DILIPKUMAR KHODIDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present application has been filed under section 482 of Criminal Procedure Code by the applicant, - original accused for an appropriate order to quash and set aside the proceedings of M Case No.20 of 2002 of Mehsana City Police Station pending in the Court of learned Chief Judicial Magistrate, Mehsana. It is also further prayed to set aside the order of the learned Sessions Judge, Mehsana in Criminal Revision Application No.34/06.

(2.) That the respondent No.2, - original complainant filed complaint against the petitioner before the learned JMFC, Mehsana being M Case No.20 of 2002. That the learned JMFC directed investigation under section 156(3) of Criminal Procedure Code to Mehsana City Police Station. That the Investigating Officer after investigation, prayed for C summary on 14-11-02 and the learned Chief Judicial Magistrate, Mehsana by order dated 2-12-02 directed to issue notice to the complainant. The learned Chief Judicial Magistrate rejected C summary report by order dated 20-8-04 and directed further investigation in M Case No.20 of 2002 at Mehsana City Police Station. Again the investigation was carried out and the Police Inspector, Mehsana City Police Station forwarded the report to the Court of learned Chief Judicial Magistrate praying for C summary. By order dated 21-3-06, the learned Chief Judicial Magistrate after hearing the complainant and the accused, accepted C summary report. It appears that being aggrieved by the order passed by the learned Chief Judicial Magistrate dated 21-3-06 in accepting C summary report, original complainant respondent No.2 herein preferred Criminal Misc. Application No.34/06 before the learned Sessions Judge, Mehsana and the learned Sessions Judge, Mehsana after hearing parties by its order dated 11-9-06 has quashed and set aside the order passed by the learned Chief Judicial Magistrate dated 21-3-06 in accepting the C summary report and directed further inquiry. Being aggrieved by the order passed by the aforesaid order dated 11-9-06 passed by the learned Sessions Judge, Mehsana, the petitioner herein, - original accused has preferred the present application.

(3.) Shri AD Shah, learned advocate appearing on behalf of the petitioner, original accused has vehemently submitted that the impugned order passed by the ld. Magistrate in quashing and setting aside the order of granting C summary report is without giving an opportunity to the petitioner and the same is in breach of principles of natural justice as well as section 397(2)/398 of Criminal Procedure Code. It is submitted that by him that when the order of granting C summary was subject matter in revision application u/s 397 of Criminal Procedure Code as per the proviso to section 397/398, no order adverse to the accused can be passed without giving an opportunity to the accused. It is submitted that in the present case, the revisional Court has not given an opportunity to the accused and therefore, it is requested to allow the present petition and to quash and set aside the order passed by the ld. Sessions Court, Mehsana dated 19-9-2006 passed in Criminal Misc. Application No.34/06. As this Court proposes to remand the matter to the learned Sessions Judge as the order passed by the learned Sessions Judge is passed without giving an opportunity to the petitioner, this Court has not considered the submission of the rival parties on merits.