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( . ^ $-12 & 13 (common order)
HIGH COURT OF DELHI
CRL.M.C. 241/2016 and Crl.M.A.1042/2016
HIGH COURT OF DELHI
CRL.M.C. 241/2016 and Crl.M.A.1042/2016
CRL.M.C. 398/2017 and Crl.M.A. 1772/2017
MAHESH LILORIYA Petitioner
Through: Mr. Raghavendra M. Bajaj, Advocate with Mr. Sunit Kumar Mondal, Advocate
MAHESH LILORIYA Petitioner
Through: Mr. Raghavendra M. Bajaj, Advocate with Mr. Sunit Kumar Mondal, Advocate
VERSUS
GOVT OFNCTOFDELHI & ANR Respondents
Through: Mr. Mukesh Kumar and Ms. Meenakshi Dahiya, APP for the
State Mr. Dhananjai Rana, Adv. with Mr. Shubham Chhabra, Adv. for R-2.
Mr. Ranjan Doshi, Adv. for R-3 to R-7.
Through: Mr. Mukesh Kumar and Ms. Meenakshi Dahiya, APP for the
State Mr. Dhananjai Rana, Adv. with Mr. Shubham Chhabra, Adv. for R-2.
Mr. Ranjan Doshi, Adv. for R-3 to R-7.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
13.09.2018 On the complaint (CC No.205/1/2010) of the second respondent (the complainant) the Metropolitan Magistrate had held a preliminary inquiry into the allegations statedly showing commission of offences punishable under Sections 500/120-B/34 of Indian Penal Code, 1860 (IPG) by the petitioner and the otherprivate party respondents. The complaint, however, was dismissed by order dated 22.09.2011, under Sections 203 ofthe Code of
Criminal Procedure, 1973 (Cr.P.C.), on the basis of finding that the ingredients required for offence under Section 500 IPC to be constituted had
13.09.2018 On the complaint (CC No.205/1/2010) of the second respondent (the complainant) the Metropolitan Magistrate had held a preliminary inquiry into the allegations statedly showing commission of offences punishable under Sections 500/120-B/34 of Indian Penal Code, 1860 (IPG) by the petitioner and the otherprivate party respondents. The complaint, however, was dismissed by order dated 22.09.2011, under Sections 203 ofthe Code of
Criminal Procedure, 1973 (Cr.P.C.), on the basis of finding that the ingredients required for offence under Section 500 IPC to be constituted had
CRL.M.C. 241/2016 etc. Page 1 of3
2018:DHC:8265
^ <•
"-i not been satisfied.
The complainant assailed the said order before the court of Sessions invoking its revisional jurisdiction by filing petition for Criminal Revision
(No.161/2011). The revision was allowed by order dated 31.01.2012 by the court of Sessions holding that the order of dismissal of the complaint was not sustainable requiring the trial court (theMetropolitan Magistrate) to hear
C the matter afresh and take a fresh decision in light of the observations recorded in the order of the revisional court.
The said order of the revisional court was challenged by
Crl.M.C.241/2015 by one of the persons thereby adversely affected, one of the contentions raised being that the revisional court had failed to issue notice to him or grant an opportunity ofbeing heard.
While the said petition was pending, the Metropolitan Magistrate passed a fresh order now summoning the persons shown in the array of accused in the complaint and later by order dated 19.10.2016 proceeding with the trial by serving a notice under Section 251 Cr;P.C. The said subsequent order is challenged by Crl.M.C.398/2017, which has also come up alongside the first petition.
The learned counsel for the second respondent (the complainant), on being asked, fairly conceded that the revisional court while setting aside the order dated 22.09.2011 had failed to issue notice to the parties who were adversely affected by the order which was eventually passed and, thus, they not having been granted any right of hearing. This, it is also fairly conceded, is against the requirement of law in Section 401(2) Cr.P.C., as also declared by the Supreme Court in Manharibhai MuljibhaiKakadia &
CRL.M.C. 241/2016etc. Page 2 of3 Anr. vs. Shaileshbhai Mohanbhai Patel & Ors., 2012 (4) JCC 3105, and
Prime Impex Limited &Ors. vs. PECLimited &Anr., (2014) 13SCC 591.
In the above facts and circumstances, the learned counsel for the complainant fairly concedes that the impugned order of the revisional court setting aside the order dated 22.09.2011, the order of the Metropolitan
Magistrate summoning the petitioner (and others) and subsequent order
C putting them on trial by sending notice under Section 251 Cr.P.C. may be set aside, the request being that the matter be remitted to the revisional court.
In this view, the impugned orders are set aside. The matter is remitted to the revisional court for fresh hearing on the petition challenging the order dated 22.09.2011, a fresh decision to be taken after hearing all the parties thereby affected.
The complainant, who is revisionist, and the other parties, who are present before this court, and are respondents in the revision petition, shall appear before therevisional court for fiirther proceedings in accordance with
^ law on 22"'' October, 2018.
Needless to add, if there are parties other than those who appear pursuant to the directions, who also require to be heard before a decision is taken on the revision petition, the revisional court will bear in mind the need to issue notices to them as well.
Both the petitions stand disposed ofin above terms.
This disposes ofpending applications as well.
SEPTEMBER 13,2018/vk CRL.M.C. 241/2016etc. Page 3 of3
2018:DHC:8265
^ <•
"-i not been satisfied.
The complainant assailed the said order before the court of Sessions invoking its revisional jurisdiction by filing petition for Criminal Revision
(No.161/2011). The revision was allowed by order dated 31.01.2012 by the court of Sessions holding that the order of dismissal of the complaint was not sustainable requiring the trial court (theMetropolitan Magistrate) to hear
C the matter afresh and take a fresh decision in light of the observations recorded in the order of the revisional court.
The said order of the revisional court was challenged by
Crl.M.C.241/2015 by one of the persons thereby adversely affected, one of the contentions raised being that the revisional court had failed to issue notice to him or grant an opportunity ofbeing heard.
While the said petition was pending, the Metropolitan Magistrate passed a fresh order now summoning the persons shown in the array of accused in the complaint and later by order dated 19.10.2016 proceeding with the trial by serving a notice under Section 251 Cr;P.C. The said subsequent order is challenged by Crl.M.C.398/2017, which has also come up alongside the first petition.
The learned counsel for the second respondent (the complainant), on being asked, fairly conceded that the revisional court while setting aside the order dated 22.09.2011 had failed to issue notice to the parties who were adversely affected by the order which was eventually passed and, thus, they not having been granted any right of hearing. This, it is also fairly conceded, is against the requirement of law in Section 401(2) Cr.P.C., as also declared by the Supreme Court in Manharibhai MuljibhaiKakadia &
CRL.M.C. 241/2016etc. Page 2 of3 Anr. vs. Shaileshbhai Mohanbhai Patel & Ors., 2012 (4) JCC 3105, and
Prime Impex Limited &Ors. vs. PECLimited &Anr., (2014) 13SCC 591.
In the above facts and circumstances, the learned counsel for the complainant fairly concedes that the impugned order of the revisional court setting aside the order dated 22.09.2011, the order of the Metropolitan
Magistrate summoning the petitioner (and others) and subsequent order
C putting them on trial by sending notice under Section 251 Cr.P.C. may be set aside, the request being that the matter be remitted to the revisional court.
In this view, the impugned orders are set aside. The matter is remitted to the revisional court for fresh hearing on the petition challenging the order dated 22.09.2011, a fresh decision to be taken after hearing all the parties thereby affected.
The complainant, who is revisionist, and the other parties, who are present before this court, and are respondents in the revision petition, shall appear before therevisional court for fiirther proceedings in accordance with
^ law on 22"'' October, 2018.
Needless to add, if there are parties other than those who appear pursuant to the directions, who also require to be heard before a decision is taken on the revision petition, the revisional court will bear in mind the need to issue notices to them as well.
Both the petitions stand disposed ofin above terms.
This disposes ofpending applications as well.
SEPTEMBER 13,2018/vk CRL.M.C. 241/2016etc. Page 3 of3
JUDGMENT