Rameshan P.O. and Ors. Vs. Rakesh Kumar Yadav and Anr.
EmailAppeal: Criminal Appeal No. 760 of 2009
[Arising out of SLP (Crl.) No. 1482 of 2007]
[From the Judgement and Order dated 15.12.2007 of the Hon’ble High Court of Judicature at Allahabad in Crl. Revision No. 435 of 2007.]
[Arising out of SLP (Crl.) No. 1482 of 2007]
[From the Judgement and Order dated 15.12.2007 of the Hon’ble High Court of Judicature at Allahabad in Crl. Revision No. 435 of 2007.]
Petitioner: Rameshan P.O. and Ors.
Respondent: Rakesh Kumar Yadav and Anr.
Apeal: Criminal Appeal No. 760 of 2009
[Arising out of SLP (Crl.) No. 1482 of 2007]
[From the Judgement and Order dated 15.12.2007 of the Hon’ble High Court of Judicature at Allahabad in Crl. Revision No. 435 of 2007.]
[Arising out of SLP (Crl.) No. 1482 of 2007]
[From the Judgement and Order dated 15.12.2007 of the Hon’ble High Court of Judicature at Allahabad in Crl. Revision No. 435 of 2007.]
Judges: Dr. Arijit Pasayat & Asok Kumar Ganguly, JJ.
Date of Judgment: Apr 17, 2009
Appearances:
Appearances
Mr. KTS Tulsi, Senior Advocate, Mr. Bharat Sangal, Ms. Mrinalini Oinam, Ms. Varnika Tomar, Advocates with him for the Appellants.
Mr. Arup Banerjee, Mr. R. Shekhar, Mr. R.K. Dey, Mr. R.K. Srivastava, Advocates for the Respondents.
Mr. KTS Tulsi, Senior Advocate, Mr. Bharat Sangal, Ms. Mrinalini Oinam, Ms. Varnika Tomar, Advocates with him for the Appellants.
Mr. Arup Banerjee, Mr. R. Shekhar, Mr. R.K. Dey, Mr. R.K. Srivastava, Advocates for the Respondents.
Head Note:
CRIMINAL LAWS
Criminal Procedure Code, 1973
Section 397/401 – Application under Section 397/401 challenging order of Session Judge – Allowed without giving notice to appellants – Revision filed. Held, if the High Court was of the view that the order of Sessions Judge was indefensible it ought to have granted an opportunity to the appellants to present their case. By disposing of the application without issuance of notice to appellants, they are prejudiced. Hence impugned order cannot be sustained.
Criminal Procedure Code, 1973
Section 397/401 – Application under Section 397/401 challenging order of Session Judge – Allowed without giving notice to appellants – Revision filed. Held, if the High Court was of the view that the order of Sessions Judge was indefensible it ought to have granted an opportunity to the appellants to present their case. By disposing of the application without issuance of notice to appellants, they are prejudiced. Hence impugned order cannot be sustained.
JUDGEMENT:
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court who allowed the application filed in terms of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short the `Code’) assailing the order passed by learned Sessions Judge, Jaunpur. The primary stand taken in this appeal is that the revision petition was allowed and disposed of even without issuance of notice to the present appellants.
3. Background facts in a nutshell are as follows:
The appellants filed for revision before the learned Sessions Judge, Jaunpur questioning correctness of the order passed under Section 156(3) of the Code. Learned Single Judge held that no person who is accused of a cognizable offence can file for revision before registration of FIR against him since the order under Section 156(3) of Code is an administrative order at a pre cognizance stage under Chapter XII of Code.
4. It is submitted that the revision petition had been filed by the present respondents. If the High Court was of the view that the order of learned Sessions Judge was indefensible it ought to have granted an opportunity to the present appellants to have their say in the matter. The learned Single Judge closed the issues conclusively by holding that the revision petition was not maintainable. If that was the view the learned Single Judge ought to have given a notice to the present appellants to show that the revision was maintainable. By disposing of the application without issuance of notice to the present appellants, they are prejudiced and the impugned order cannot be sustained in law.
5. Learned counsel for the respondents on the other hand submitted that at the cognizance stage no notice need be given to the accused. Since the order was passed in favour of the present appellants, same ought not to have been set aside without issuance of notice to them.
6. In the circumstances, we set aside the impugned order and remit the matter to the High Court. Let the parties appear without further notice on 22.4.2009. We make it clear that we have expressed no opinion on the merits of the case. Until the disposal of the matter by the High Court the proceedings before the trial Court shall remain stayed.
7. The appeal is disposed of accordingly.
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1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court who allowed the application filed in terms of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short the `Code’) assailing the order passed by learned Sessions Judge, Jaunpur. The primary stand taken in this appeal is that the revision petition was allowed and disposed of even without issuance of notice to the present appellants.
3. Background facts in a nutshell are as follows:
The appellants filed for revision before the learned Sessions Judge, Jaunpur questioning correctness of the order passed under Section 156(3) of the Code. Learned Single Judge held that no person who is accused of a cognizable offence can file for revision before registration of FIR against him since the order under Section 156(3) of Code is an administrative order at a pre cognizance stage under Chapter XII of Code.
4. It is submitted that the revision petition had been filed by the present respondents. If the High Court was of the view that the order of learned Sessions Judge was indefensible it ought to have granted an opportunity to the present appellants to have their say in the matter. The learned Single Judge closed the issues conclusively by holding that the revision petition was not maintainable. If that was the view the learned Single Judge ought to have given a notice to the present appellants to show that the revision was maintainable. By disposing of the application without issuance of notice to the present appellants, they are prejudiced and the impugned order cannot be sustained in law.
5. Learned counsel for the respondents on the other hand submitted that at the cognizance stage no notice need be given to the accused. Since the order was passed in favour of the present appellants, same ought not to have been set aside without issuance of notice to them.
6. In the circumstances, we set aside the impugned order and remit the matter to the High Court. Let the parties appear without further notice on 22.4.2009. We make it clear that we have expressed no opinion on the merits of the case. Until the disposal of the matter by the High Court the proceedings before the trial Court shall remain stayed.
7. The appeal is disposed of accordingly.
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