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2024:CGHC:50422
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
(Judgment Reserved on 25/09/2024) (Judgment Delivered on 20/12/2024) CRMP No. 2463 of 2024
1 - Sanjay Bandhe S/o Late Jawahar Lal Bandhe Aged About 31 Years
2 - Vikrant Kumar Bandhe S/o Late Narayan Lal Aged About 31 Years
3 - Vijendra Kumar Bandhe @ Vikendra S/o Late Narayan Lal Aged About 31 Years (C.G.)
4 - Jitin Kumar Bandhe S/o Late Narayan Lal Aged About 31 Years
5 - Sandeep Bandhe S/o Late Jawahar Lal Bandhe Aged About 38 Years
6 - Pawan Bandhe S/o Late Jawahar Lal Bandhe Aged About 36 Years
7 - Pradeep Bandhe S/o Late Jawahar Lal Bandhe Aged About 25 Years
8 - Pratap Bandhe S/o Late Jawahar Lal Bandhe Aged About 21 Years
9 - Smt. Sarita Bai W/o Late Jawaharlal Bandhe Aged About 52 Years
10 - Smt. Sushila Bai Bandhe W/o Late Narayan Lal Aged About 59 Years
11 - Bihari Lal Bandhe S/o Late Bhaulal Aged About 84 Years
12 - Kamal Narayan S/o Late Patru Aged About 61 Years
13 - N. Dipti D/o Late Narayan Lal Bandhe Aged About 32 Years
14 - Smt. Seema Bandhe W/o Rahis Bandhe Aged About 35 Years
15 - Ravi Bandhe S/o Sukhen Bandhe Aged About 48 Years
ASHUTOSH
MISHRA
Digitally signed by
ASHUTOSH MISHRA
Date: 2024.12.20 18:36:25 +0530
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Above all are R/o Village Baroda, P.S. Mana Camp, Tahsil Mandir Hasaud, District Raipur, C.G.
16 - Smt. Mamta Jangde W/o Ramesh Kumar Jangde Aged About 33 Years R/o House No. 2, Near Purani Basti, Ravishankar University, Raipur (C.G.)
17 - Seeta @ Chhita W/o Amar Lal Aged About 53 Years R/o Village Sundrawan, Tahsil And District Baloda Bazar-Bhatapara (C.G.)
18 - Rajgopal Sonwani S/o Punit Ram Sonwani Aged About 59 Years R/o Village Dandesara, Tahsil Kurud, District Dhamtari (C.G.)
19 - Nikita Bandhe D/o Late Jawahar Lal Bandhe Aged About 20 Years R/o Village Pacheda, Naya Raipur, District Raipur (C.G.)
20 - Manju Mahle W/o Bhishm Mahle Aged About 30 Years R/o Village Aamner, Tahsil Abhanpur, District Raipur (C.G.)
21 - Rakhi Deshlahre W/o Dindayal Deshlahre Aged About 44 Years R/o Dallirajharam, Tahsil Dallirajhara, District Balod (C.G.)
22 - Neha Rani Gendre W/o Leela Singh Gendre Aged About 38 Years R/o Bemetara, P.S. Bemetara, District Bemetara (C.G.),.. (Proper Address Of The Petitioners)
... Petitioner(s) versus
1 - Ashwani Bandhe S/o Late Mohanlal Bandhe Aged About 48 Years R/o Village Baroda, P.S. Mana Camp, Tahsil Arang, District Raipur (C.G.)
2- Vikas Agrawal R/o Raipur (C.G.)
3 - Madhu Mishra W/o Rakesh Mishra R/o T/9, Jal Vihar Colony, Telibandha, Raipur (C.G.)
4 - Lambhu Ram Bandhe S/o Lt. Bhaulal Aged About 67 Years
5 - Rameshwar Bandhe S/o Late Patru Aged About 41 Years
6 - Smt. Saraswati Banjare W/o Govind Banjare Aged About 47 Years
7 - Heera Das Patel Aged About 48 Years
8 - Tularam Bandhe S/o Jiyolal Bandhe Aged About 75 Years
9 - Samdas Ratre S/o Late Pooran Ratre Aged About 65 Years
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10 - Shukla Bandhe S/o Pilariram Bandhe Aged About 50 Years
11 - Bhagwat Bandhe S/o Anup Bandhe (Since Died)
12 - Prakash Das S/o Late Meghva Ram Banjare (Since Died)
13 - Smt. Dhan Bai Wd/o Late Patru Bandhe (Since Died) Respondent No.11 to 13 were R/o Village Barouda, P.S. Mana Camp, Tahsil Aarang, District Raipur (C.G.)
(Respondent No. 2 To 13 Are Non Applicant Before Lower Court) (Proper Address Of The Respondents)
... Respondent(s)
For Petitioners : Mr. Pravin Kumar Tulsyan, Advocate For Respondent No.1 : Mr. Ravindra Sharma, Advocate
(Hon'ble Shri Arvind Kumar Verma, Judge) C A V Order
1. The present petition has been filed calling in question the order dated 11/07/2024 passed by the 4thAdditional Sessions Judge, District Raipur, C.G. in Criminal Revision No.294/2023 whereby the revision filed by the respondents has been allowed arising out of order dated 12.06.2023 passed by JMFC, Raipur, C.G. in Complaint Case
No.unregistered/2023.
2. By way of the present petition, the petitioners have sought for the following prayer:-
It is therefore prayed that the Hon'ble Court may be pleased to set aside the impugned order dated
11.07.2024 (Annexure P-1) passed by the
learned 4thAdditional Sessions Judge, Raipur,
C.G. in Criminal revision no.294/2023 and
restore the order passed by the JMFC Raipur, in
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the interest of justice.
3. The brief facts of this case are that Respondent No.1 has filed an application before the learned JMFC under Section 156 (3) of the Cr.P.C. for registration of F.I.R. against the petitioners and Respondents No.4 to 13 under Section 294, 506-B, 403, 420, 423, 465, 467, 468, 471, 474, 511 of the IPC stating therein that the respondent has ancestral property i.e. land bearing Khasra No.139, 140, 160, 171, 200, 256, 266, 276, 286, 321, 382, 757, 775, 896, 200/3, 201/2, 208/2, 295/2 admeasuring total 34.32 acres and the petitioners and respondent No.4 to 13 are trying to fraudulently get their name mutated in the revenue records of the aforementioned land so that they can sell the land to Respondent No.2 with the help of Respondent No.3 as they have already executed a sale/purchase agreement between them and has also received the advance payment. On the application filed by Respondent No.1, the JMFC, Raipur initiated proceedings and called the report from the concerned police station after and thereafter on receipt of the report passed the final order dated 12/06/2023 whereby rejected the application filed by Respondent No.1 under Section 156 (3) Cr.P.C.
4. Being aggrieved by the order passed by the JMFC dated 12/06/2023, the Respondent has preferred the criminal revision before the revisional Court and the Revisional Court has issued the notice to the petitioners time to time but the notices issued to them by the revisional Court could not be served upon all the non-applicants therein and despite the non
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service of notice to all the petitioners, the revisional Court heard the matter finally and upon hearing the parties passed the order dated 11/07/2024 whereby set aside the order dated 12/06/2023 and remitted back the matter to the concerned JMFC to proceed in the matter in accordance with Chapter XV of the Cr.P.C. The petitioners being aggrieved by the said order have filed the instant petition.
5. Learned counsel for the petitioners would submit that the revisional Court has committed an error in understanding the facts in is true perspective because till date the land in question is registered in the name of Government Institution and/or in the name of other persons but not in the name of the petitioners. He would next contend that the said lands were acquired by the Government in the year 1942 and in the year 2004 petitioners along with respondent No.1 and 4 to 13 had filed a writ petition before the High Court for issuance of direction to return back the acquired land to the petitioners and Respondents No.1 & 4 to 13 in the aforesaid writ petition though the direction was issued to decide the grievance of the petitioners but such proceeding is still pending before the revenue authority. He would further contend that the revisional Court has passed the order impugned against the dead persons, who have died even prior to filing of the case, therefore, it clearly shows that the Court has casually passed the order. He placed his reliance in the law laid down by the Supreme Court in the matter of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbahi Patel
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and Ors. 2012 AIR SCW 5314 and the law laid down by this Court in
Shahid Ali Vs. State of C.G. {ILR 2021 Chhattisgarh 600} and Lalit Kumar Sahu Vs. State of C.G. {ILR 2020 Chhattisgarh 2243} and would therefore pray that the order passed by the revisional Court may kindly be interfered and this petition may be allowed.
6. Per contra, learned counsel for the Respondent No.1 would submit that till date no adverse order has been passed against the petitioners and the petitioners are the prospective accused. He would next contend that the revisional Court has remitted the matter back only to decide the application as per the provisions prescribed under the law, therefore, no interference is called for by this Court in the orders passed by the revisional Court.
7. I have heard learned counsel for the parties and perused the documents.
8. Perusal of the order dated 11/07/2024 passed by the Sessions Judge would show that he has observed that once the Magistrate takes cognizance in any matter under Section 156 (3) Cr.P.C. then again he cannot pass any order in the same matter. The learned Sessions Judge has also referred the law laid down in W.P.Cr. No.125 of 2012 dated 07/02/2013 wherein this Court has held thus in para 15:-
15. As per copies of the order sheets, the Magistrate has directed for investigation not under Section 156
(3) of the Code, after receiving report he has
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proceeded for recording evidence before registration and thereafter, he has passed order under Section 156
(3) of the Code. These order sheets reveal that the Magistrate has taken cognizance of the offence on 17- 11-2008 and proceeded for enquiry under Chapter XV of the Code. Therefore, he was not competent to pass any order under Section 154 (3) of the Code. By passing such order and proceeding under Section 156
(3) of the Code vide order impugned, the Magistrate has committed illegality requiting interference in exercise of supervisory jurisdiction.
9. The Sessions Judge also held that in view of the well settled principle of law laid down in the above case it is clear that once the cognizance has been taken by any Magistrate with respect to any offence under Chapter XV of the Cr.P.C., 1973 then as per Chapter XII he is not competent to take cognizance with respect to the complaint case filed under Section 156 (3) of the Cr.P.C.
10. The Court further held that in case where an application/complaint is presented before a Magistrate under Section 156 (3) Cr.P.C., 1973 he may on the basis of the said complaint and the documents attached with it, if deems fit, direct the concerned police station to conduct an investigation. If he deems fit, he may summon a report from the concerned police station regarding the status report of the action taken
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in connection with the said complaint only in connection with the said complaint made by the applicant, but if he summons the report after investigation, then he cannot go back and pass an order under Section 156 (3) Cr.P.C. In said circumstances, he will have to take action as per the provision given in Chapter XV of the Cr.P.C. and hence set aside the order dated 12/06/2023 and remanded the matter back to the JMFC.
11. The Supreme Court in the matter of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbahi Patel and Ors. 2012 AIR SCW 5314 has held thus in para 48 & 54 which are reproduced hereinbelow:-
48. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application
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preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. Three expressions, "prejudice", "other person" and "in his own defence" in Section 401(2) are significant for understanding their true scope, ambit and width. Black's Law Dictionary [Eighth Edition) explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [Tenth Edition, Revised) defines
"prejudice" as under:
"1. Preconceived opinion that is not based on reason or actual experience. > unjust behaviour formed on such a basis.
2. harm or injury that results or may result from some action or judgment. v.1 give rise to prejudice in (someone); make biased. 2. cause harm to (a state of affairs)."
"54. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is
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termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed offencehave been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203 although it is at preliminary stage nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get right of hearing before revisional court although such order was passed without their participation. The right given to "accused" or "the other person" under Section 401(2) of being heard before the revisional court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage".
12. It is pertinent to mention here that the Magistrate at this juncture has not taken any cognizance against the petitioners and they are only proposed
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accused and there is no provision in the Cr.P.C. that before taking cognizance, to hear the proposed accused. But after enforcement of the new act i.e. Bharatiya Nagarik Suraksha Sanhita, 2023 in the year 2023 wherein Chapter XVI deals with examination of complainant and Section 223 (1) of the BNSS, 2023 provides as under:-
223. (1) A Magistrate having jurisdiction while taking cognizance of an offence oath the complainant and present, if any, and the substance of such examination shall be reduced to prung and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section
212:
xxx xxx xxx xxx xxx xxx xxx xxx xxx
13. Therefore, reading of the proviso clause to the above provisions, it would show that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. Therefore, the Magistrate shall proceed further and pass the order
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keeping in the mind the provisions of Section 223 (1) of the BNSS,
2023.
14. Accordingly, the instant petition stands disposed of with the aforesaid direction and observation.
SD/- SD/-
(Arvind Kumar Verma)
Judge
Ashu