metropolitan Magistrate has refused to exercise its jurisdiction under Section 156(3) of the Code. Had an opportunity of hearing been given to the appellant, he could have shown that no revision application was maintainable and/ or even otherwise, no case has been made out for interference with the impugned judgment 7. If we seek guidance from aforesaid observations of Hon'ble Apex Court in the light of statutory provisions, we find that in Section 401 Cr.P.C. is applicable to revision before this Court against an order passed by courts below and Section 397 relates to power of Sessions Judge in Criminal revision preferred against an order passed by a subordinate court/court of Sessions. Section 401(2) Cr.P.C. provides that no order under this Section shall be made to the prejudice of the accused or other person unless, he had an opportunity of being heard either personally or by pleader in his own defence. Whereas Section 319(2) provides that wherein proceeding by way of revision is commeced before a Sessions Judge under sub- Section (1), the provision of sub-Sections (2)(3)(4) and (5) and Section 401, as far as may be applied to such proceedings and reference in said sub-sections to the High Court shall be construed as references to the Sessions Judge. Thus, from above statutory provision and the judicial pronouncement of Hon'ble Apex Court in Raghu Raj Singh Rousha (supra), this court is of considered opinion that order passed by learned Sessions Judge, Gorakhpur in Criminal Revision 231/12 while passing the impugned order dated 04.09.2012 is vitiated as learned Sessions Judge, Gorakhpur did not issue any notice to the proposed accused persons while deciding criminal revision No. 231 of 2012 preferred by de-facto complainant against the order of trial court, whereby her application under Section 319 Cr.P.C. was dismissed. In the light of statutory provisions and aforestated case law, it is crystal clear that before deciding criminal revision, notice to respondents, who were sought to be arrayed as accused in said criminal case, was to be mandatorily given by the revisional court. Therefore, on account of want of notice, the impugned order passed by learned revisional court dated 04.09.2012 and consequent order passed by learned trial court dated 25.09.2012 on remand of the case by the revisional court are vitiated and are not sustainable under law, therefore, without expressing any opinion on merits of the revision and merits of the application, under Section 319 Cr.P.C. both the orders of court below, lower revisional court as well as learned Magistrate are hereby set aside and the matter is remanded to Sessions Judge, Gorakhpur to restore the criminal revision No. 231 of 2012 to its original number and decide the same after issuing notice to opposite parties, that is, accused persons who are sought to be arrayed as accused before court below in exercise of power under Section 319 Cr.P.C. and decide the same after giving opportunity of hearing to both sides at the earliest preferably within a period of two months from production of certified copy of this order. 8. Accordingly, the revision stands allowed. This order will cover non-revisionists also, who have not filed revision against impugned order due to legal error detected in the order of learned revisional court. 9. However, it is made clear that in case the lower revisional court remands the matter under Section 319 Cr.P.C,. before court below, the proposed accused side-/revisionist and other accused persons, who were sought to be arraigned under Section 319 Cr.P.C. will have no opportunity of hearing before trial court. Order Date :- 31.7.2023 Nitika Sri. Digitally signed by :- NITIKA SRIVASTAVA High Court of Judicature at Allahabad