Setting aside an order of taking cognizance without impleading the complainant as a party is contrary to legal principles and is liable to be set aside.

1. - This petition has been filed under Section 482 Cr.P.C against order dated 8.5.02 passed by the learned Additional Sessions Judge, Camp Court Shri Madhopur, Sikar, in criminal Revision No.67/2001 ( Peeru Khan & others v. State.) by which order of taking cognizance dated 12.4.99 was set aside.

2. Brief facts of the case are that petitioner complainant, Baldewa Ram lodged F.I.R against non petitioner No.2 to 4 and Peeru Khan and alleged that non-petitioners and Peeru Khan demolished temple of Bheruji and constructed boundary wall around the land of temple of Bheruji by force. On this F.I.R, case was registered under Sections 295 and 337 IPC. After investigation, Final Report was submitted against which petitioner filed protest petition and examined witnesses, and trial Court vide order dated 12.4.99 took cognizance against non-petitioners No.2 to 4 & Peeru Khan under Sections 295 and 447 IPC. Order of taking cognizance was challenged by the non-petitioners No.2 to 4 & Peeru Khan, without impleading petitioner as party, and by impugned order, learned Additional Sessions, accepted revision and set aside order of taking cognizance.

3. Heard learned counsel for the petitioner, learned Public Prosecutor and counsel for the respondent No.2 to 4.

4. Learned counsel for the petitioner submitted that revisional Court has committed error in quashing order of cognizance without hearing petitioner who was necessary party, hence, petition may be accepted, and order of revisional Court may be set aside, and, matter may be remanded back to the revisional Court to decide the matter afresh after hearing petitioner whereas learned Public Prosecutor and counsel for the respondent No.2 to 4 submitted that order passed by the revisional Court is in accordance with law, hence, petition may be dismissed.

5. Record reveals that petitioner lodged F.I.R and after investigation Final Report was submitted but on the protest petition filed by the petitioner, trial Court took cognizance against Peeru Khan and respondent No.2 to 4 under Sections 295 and 447 IPC. Order of taking cognizance was challenged by accused persons before the Additional Sessions Judge without impleading petitioner as non applicant.

6. Learned counsel for the petitioner placed reliance on 1998 Cr.L.R.(Raj) 380 Mohammed Iqbal v. State of Rajasthan & Another , 2002(2) Crimes 37 (Rajasthan) Bodu Ram v. State & ors and 2005 (1) Cr.L.R.(Raj)104 Hazi Mohd. Shafi v. State of Rajasthan & Another , in which it has been held that order of taking cognizance for offence, quashed by Sessions Court, without notice to the complainant, is laible to be set aside.

7. In the light of aforesaid judgments, order of revisional Court is liable to be set aside, as this order was passed without impleading complainant as party in revision petition.

8. Consequently,petition under Section 482 Cr.P.C is accepted and order passed by the Additional Sessions Judge, Camp Court Shri Madhopur Sikar in Criminal revision No.67/2001 dated 8.5.2002 is set aside and the matter is remitted back to the learned revisional Court with a direction to pass fresh order after affording opportunity of hearing to the petitioner. The parties are directed to appear before the Additional Sessions Judge,Sikar Camp Shri Madhopur on 10.4.2009.Bail application allowed.

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