HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 5023/2018

1.

Moti Lal Nayak S/o Late Shri Dhanna Lal Nayak, By Caste

Nayak, R/o Opposite Bajrang Daal Mil, Near Pani Ki Tanki,

Kotdi, Kota, Presently At 301, Sarvodya Nagar, Deoli

Raod, Borkheda, Kota.

2.

Smt. Manbhar Nayak W/o Shri Moti Lal Nayak, By Caste

Nayak, R/o Opposite Bajrang Daal Mil, Near Pani Ki Tanki,

Kotdi, Kota, Presently At 301, Sarvodya Nagar, Deoli

Raod, Borkheda, Kota.

----Petitioners

Versus

1.

State Of Rajasthan, Jaipur

2.

Ritesh Mewara S/o Shri Tarachand Mewara, By Caste

Kalal, R/o Vinay Vatika 507, Kotdi, Kota.

----Respondents

For Petitioner(s)

:

Mr. Sudhir Jain

For Respondent(s)

:

Mr. Roshan Sharma on behalf of

Mr. Anuroop Singhi

Mr. Fatehram Meena, PP

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment / Order

02/01/2020

1.

The petitioners before this court assail the order dated

2.1.2018 passed by the Learned Additional Session Judge,Women

Atrocity Cases No.1, Kota.

2.

Learned counsel submits that the complainant had

challenged the order passed by the Learned ACJM, Kota dated

17.5.2017 whereby the protest petition filed by the complainant

against the final report submitted by the Investigating Authority

no. 229/2012 was rejected. However, in the Revision Petition, the

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[CRLMP-5023/2018]

petitioners who are accused in the complaint were not given an

opportunity of hearing.

3.

Learned counsel submits that while it is true that the learned

ACJM was not required to give opportunity of hearing of deciding

for the protest petition, however, at this revisional stage the

petitioners were required to be heard as the case against them

stood closed after the protest petition was rejected.

4.

Learned counsel has relied on the larger Bench’s judgment in

the case of “Manharibhai Muljibhai Kakadla Vs. Shailesh

Bhai Mohanbhai Patel” reported in 2012(10)SCC517.

5.

I have considered the submission and find that vide order

dated 2.1.2018, the learned Additional Session Judge while

accepting the revision petition has set aside the order passed by

the Learned ACJM dated 17.5.2017 and remanded the matter back

to the concerned ACJM for reexamining the final report and

hearing the complainant. At the stage of revision, the learned

Additional Session Judge has not given opportunity of hearing to

the accused petitioners.

6.

In “Manharibhai Muljibhai Kakadla(supra), the Apex

Court was examining the law with regard to the aforesaid situation

whether the complainant’s revision against the dismissal of the his

complaint, can be decided without opportunity of hearing to the

accused petitioner. The Apex Court examined the provisions of

Section 401(2) of the Code and law laid down by the two Judge’s

Bench and held as under:

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[CRLMP-5023/2018]

“53. We are in complete agreement with the view

expressed by this Court in P. Sundarrajan1 , Raghu

Raj Singh Rousha2 and A. N. Santhanam3. We hold,

as it must be, that in a revision petition preferred

by complainant before the High Court or the

Sessions Judge challenging an order of the

Magistrate dismissing the complaint under Section

203 of the Code at the stage under Section 200 or

after following the process contemplated under

Section 202 of the Code, the accused or a person

who is suspected to have committed crime is entitled

to hearing by the revisional court. In other words,

where complaint has been dismissed by the

Magistrate under Section 203 of the Code, upon

challenge to the legality of the said order being laid

by the complainant in a revision petition before the

High Court or the Sessions Judge, the persons who

are arraigned as accused in the complaint have a

right to be heard in such revision petition. This is a

plain requirement of Section 401(2) of the Code. If

the revisional court overturns the order of the