Rajasthan High Court: Sanjeev Prakash Sharma, J., disposed of a petition which was filed against the order passed by the Additional Session Judge, Women Atrocity Cases No.1, Kota.

The counsel for the petitioner, Mr Sudhir Jain submitted that the complainant had challenged the order passed by the Learned ACJM, Kota whereby the protest petition filed by the complainant against the final report submitted by the Investigating Authority no. 229 of 2012 was rejected, however in the Revision Petition, the petitioners who were accused in the complaint were not given an opportunity of hearing.

The Court observed that at the stage of revision, the Additional Session Judge has not given the opportunity of hearing to the accused petitioners. The Court explained the judgment relied on by the counsel of the petitioner in Manharibhai Muljibhai Kakadla v. Shailesh Bhai Mohanbhai Patel, (2012) 10 SCC 517 wherein the Supreme Court had examined the law Section 401(2) of the Code and decided whether the complainant’s revision against the dismissal of his complaint, could have been decided without opportunity of hearing to the accused petitioner, relevant extract of which is given under,

            “53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan 1 , Raghu Raj Singh Rousha2 and A. N. Santhanam3. We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.”

The Court held that Additional Session Judge had fallen in error in not giving an opportunity of hearing to the accused petitioners and remanding the matter back to the concerned ACJM without giving opportunity of hearing the petitioner. The Court quashed and set aside the order and remanded the matter back to Additional Session Judge to give opportunity of hearing the petitioners before deciding the revision petition filed by the complainant.[Moti Lal Nayak v. State of Rajasthan, 2020 SCC OnLine Raj 2152, decided on 02-01-2020]

Suchita Shukla, Editorial Assistant has reported this brief.

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