Present: - Mr. N.S. Shekhawat Advocate Vs. State of Haryana and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1057428
CourtPunjab and Haryana High Court
Decided OnJul-04-2013
AppellantPresent: - Mr. N.S. Shekhawat Advocate
RespondentState of Haryana and Another
Excerpt:
crl. misc.not m-31936 of 2011 (o&m) 1 in the high court of punjab and haryana at chandigarh. crl. misc.not m-31936 of 2011 (o&m) date of decision:- july 4 , 2013 mangal singh and others petitioners.versus state of haryana and another respondents. coram : hon’ble mr.justice naresh kumar sanghi. present: - mr.n.s.shekhawat, advocate, for the petitioners.mr.anupam sharma, aag, haryana, for respondent no.1-state. mr.jaivir yadav, advocate, for respondent no.2. naresh kumar sanghi,j. prayer in this petition filed under section 482, cr.p.c.is for quashing the complaint no.112/2005 dated 16.12.2005 (annexure p-1) titled “sant lal versus gajraj singh and others”. pending before the learned additional chief judicial magistrate, narnaul; order dated 04.07.2011 (annexue p-3) passed by the learned additional sessions judge, (fast track court).narnaul; and the order dated 18.08.2011 (annexure p-4) passed by the learned additional chief judicial magistrate, narnaul, whereby the petitioners were summoned to face trial for the offences punishable under sections 420, 465, 467, 471 and 120-b, ipc. crl. misc.not m-31936 of 2011 (o&m) 2 brief facts of the case are that respondent no.2-complainant sant lal executed a power of attorney in favour of his nephew gajraj singh son of umrao singh and the same was cancelled vide cancellation deed dated 08.06.2005. sant lal was stated to be the owner in possession of 101 kanals of land. even after cancellation of the power of attorney, gajraj singh son of umrao singh, forged an agreement to sell in the back date and on the basis of the said forged agreement to sell, he alienated 77 kanal 3 marlas land of the complainant, sant lal, in favour of his two brothers and two sisters.kuldeep, deen dayal and leela ram were the attesting witnesses of the alleged forged agreement to sell. rai singh and sheo narain allegedly attested the receipt dated 31.12.2004 regarding the payment of ` 4,00,000/- to the proposed vendor gajraj singh. jeewan ram sanghi had scribed the agreement to sell. the stamp papers were purchased from ram niwas, stamp vendor. it was alleged that total 12 accused in collusion with each other forged the agreement to sell and the receipt. after recording of the preliminary evidence and hearing the complainant, the learned additional chief judicial magistrate, narnaul, dismissed the complaint holding that no prima-facie case was made out against the accused for summoning them for the alleged offences mentioned in the complaint. aggrieved against the order dated 09.07.2010 passed by the learned additional chief judicial magistrate, narnaul, complainant-respondent no.2 filed a revision petition which was allowed by the learned additional sessions judge (fast track crl. misc.not m-31936 of 2011 (o&m) 3 court).narnaul, vide its order dated 04.07.2011 whereby the order dated 09.07.2010 passed by the learned additional chief judicial magistrate, narnaul, was set-aside with a direction to reconsider the summoning of the accused persons in the light of the observations made in the impugned order. the order dated 04.07.2011 (annexure p-3) passed by the learned additional sessions judge, narnaul, has been challenged by the petitioners.accused by way of the present petition. the sole contention raised by mr.n.s.shekhawat, learned counsel for the petitioners.is that without issuing notice and hearing the petitioners.the learned revisional court has reversed the finding of the learned additional chief judicial magistrate, narnaul, in a revision petition, which is against the spirit of the provisions enshrined in sections 397 to 401 (chapter xxx).cr.p.c.in support of the contention that the learned revisional court had not issued notice to the petitioners-accused and did not hear them before deciding the criminal revision petition, affidavit dated 02.02.2013 of the petitioner-mangal singh has been placed on record. mr.jaivir yadav, learned counsel for respondent no.2 very fairly concedes that before deciding the criminal revision petition, the learned additional sessions judge, narnaul, should have issued notice and heard the petitioner in view of the ratio of the latest judgment passed by hon'ble the supreme court in the matter of manharibhai muljibhai kakadia and another versus shaileshbhai mohanbhai patel and others.2012 (4) rcr (criminal) crl. misc.not m-31936 of 2011 (o&m”689. in manharibhai muljibhai kakadia's case (supra).the sole question for consideration before hon'ble the supreme court was, whether a suspect (accused) was entitled to hearing by the revisional court in a revision preferred by the complainant challenging an order of magistrate dismissing the complaint under section 203 of the code of criminal procedure, 1973. after discussing the various provisions of the criminal procedure code, 1973 and a catena of judgments delivered by different hon'ble courts, the full bench of hon'ble the supreme court held as under:- “.........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 magistrate dismissing the complaint and the crl. misc.not m-31936 of 2011 (o&m) 5 complaint is restored to the file of the magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings not they are entitled to any hearing of any sort whatsoever by the magistrate until the consideration of the matter by the magistrate for issuance of process. we answer the question accordingly. the judgments of the high courts to the contrary are overruled.” following the above expression of hon'ble the supreme court, the order dated 04.07.2011 passed by the learned additional sessions judge (fast track court).narnaul, (annexure p-3) is set-aside and the matter is remitted to the said court for deciding the criminal revision petition on merits in accordance with law after issuing notice and hearing the respondents- suspects-accused. it is made clear that this court has not expressed any opinion with regard to the merit or otherwise of the facts of this case. the learned revisional court would be free to appreciate the merits of the case with regard to the legality, propriety or perversity of the order passed by the learned additional chief judicial magistrate, narnaul. the petition is disposed of with the above observations. (naresh kumar sanghi) july 4, 2013. judge anoop
Judgment:

Crl.

Misc.not M-31936 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh.

Crl.

Misc.not M-31936 of 2011 (O&M) Date of Decision:- July 4 , 2013 Mangal Singh and others PetitioneRs.Versus State of Haryana and another Respondents.

CORAM : HON’BLE MR.JUSTICE NARESH KUMAR SANGHI.

Present: - Mr.N.S.Shekhawat, Advocate, for the petitioneRs.Mr.Anupam Sharma, AAG, Haryana, for respondent No.1-State.

Mr.Jaivir Yadav, Advocate, for respondent No.2.

NARESH KUMAR SANGHI,J.

Prayer in this petition filed under Section 482, Cr.P.C.is for quashing the complaint No.112/2005 dated 16.12.2005 (Annexure P-1) titled “Sant Lal Versus Gajraj Singh and others”.

pending before the learned Additional Chief Judicial Magistrate, Narnaul; order dated 04.07.2011 (Annexue P-3) passed by the learned Additional Sessions Judge, (Fast Track Court).Narnaul; and the order dated 18.08.2011 (Annexure P-4) passed by the learned Additional Chief Judicial Magistrate, Narnaul, whereby the petitioners were summoned to face trial for the offences punishable under Sections 420, 465, 467, 471 and 120-B, IPC.

Crl.

Misc.not M-31936 of 2011 (O&M) 2 Brief facts of the case are that respondent No.2-complainant Sant Lal executed a power of attorney in favour of his nephew Gajraj Singh son of Umrao Singh and the same was cancelled vide cancellation deed dated 08.06.2005.

Sant Lal was stated to be the owner in possession of 101 Kanals of land.

Even after cancellation of the power of attorney, Gajraj Singh son of Umrao Singh, forged an agreement to sell in the back date and on the basis of the said forged agreement to sell, he alienated 77 Kanal 3 Marlas land of the complainant, Sant Lal, in favour of his two brothers and two sisteRs.Kuldeep, Deen Dayal and Leela Ram were the attesting witnesses of the alleged forged agreement to sell.

Rai Singh and Sheo Narain allegedly attested the receipt dated 31.12.2004 regarding the payment of ` 4,00,000/- to the proposed vendor Gajraj Singh.

Jeewan Ram Sanghi had scribed the agreement to sell.

The stamp papers were purchased from Ram Niwas, stamp vendor.

It was alleged that total 12 accused in collusion with each other forged the agreement to sell and the receipt.

After recording of the preliminary evidence and hearing the complainant, the learned Additional Chief Judicial Magistrate, Narnaul, dismissed the complaint holding that no prima-facie case was made out against the accused for summoning them for the alleged offences mentioned in the complaint.

Aggrieved against the order dated 09.07.2010 passed by the learned Additional Chief Judicial Magistrate, Narnaul, complainant-respondent No.2 filed a revision petition which was allowed by the learned Additional Sessions Judge (Fast Track Crl.

Misc.not M-31936 of 2011 (O&M) 3 Court).Narnaul, vide its order dated 04.07.2011 whereby the order dated 09.07.2010 passed by the learned Additional Chief Judicial Magistrate, Narnaul, was set-aside with a direction to reconsider the summoning of the accused persons in the light of the observations made in the impugned order.

The order dated 04.07.2011 (Annexure P-3) passed by the learned Additional Sessions Judge, Narnaul, has been challenged by the petitioneRs.accused by way of the present petition.

The sole contention raised by Mr.N.S.Shekhawat, learned Counsel for the petitioneRs.is that without issuing notice and hearing the petitioneRs.the learned Revisional Court has reversed the finding of the learned Additional Chief Judicial Magistrate, Narnaul, in a revision petition, which is against the spirit of the provisions enshrined in Sections 397 to 401 (Chapter XXX).Cr.P.C.In support of the contention that the learned Revisional Court had not issued notice to the petitioners-accused and did not hear them before deciding the Criminal Revision Petition, affidavit dated 02.02.2013 of the petitioner-Mangal Singh has been placed on record.

Mr.Jaivir Yadav, learned Counsel for respondent No.2 very fairly concedes that before deciding the Criminal Revision Petition, the learned Additional Sessions Judge, Narnaul, should have issued notice and heard the petitioner in view of the ratio of the latest judgment passed by Hon'ble the Supreme Court in the matter of Manharibhai Muljibhai Kakadia and another Versus Shaileshbhai Mohanbhai Patel and otheRs.2012 (4) RCR (Criminal) Crl.

Misc.not M-31936 of 2011 (O&M”

689.

In Manharibhai Muljibhai Kakadia's case (supra).the sole question for consideration before Hon'ble the Supreme Court was, whether a suspect (accused) was entitled to hearing by the Revisional Court in a revision preferred by the complainant challenging an order of Magistrate dismissing the complaint under Section 203 of the Code of Criminal Procedure, 1973.

After discussing the various provisions of the Criminal Procedure Code, 1973 and a catena of judgments delivered by different Hon'ble Courts, the full Bench of Hon'ble the Supreme Court held as under:- “.........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 Magistrate dismissing the complaint and the Crl.

Misc.not M-31936 of 2011 (O&M) 5 complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings not they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process.

We answer the question accordingly.

The judgments of the High Courts to the contrary are overruled.”

Following the above expression of Hon'ble the Supreme Court, the order dated 04.07.2011 passed by the learned Additional Sessions Judge (Fast Track Court).Narnaul, (Annexure P-3) is set-aside and the matter is remitted to the said Court for deciding the Criminal Revision Petition on merits in accordance with law after issuing notice and hearing the respondents- suspects-accused.

It is made clear that this Court has not expressed any opinion with regard to the merit or otherwise of the facts of this case.

The learned Revisional Court would be free to appreciate the merits of the case with regard to the legality, propriety or perversity of the order passed by the learned Additional Chief Judicial Magistrate, Narnaul.

The petition is disposed of with the above observations.

(NARESH KUMAR SANGHI) July 4, 2013.

JUDGE Anoop