Gram Sabha Lakhanpur Panti vs Ram Dev and Another

Kundan Singh, J.—This revision has been preferred against the order dated 18-8-92, passed by the II Additional District and sessions Judge, Allahabad, in criminal revision no 2 of 1992 whereby he has rejected the application 11 Kha moved by the Gaon Sabha, the applicant, for its impleadment as a party in the revision aforesaid.

In short, the facts of the case are that the proceedings u/s 133, Code of Criminal Procedure were instituted at the instance of the applicant for removal of unauthorised constructions raised by opposite party No. 1 Ram Deo on the public path and the land belonging to the Goan Sabha. These proceedings under sect on 133 Code of Criminal Procedure terminated against opposite party No. 1, who feeling aggrieved by the order of the Sub-Divisional Magistrate, Meja, Allahabad, filed Criminal Revision No 2 of 1922 in the Court of Sessions Judge, Allahabad, which came up for hearing before the III Additional District and Sessions Judge, AllahabadIn that revision Ram Deo did not implead the Gaon Sabha as a party though the proceedings u/s 133 Code of Criminal Procedure were initiated at its instance and accordingly the Gaon Sabha moved an application for its impleadment as a party in that revision. The learned III Additional Sessions Judge rejected that application (11 Kha) on the ground that Gaon Sabha is not a necessary party to the revision nor the Statute require the complainant to be impleaded as a patty in the revision before the Sessions Court.

Learned Counsel for the applicant strenuously argued that the applicant, which is a Gaon Sabha, has an ''independent capacity to sue or to be sued In the court of law. It can own, purchase or sell its properly. It exercises its power though Pradhan/Chairman. The proceedings u/s 133 CrC were initiated on the application of the applicant and the applicant posecuted opposite party No. 1 and succeeded in establishing its cases before the Sub-Divisional Magistrate and got the order of removal of unauthorised constructions passed by the trial Magistrate, therefore, in the revision before the learned III Additional District and Sessions Judge it bas got a right to defend itself through a counsel of its choice and not through the D.G,C. (Criminal), who can represent only the State of U.P. and not a private party. In case the order passed by the Magistrate is reversed by the revisional court, the applicant will be prejudiced. He farther argued that the applicant being an aggrieved party could file the revision In the High Court against the order of the lower revisional Court and the present revision is fully competent In support of the above submissions learned Counsel for the applicant invited attention of tae Court to the provisions of Section 385 of the Code of Criminal Procedure and on its strength argued that if the appeal Is filed from a Judgment of conviction in a cafe instituted on the complaint, the complainant is required to be afforded an opportunity of being heard He also contended that once the accused is convicted and sentenced for an offence by the trial court, in appeal the complainant''s interest is looked after by the State but even then the Statutes require an opportunity of hearing to the complainant in the case instituted on the complaint. Thus, according to the learned Counsel for the applicant, Gaon Sabha was not only proper but necessary party in the revision before the lower revisional court and the learned I Additional District & Sessions Judge has gravely erred in rejecting its application for impleadment as a party in the revision before him.

The learned Counsel for the opposite party in counter argued that the applicant is not necessary party at all nor it has a statutory right to be impleaded. He further contended that the Gaon Sabha has no authority to file the present revision and in support of his argument he relied upon a decision Gram Samaj v. Bhondi. 1965 ALJ 469. In that case the petition was hied by a private person who was neither a penal lawyer for the Gram Samaj nor had legal authority from the competent authority to represent the Gaon Sabha. Here in the present case the learned Counsel for the applicant has drawn the attention of the Court to the letter dated 8-3-92 of the Additional District Magistrate. Allahabad, whereby he has authorised Sarva Shri Viresh Mishra and Narvada Mishra, Advocates, to prosecute the case on behalf of the Gaon Sabha both in the courts below as well as in the High Court. Thus the contention of the learned Counsel for the opposite party 1 that Sri Viresh Mishra bad no authority to file the present revision fails.

The learned Counsel for the opposite party relied upon a case law reported in 1980 AL 554 in support of his above contention bat the facts of that case are different to the case in hand. In that case after the revision has been decided on merit the complainant moved an application for recalling the final order passed by the High Court and this Court held that the complainant has no legal right to get the whole case reopened.

The law provides that the complainant/aggrieved party can institute the proceedings and prosecute any person. After conviction is recorded, the complainant/aggrieved party is given an opportunity of hearing u/s 385(1) Code of Criminal Procedure. If the Court records a verdict of acquittal, the complainant/aggrieved party is competent to file an appeal against the order of acquittal u/s 378 of the Code of Criminal Procedure. Even in a police challan case the complainant is competent to file a revision against the order of acquittal before the appropriate court u/s 397/401 Code of Criminal Procedure. This Court has been accommodating the complainant party to hear in bail applications, criminal revisions, criminal appeals and even in the writ petition of criminal nature if the complainant/aggrieved party is interested, though he has no legal right therefore. The complainant/aggrieved party may or may not have legal right of being heard but the role of prudence and natural justice require that the aggrieved party must be afforded an opportunity to have its say personally or through a counsel of his choice, if be so desires. Thus, in my opinion, the court below was not justified in not affording an opportunity of hearing to the applicant after imploding it as a party to the revision. Incidentally, it may also be mentioned here that the move on behalf of the Goan Sabba for impediments as a party in the revision before the Additional Sessions Judge has not been opposed by the D.G.C. (Criminal) or the State When the proceedings u/s 133 Code of Criminal Procedure were initiated at the instance of the Groan Sabha and it was a party before the Magistrate, in all fairness the opposite party No. 2 should have impleaded as a party in the revision before the Sessions Judge.

7 Accordingly, the revision succeeds and is hereby allowed. The order dated 18-8-92 passed by the III Additional Sessions Judge, Allahabad in Criminal Revision No. 2 of 1992. is set aside and the court below is directed to hear the applicant as well in the revision after impleading it as a party.