PARMESHWAR LAL Vs. DILIP SHARMA

JUDGEMENT

(1.) In this case the learned Magistrate accepted the negative report, as submitted by the police in crime No. 44/86 under Sections 454, 147, 148 and 323, I.P.C. P.S. : Chruru, Dilip Kumar, who was the informant in the present case, preferred a revision under Section 397, Cr. P.C. against the order of the learned Magistrate. By his impugned order the Addl. Sessions Judge Churu accepted his petition and remanded the case of the learned Magistrate with the direction that since there existed prima facie evidence for taking cognizance for the aforementioned offences and summoning the petitioners as accused thereof, he should pass necessary orders in that behalf.

(2.) The grievance of the learned counsel for the petitioners is that the learned Addl. Sessions Judge could have certainly revised the order of the learned Magistrate under Section 397, Cr. P.C. but he should not have passed such orders without hearing the petitioners and also should not have expressed his opinion over the merits of the commission of the offences, alleged to have been committed in this case, and to have directed the learned Magistrate to take cognizance of such offences. In support of his contention, the learned Magistrate has relied upon the decisions of this Court in the case of Kishan Lal v. State of Rajasthan, 1991 Raj Cri C 619 and Dr. S. M. Gupta v. State of Rajasthan, 1992 Cri LR (Raj) 651.

(3.) Ordinarily, a person, unless he has been summoned as an accused in a case, has no locus standi in that case and cannot claim a right of hearing and participation in the proceedings of the case. However, the principle of natural justice at the revisional stage demands that before passing an order adverse to him the revisional Court should hear him. That is the ratio of the decision in the case of Kishan Lal, (1991 Raj Cri C 619). Such view appears to have been taken on the study of several decisions of the Supreme Court mainly V. C. Shukla v. Delhi Administration, 1980 (Suppl.) SCC 249 : 1980 Cri LJ 965) where the Apex Court, inter alia, observed that "No one suggests that it is unfair to launch criminal prosecution without first hearing of the accused". In the case of A. K. Subbaiah v. State of Karnataka,, (1987) 4 SCC 557 (at p. 564) the Apex Court appears to have clarified that if the revisional Court, after exercising jurisdiction under Section 401 wants to pass an order to the prejudice of such a person. It is necessary that the person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceeding in the Court below nor is accepted at any stage even after the revision to be joined as a party. Since the revision petition was heard by the learned Sessions Judge under Section 397 read with Section 400 though not under Section 401, Cr. P.C., the above observations of the Apex Court may very-well be attracted to the present case. Since the learned Magistrate had not taken cognizance of any offence and summoned the present petitioners as accused in the case, the informant Dilip Singh might not have thought it necessary to implead the petitioners as party to his petition. Nor the Court of Additional Sessions Judge might have though it necessary to call the present petitioners before passing the impugned order, though in the way and in the manner, he passed the impugned order, he was expected to have heard the petitioners in the matter before passing the impugned order. In any case and under the circumstances attending on the commission of the offences. In the present case, I would like to fall in line with views expressed in the case of Kishan Lal (1991 Raj Cri C 619) (supra).