Back
2009 Supreme(UK) 111
2010 (1) N.C.C. 55
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Dharam Veer
Criminal Revision No. 127 of 2006
RAVI CHAUDHARY – Revisionist
Versus
STATE OF UTTARANCHAL & ORS. – Respondents
Decided on : 19.03.2009
For the Revisionist : Mr. S.K. Aggarwal assisted by Mr. Tapan Singh, Advs.
For the Respondent No. 1: Mr. M.A. Khan, Brief Holder.
For the Respdt. Nos. 2 to 5 : Mr. U.K. Uniyal assisted by Mr. Sandeep Kothari, Advs.
Headnote:Criminal Procedure Code, 1973, Secs. 397, 399(2), 401(2) — Revision under Section 397 — Powers of Sessions Judge — Exercise of — Scope and limitations of — Revision in question preferred against an order of Magistrate summoning the revisionists/accused on basis of protest petition filed by complainant — Complainant neither impleaded as a party in such revision nor opportunity of hearing afforded to him — Decision of Sessions Judge allowing the revision and thereby setting aside impugned order — Not sustainable — No order can be made to the prejudice of any person unless he had an opportunity of being heard either personally or by pleader in his own defence. (Paras 4, 5)
n.M izfd;k lafgrk] 1973] /kkjk 397] 399¼2½] 401¼2½ & /kkjk 397 ds vUrxZr fuxjkuh esa l= U;k;k/kh'k dh 'kfDr;ksa ds iz;ksx dk foLrkj ,oa lhek,¡ & iz'uxr fuxjkuh tks eftLVªsV ds izksVSLV iSVh'ku ij vfHk;qDrx.k dks ryc djus ds vkns'k ds fo#) ;ksftr dh xbZ & izksVSLV iSVh'ku drkZ dks iz'uxr fuxjkuh esa uk rks i{kdkj cuk;k x;k vkSj uk gh mldks lquokbZ dk volj iznku fd;k x;k rFkk fuxjkuh Lohdkj djrs gq, vk{ksfir vkns'k fujLr dj fn;k x;k & ,slk vkns'k vuqfpr o fof/k foijhr gksus ds dkj.k dk;e jgus ds dkfcy ugha gS & fdlh O;fDr ij izfrdwy izHkko Mkyus okyk vkns'k mldks lquokbZ dk volj iznku fd;s fcuk ikfjr ugha fd;k tk ldrk gSA ¼izLrj 4] 5½
This criminal revision, preferred by the revisionist under Sections 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 03.06.2006 passed by Sessions Judge, Hardwar in Criminal Revision No.281 of 2005, Pradeep Paliwal and others Vs. State of Uttaranchal, whereby the revision preferred by respondent Nos.2 to 5 has been allowed and judgment and order dated 1.9.2005 passed by Judicial Magistrate, Hardwar has been set aside.
2. Heard Sri S.K. Aggarwal, Sr. Adv: assisted by Sri Tapan Singh, Adv. For the revisionist, Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1, Sri U.K. Uniyal, Sr. Adv. assisted by Sri Sandeep Kothari, Adv. for Respondent Nos. 2 to 5 and perused the entire material available on record.
3. In brief, the facts of the case are that revisionist-Ravi Chaudhary had filed a case of injunction against the respondents-Sanjay Paliwal and others in the court of Civil Judge (Senior Divison) Hardwar regarding Plot No. 15 situated in New Hardwar in which the Civil Judge (S.D.) had passed injunction order in favour of the revisionist and against the respondents. On 5.7.2003 at about 1:30 P.M. the respondents along with their accomplice came over the land in dispute and caused injuries to Pradeep Singh and Gajraj Singh with fists and kicks with the intention to kill them. It was further stated that respondents/accused persons Bittoo Paliwal and Pradeep Paliwal also fired upon the revisionist and his servant-Jakir, however they could manage to save their life. It was further stated that those four respondents/accused persons beaten Gajraj Singh badly and also damaged the constructed wall and they also fired on the wheel of Tractor. After that the complainant-revisionist Ravi Chaudhary informed the police on telephone. Then the police came on the place of occurrence and then Gajraj Singh was taken to the hospital. The complainant has also lodged the FIR on the same day i.e. on 5.7.2003 at 4:45 P.M. at P.S. Jwalapur, Distt. Hardwar and the case was accordingly registered against the accused persons. Injured Gajraj Singh was medically examined in the Govt. Hospital, Jwalapur and in the supplementary report, fracture was found in his 10th rib right side. After the investigation of the above-said incident, the Investigating Officer submitted the final report. On the final report submitted by the I.O., the complainant/revisionist Ravi Chaudhary filed a protest petition. On that protest petition, learned Judicial Magistrate, Hardwar after hearing and appreciating the material on record, vide his judgment and order dated 01.09.2005 summoned the respondents-Sanjay Paliwal, Pradeep Paliwal, Rajiv Paliwal and Keshwendra Kripal Paliwal @ Bitoo under Sections 147/148/323/325/427 IPC. Against the said judgment and order dated 1.9.2005, respondents preferred a criminal revision before Sessions Judge, Hardwar. Learned Sessions Judge, Hardwar vide his judgment and order dated 1.9.2005 passed by Judicial Magistrate, Hardwar. Feeling aggrieved with the aforesaid judgment and order dated 3.6.2006 passed by Sessions Judge, Hardwar, the revisionist/complainant has filed the present revision before this Court.
4. Sri S.K. Aggarwal, Sr. Advocate has solely argued that the respondents were summoned by the Judicial Magistrate, Hardwar vide his judgment and order dated 1.9.2005 on the basis of protest petition filed by the revisionist. But in the revision filed before Sessions Judge, the revisionist/complainant-Ravi Chaudhary was not made party and even he had got no information about the filling of the said revision. Hence, the order passed by Sessions Judge is against law and principles of natural justice. In support of this argument, he has cited a judgment rendered by Hon’ble Supreme Court in the case of Mosiruddin Munshi Vs. Mohd. Siraj and others reported in (2008) 8 SCC 434 and relied on para 4 which is reproduced as under :-
“4. We hav
