Surendra Singh - (1.) APPLICANT by filing this application under Section 482, Cr. P.C. has sought to quash the order dated 15.4.2009, passed by Sessions Judge, Banda in Criminal Revision No. 33/2009 and impugned order dated 27.1.2009 passed by C.J.M., Banda under Section 156 (3), Cr. P.C.
(2.) BRIEFLY put, the facts may be summarized as follows : The opposite party No. 2, V. B. Bajpai moved an application under Section 156 (3), Cr. P.C., dated 14.11.2008 before the C.J.M., Banda for the direction to be issued to the police of P. S. Kotwali Nagar, District Banda to investigate the case against the applicant. The C.J.M., Banda called for the report of the police of P. S. Kotwali Nagar vide order dated 14.11.2008 with regard to the information whether the F.I.R. has already been registered or not in respect of the incident in question. The police of P. S. Kotwali Nagar submitted the report dated 24.11.2008 disclosing the facts that till the date of submission of report no F.I.R. was registered. Suffice it to say that by reason of an order dated 27.1.2009 learned C.J.M., Banda before whom the complaint under Section 156 (3), Cr. P.C. was filed, refused to direct the investigation in the matter through police concerned in terms of Section 156 (3) of the Code, however, he adopted the second mode in terms of Chapter XV of the Code and registered the complaint application as a complaint case. On this premise the respondent No. 2 (complainant) was asked to lead pre-summoning evidence. Aggrieved by and dissatisfied therewith, the opposite party No. 2 (complainant) filed a revision application before the Sessions Judge, Banda impleading the State only as a party. By reason of the impugned order the revisional court after hearing the revisionist (opposite party N and the counsel appearing for the State allowed the revision and quashed the impugned order dated 27.1.2009 under challenge by order dated 15.4.2009 with the direction to the Magistrate concerned to examine the matter afresh in the light of the observation made in the order. Hence, the proposed accused/applicant has preferred this application under Section 482, Cr. P.C. before this Court.
(3.) THE sole contention of the learned counsel appearing on behalf of the applicant is that the learned Magistrate has adopted the mode in terms of Chapter XV of the Code and asked the complainant to lead pre-summoning evidence which tantamount to have taken cognizance of the offence. If it may be so, the revision application could not have been decided without noticing to the accused-applicant. Had an opportunity of hearing been given to the applicant, he could have shown that no revision application was maintainable and/or even otherwise no case has been made out for interference with the impugned order of the learned Magistrate. Learned counsel has relied upon the view expressed by Hon'ble Apex Court in Raghuraj Singh Rousha v. Shivam Sundaram Promoters Private Limited and another, 2009 (I) SCC (Cri) 801 : 2009 (1) ACR 778 (SC). He has further submitted that keeping in view of the Apex Court's observation, the revisional order cannot sustain and is liable to be quashed. On the other hand Sri B. K. Tripathi, learned counsel appearing on behalf of respondent No. 2 has contended that the accused-applicant had no right to be heard as the said criminal revision application was filed at pre-cognizance stage. It was further emphasised that the applicant was not prejudiced in any manner as at the pre-summoning stage he was not an accused, therefore, he was not entitled for the opportunity of hearing at that stage. Under the given circumstances, the impugned order does not suffer from any illegality or flagrant miscarriage of justice.;