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22#$~ HIGH COURT OF DELHI
CRL.REV.P. 498/2009 & Crl.
M.A. No. 10418/2009 (Stay)
ASHWANIPANWAR & ANR. Petitioners
Through: Mr. Manoj Kumar, Advocate.
CRL.REV.P. 498/2009 & Crl.
M.A. No. 10418/2009 (Stay)
ASHWANIPANWAR & ANR. Petitioners
Through: Mr. Manoj Kumar, Advocate.
VERSUS
STATE N.C.T. OF DELHI & ORS. Respondents
Through: Mr. Mukesh Gupta, APP for the State.
Through: Mr. Mukesh Gupta, APP for the State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
08.09.2011 Despite service of notice to the Respondent No. 2 neither any reply has been filed nor has anybody appeared on behalf of Respondent No. 2 either on the last date or today despite pass-over. So this Court has proceeded to hear the petition.
The Respondent No. 2 filed a complaint case before the learned
Metropolitan Magistrate seeking registration of FIR against the Petitioners by filing an application under Section 156 (3) Cr.P.C. on the allegations of trespass into the shop and forgery of documents creating tenancy in favour of the Petitioners. Vide order dated 12^*^ August, 2008 the learned
Metropolitan Magistrate while declining to send the matter for investigation
08.09.2011 Despite service of notice to the Respondent No. 2 neither any reply has been filed nor has anybody appeared on behalf of Respondent No. 2 either on the last date or today despite pass-over. So this Court has proceeded to hear the petition.
The Respondent No. 2 filed a complaint case before the learned
Metropolitan Magistrate seeking registration of FIR against the Petitioners by filing an application under Section 156 (3) Cr.P.C. on the allegations of trespass into the shop and forgery of documents creating tenancy in favour of the Petitioners. Vide order dated 12^*^ August, 2008 the learned
Metropolitan Magistrate while declining to send the matter for investigation
CRL.REVP. 498/2009
2011:DHC:19622 under Section 156(3) Cr.P.C., put the samefor pre-summoning evidence for
29'^ September, 2008.
Aggrieved againstthe said orderthe Respondent No. 2 filed a revision petition before the learned Additional Sessions Judge. The learned
Additional Sessions Judge without issuance of notice to the Petitioners herein allowed the revision petition and set aside the order of the learned
Metropolitan Magistrate on the ground that it was a non-speaking order.
Petitioners impugn this order oflearned Additional Sessions Judge dated 1^^
September, 2009 in the present petition.
The only contention raised is that the impugned order dated 1^^
September, 2009 was passed by the learned Additional Sessions Judge without hearing the Petitioners herein. In this regard reliance is placed on
UmaNath Pandey and others vs. State ofU.P. and another, JT 2009 (4) SC
121; P. Sundarrajan and others vs. R. Vidhya Sekar, 2004 (13) SCC 472 and
Raghu Raj Singh Rousha vs. Shivam Sundaram Promoters Private Limited and another, 2009 (2) SCC 363.
The present petition is entitled to be allowed on the short ground that the Petitioners have not been heard in view of the law laid down in the aforementioned decisions of the Hon'ble Supreme Court., It has been
CRL.REVP, 498/2009 Page 2 of3 Y categorically held that Section 401 (2) Cr.P.C. and also the principles of natural justice warrant hearing to be afforded to the affected party and the orders passed in violation of the principles of natural justice as also the requirements of the law are un-sustainable. Further Section 399 (2) Cr.P.C. provides that the provision of Sub-Sections (2), (3), (4) and (5) of Section
401 shall apply to such proceedings and references in the said Sub-Sections to the High Court shall be construed as references to the Sessions Judge.
In view of the facts of the present case the impugned order dated 1®*
September, 2009 is set aside and the Learned Additional Sessions Judge is directed to rehear the revision petition after affording opportunity to both the sides.
The parties are directed to appear before the learned Additional
Sessions Judge on 12^^ October, 2011.
No fiirther orders are required to be passed in the present petition.
Petition and application are disposed of. Order dasti.
'vn' MUKTA GUPTA, J.
SEPTEMBER 08, 2011
2011:DHC:19622 under Section 156(3) Cr.P.C., put the samefor pre-summoning evidence for
29'^ September, 2008.
Aggrieved againstthe said orderthe Respondent No. 2 filed a revision petition before the learned Additional Sessions Judge. The learned
Additional Sessions Judge without issuance of notice to the Petitioners herein allowed the revision petition and set aside the order of the learned
Metropolitan Magistrate on the ground that it was a non-speaking order.
Petitioners impugn this order oflearned Additional Sessions Judge dated 1^^
September, 2009 in the present petition.
The only contention raised is that the impugned order dated 1^^
September, 2009 was passed by the learned Additional Sessions Judge without hearing the Petitioners herein. In this regard reliance is placed on
UmaNath Pandey and others vs. State ofU.P. and another, JT 2009 (4) SC
121; P. Sundarrajan and others vs. R. Vidhya Sekar, 2004 (13) SCC 472 and
Raghu Raj Singh Rousha vs. Shivam Sundaram Promoters Private Limited and another, 2009 (2) SCC 363.
The present petition is entitled to be allowed on the short ground that the Petitioners have not been heard in view of the law laid down in the aforementioned decisions of the Hon'ble Supreme Court., It has been
CRL.REVP, 498/2009 Page 2 of3 Y categorically held that Section 401 (2) Cr.P.C. and also the principles of natural justice warrant hearing to be afforded to the affected party and the orders passed in violation of the principles of natural justice as also the requirements of the law are un-sustainable. Further Section 399 (2) Cr.P.C. provides that the provision of Sub-Sections (2), (3), (4) and (5) of Section
401 shall apply to such proceedings and references in the said Sub-Sections to the High Court shall be construed as references to the Sessions Judge.
In view of the facts of the present case the impugned order dated 1®*
September, 2009 is set aside and the Learned Additional Sessions Judge is directed to rehear the revision petition after affording opportunity to both the sides.
The parties are directed to appear before the learned Additional
Sessions Judge on 12^^ October, 2011.
No fiirther orders are required to be passed in the present petition.
Petition and application are disposed of. Order dasti.
'vn' MUKTA GUPTA, J.
SEPTEMBER 08, 2011
CRL.REVP. 498/2009 Page 3 of3
JUDGMENT