RADHA DEVI Vs. SHAFIQ ALIAS SHAFAQ

JUDGEMENT

(1.) This is a petition under S.482 of the Code of Criminal Procedure for recalling the order dated 8-7-2002 in Criminal Revision No. 361/2000 (Shafique alias Shafaq v. State of M.P.), whereby the revision was allowed and Shafique alias Shafaq (R1) was discharged. The petitioner in this case is the prosecutrix, who had filed F.I.R. in the case and she claims that she was a necessary party in the revision and no order could have been passed unless she was noticed and heard.

(2.) Facts in brief are that on F.I.R. of the petitioner, after due investigation, a charge-sheet under Ss. 363, 366, 368 and 370 of the Indian Penal Code was filed by the Police Crime No. 95/99. The case was committed to the Court of Sessions. After hearing both the parties, the trial Court discharged Shafique alias Shafaq (R1) on 24-3-2000. Thereafter the statement of the petitioner on oath was recorded. The prosecution applied u/S. 319 of the Code of Criminal Procedure for recalling Shafique alias Shafaq (R1) to face his trial under S. 309 of the Code. The Sessions Court allowed the application and recalled Shafique alias Shafaq (R1). On revision by Shafique alias Shafaq (R1), in which the petitioner as prosecutrix was not made as party, this Court by its earlier order dated 9-7-2002 finding the case squarely covered by Sohanlal v. State of Rajasthan, AIR 1990 SC 2158 : (1990 Cri LJ 2302) allowed the revision and discharged Shafique alias Shafaq (R1). Certainly, no notice was given to the petitioner.

(3.) The petitioner has claimed that she being the prosecutrix was certainly entitled to be heard before revision of Shafique alias Shafiq (R-1) was allowed and he was discharged by this Court. She claims that she is not only a necessary party in such revision but is entitled to a notice also. She has placed reliance on Bhagwant Singh v. Commissioner of Police, 1985 Cri LJ 1521 : AIR 1985 SC 1285 wherein the Supreme Court had directed that Magistrate should give notice and hear the informant if he decides not to take cognizance of the offence or drop proceedings against some persons mentioned in FIR u/S. 173 of the Cr. P. C. This direction of the Supreme Court was relied upon and confirmed in Union Public Service Commission v. S. Papaiah, 1997 Cri LJ 4636 : (AIR 1997 SC 3876) an order whereby Magistrate accepted the final report submitted by investigating agency under S. 173 and dropped the proceedings without giving notice to the informant. The order was held illegal. Certainly, the situation is different in the present case. Here question involved is whether the complainant-prosecutrix is a necessary party in a revision filed by the accused of the case.