High Court of Punjab and HaryanaCRM-M/21561/2022allowed

Jaswinder Singh And Others v. Sukhwinder Singh Bhatia And Others

2022-09-07Mr. Justice Pankaj Jain11 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of decision : September 07 , 2022 Jaswinder Singh and others ...... Petitioners

Versus

Sukhwinder Singh Bhatia and others ...... Respondents CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN *** Present :- ! " # $% ! # & ' *** PANKAJ JAIN, J.

This is a petition filed under Section 482 Cr.P.C seeking quashing of the order dated 02.05.2022 passed by the revisional court whereby order passed by the learned Additional Chief Judicial Magistrate,

Ludhiana under Section 156 (3) Cr.P.C.has been set aside. The present lis was initiated by respondent No.1-complainant by filing a complaint against the petitioners with a prayer under Section 156

(3) seeking directions to the police authorities to register FIR as per the dictum of law laid down by the Hon'ble Supreme Court in Lalita Kumar Vs. State of UP and others 2014 (2) SCC 1. The learned Magistrate dismissed the prayer made under Section 156 (3) Cr.P.C vide order dated 24.02.2022. The operative part thereof reads as under:- "

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9 The said order was impugned by the complainant before the revisional court. The revisional court vide impugned order dated 02.05.2022 has set aside the order passed by the ACJM, Ludhiana (ibid) and has remanded the complaint back to the learned trial Court with a direction to hear the revision petitioner and to decide the matter afresh as per law. Learned counsel for the petitioners while attacking the

impugned order submits that the revision was not maintainable as the order dated 24.02.2022 is an interlocutory order. In support of his contention he has relied upon the judgment passed by the Hon'ble Apex Court in Girish Kumar Suneja Vs. C.B.I. 2017 (3) RCR 665. While referring to the impugned order he submits that the service of the petitioners was dispensed with and infact the orders have been passed without hearing them. It has been submitted that no order can be passed by the revisional court without hearing the accused. Heavy reliance has been placed upon the judgment passed by the Hon'ble Supreme Court in Priyanka Srivastava Vs. State of U.P and others 2015 (6) SCC 287.

Learned counsel for the petitioners further submits that the complaint itself was not maintainable having not being filed in a proper format. He refers to an affidavit filed in support of the complaint to impress upon his argument that infact the complaint was not even accompanied by proper affidavit, therefore the trial court rightly dismissed the complaint. Per contra, learned counsel for the respondents submits that the argument with respect to the order dated 24.02.2022 being an interlocutory order is misconceived. By the impugned order dated 24.02.2022 the learned trial court has infact rejected prayer under Section 156 (3) Cr.P.C. therefore, it cannot be said to be an interlocutory order. He further submits that the revisional court was right in dispensing with the service on the petitioners as it is not a case wherein the complaint has been dismissed under Section 203 Cr.P.C. He further submits that hearing is required to be afforded to the accused only when the order is passed under Section 203 Cr.P.C.

I have heard learned counsel for the parties and have gone through the record of the case.

The question as to what is the interlocutory order has been answered by the Apex Court in Amarnath and others Vs. State of Haryana and others AIR 1977 (SC) 215 wherein it has been held that:- "6.

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The specific question as to whether the dismissal of a complaint by the Magistrate under Section 156 (3) Cr.P.C amounts to an interlocutory order or not cropped up before the Delhi High Court in the case of Nishu Wadhwa Vs. Siddharth Wadhwa and another W.P. (CRL.) M.A.No.6591/2016. The Delhi High Court held that:

10. In Raghu Raj Singh Rosh v. Shivam Sundram Promotors Pvt. Ltd. & Anr. 2009(1) RCR (Criminal) 531 : 2009(1) Recent Apex Judgments (R.A.J.) 191 : (2009) 2 SCC 363 while dealing with the right of an accused to be heard in a criminal revision petition, it was observed that indisputably if the learned Magistrate had taken cognizance of the offence and merely issuance of summons upon the accused had been postponed, the accused was entitled to be heard before the High Court in a criminal revision petition filed on behalf of the complainant. It was further held that since the Magistrate refused to exercise his jurisdiction under Section 156(3) Cr.P.C.

and came to the conclusion that the dispute was a private dispute in relation to an immovable property, Police investigation was not necessary and directed examination of the complainant, having taken cognizance of the offence even though the accused had not been summoned, he had a right to be heard in the revision petition. Thus the Supreme Court recognised the right of an accused to be heard in a revision petition once cognizance of the offence was taken even though the accused had not been summoned.

11. The Division Bench of Bombay High Court in the decision reported as 2015 SCC OnLine Bom 5197 : 2016 ALLMR (Cri) 985 Avinash and Ors. v. The State of Maharashtra and Ors. held that the order passed directing police to investigate under Section 156(3) of the Code is not an interlocutory order, but in the nature of a final order terminating the proceedings under Section 156 (3) of the Code

which would be revisable under the revisional powers of the Sessions Court or the High Court.

12. It is trite law that once directions are passed by the learned Magistrate under Section 156(3) Cr.P.C. directing registration of FIR he becomes functus-officio. [See (2016) SCC online Del 5490 M/s. Gabrani Infrastructure Pvt. Ltd. v. M/s. Unitech Hi-Tech Developers Limited & Ors. and 2008(4) GLR 3253 (Guj.) Randhirsinh Dipsinh Parmar v. State of Gujarat & Ors.]. Thus, disposing of an application under Section 156(3) Cr.P.C. amounts to adjudication of a valuable right whether in favour of accused or the complainant.

13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognisable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156

(3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."

Even in the judgment relied upon by the petitioners in Girish Kumar Sunjeja's case (supra) the Hon'ble Apex Court held that, in

deciding whether an order challenged is an interlocutory or not as per Section 397 (2) Cr.P.C. the sole test is not whether such order was passed during interim stage but the test is as to whether it amounts to adjudicating upon the rights of the parties finally.

Since in the present case, the Magistrate has dismissed the application filed by the petitioners under Section 156 (3). Thus, it cannot be said that it is an interlocutory order and thus the revision petition will be barred under Section 397 (2) Cr.P.C.

Coming on to the second limb of the argument raised by the learned counsel for the petitioners, it was a revision petition filed under Section 397 Cr.P.C. The revisional court was exercising powers under Section 399 Cr.P.C. Sub Section (2) of Section 399 Cr.P.C mandates that the provisions of sub Section (2), (3), (4) and (5) of Section 401 Cr.P.C shall apply to the proceedings commenced before the Sessions Judge by way of revision under Section 399 (1) Cr.P.C. Section 401 (2) Cr.P.C provides for that:

"No order under this section shall be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence."

The precise issue as to whether the revisional court while exercising the revisional jurisdiction over the orders passed under Section 156 Cr.P.C. is required to hear the accused or not arose before the Apex Court in the case of Priyanka Srivastava's case (supra) wherein it was held

that:

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) " * + Priyanka Srivastava's case (supra) even though the revisional court was hearing revision against the order passed under Section 156(3) it cannot be denied that it was exercising power under Section 399 Cr.P.C. Dehors the stage of the complaint, the revisional court was bound to hear the petitioners in view of the mandate of Section 401 Cr.P.C. read with Section 399 Cr.P.C. , * ** * - ./ (')+#+

, /'/$'/'' * - , *0 1 ( PANKAJ JAIN ) JUDGE September 07 , 2022 archana Whether speaking/reasoned Yes Whether Reportable :

Yes