REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1577 OF 2012
(Arising out of SLP (Crl.) No. 446 of 2007)
Manharibhai Muljibhai Kakadia & Anr. …. Appellants
Versus
Shaileshbhai Mohanbhai Patel & Ors. ….Respondents
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The sole question for consideration is, whether a suspect is
entitled to hearing by the revisional court in a revision preferred by the
complainant challenging an order of the Magistrate dismissing the
complaint under Section 203 of the Criminal Procedure Code, 1973 (for short
‘Code’).
3. It is not necessary to set out the facts in detail. Suffice it
to say that Shaileshbhai Mohanbhai Patel, respondent no. 1, filed a
criminal complaint on 15.5.2004 in the Court of Chief Judicial Magistrate,
Surat (for short ‘CJM’) against Manharibhai Muljibhai Kakadia and Paresh
Lavjibhai Patel, appellants, alleging that they had pre-planned a
conspiracy; created forged documents bearing signatures of the complainant,
his father and uncle, two sons of his uncle and his elder brother and have
used the said documents as true and genuine by producing the same before
the District Registrar, Cooperative Society, Nanpura, and by making false
representation obtained registration of Indoregency Cooperative Housing
Society Limited and by doing so the accused (appellants) have caused
financial loss and physical and mental agony to the complainant and his
family members and have deceived the complainant and his family members by
obtaining huge financial advantage by taking possession of the
complainant’s property. It was, thus, alleged that the appellants have
committed offences punishable under Sections 420, 467, 468, 471 and 120-B,
IPC.
4. The CJM in exercise of his power under Section 202 of the Code
by his order dated 18.6.2004 directed the enquiry to be made by the Police
Inspector, Umra Police Station, into the allegations made in the complaint
and submit his report within thirty days therefrom.
5. The Investigating Officer investigated into the matter and
submitted ‘C’ Summary Report. In the opinion of the Investigating Officer,
the disputes between the parties were of civil nature and no offence was
made out.
6. The CJM on 16.4.2005 accepted the ‘C’ Summary Report submitted
by the Investigating Officer. That order has been challenged by the
Complainant in a criminal revision application filed under Section 397 read
with Section 401 of the Code in the Gujarat High Court.
7. The appellants having come to know of the above criminal
revision application made an application for joining them as party
respondents so that they can be heard in the matter.
8. On 5.8.2005, the Single Judge of the Gujarat High Court
dismissed the application made by the appellants. It is from this order
that present appeal has arisen.
9. We have heard Mr. Shyam Divan, learned senior counsel for the
appellants and Ms. Meenakshi Arora, learned counsel for respondent no. 1.
10. Mr. Shyam Divan, learned senior counsel for the appellants
argued that the plain language of Section 401(2) of the Code entitles the
appellants to be heard in the criminal revision application filed by the
respondent no. 1 challenging the order of the CJM. According to learned
senior counsel, appellants have a right to be heard in the revision
application filed by the complainant as no order could be made to the
prejudice of the accused or the other person unless he has had an
opportunity of being heard under Section 401(2) of the Code. It was
argued on behalf of the appellants that the result of acceptance of the
‘C’ Summary Report is that criminal proceedings launched by the complainant
have come to an end and if the revision application preferred by the
complainant is accepted, that would have the effect of revival of the
complaint and setting the criminal process back in motion which would be
definitely prejudicial to the appellants and before any such prejudicial
order is passed, the appellants ought to be heard. In support of the above
contentions, learned senior counsel relied upon decisions of this Court in
P. Sundarrajan and others v. R. Vidhya Sekar[1], Raghu Raj Singh Rousha v.
Shivam Sundaram Promoters Private Limited and another[2] and A. N.
Santhanam v. K. Elangovan[3].
11. Mr. Shyam Divan, learned senior counsel would also argue that
expression, “in his own defence” in Section 401 (2) is a comprehensive
expression which also means ‘in defence of the order’ under challenge in
revisional jurisdiction. Learned senior counsel submitted that “prejudice”
may cover wide range of situations and must be considered in wider sense.
Section 401 does not make any distinction between pre-process stage and
post-process stage. Sub-section (2) of Section 401 is applicable regardless
and whether or not process has been issued under Section 204 of the Code.
12. It was also submitted on behalf of the appellants that
cognizance had been taken by the CJM. Cognizance is not equivalent to
issuance of process; it is taken prior to issuance of process. Cognizance
is taken at the initial stage when the Magistrate applies his judicial mind
to the facts mentioned in the complaint or to the police report or upon
information received from any other person that an offence has been
committed. In this regard, reliance was placed on Jamuna Singh and others
v. Bhadai Sah[4] , Kishun Singh and others v. State of Bihar[5] and State
of Karnataka and another v. Pastor P. Raju[6].
13. Ms. Meenakshi Arora, learned counsel for the respondent no. 1,
on the other hand, stoutly defended the order of the High Court. She would
argue that since CJM had not taken cognizance of the offence, the
appellants have no role to play at any stage prior to issuance of process.
She referred to certain provisions, including Chapters XIV, XV and XVI,
and also Sections 156, 173, 190 and 202 of the Code. Learned counsel for
the respondent no. 1 argued that since the subject revision petition had
been filed by the respondent no. 1 against the dismissal of the complaint
at a pre-cognizance stage, the appellants do not have any right of hearing
under the provisions of Section 401(2) of the Code. In this regard, the
learned counsel placed reliance on Chandra Deo Singh v. Prokash Chandra
Bose and another[7], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and
others[8], Adalat Prasad v. Rooplal Jindal and others[9] and Mohd. Yousuf
v. Afaq Jahan (Smt.) and another[10].
14. Learned counsel for the respondent no.1 also relied upon
decisions of Punjab and Haryana High Court, Madhya Pradesh High Court and
Gujarat High Court in support of her submission that accused has no right
of hearing under Section 401(2) in a revision against an order by which a
complaint has been dismissed by the Magistrate under Section 203 of the
Code. She relied upon Gurdeep Singh v. State of Haryana[11], Panatar
Arvindbhai Ratilal v. State of Gujarat and others[12], Ratanlal Soni v.
Kailash Narayan Arjariya[13]. She also relied upon a decision of Delhi High
Court in Tata Motors Limited v. State (Criminal Revision Petition No.
16/2008 and Criminal LPA 4301/2008) decided on 12.2.2009 wherein decision
of this Court in Raghu Raj Singh Rousha2 has been distinguished.
15. Learned counsel for the respondent no. 1 would submit that
decision of this Court in P. Sundarrajan1 was not applicable to the fact
situation of the present case inasmuch as in that case, the accused were
party in the revision petition whereas in the subject revision the
appellants have not been allowed to be impleaded as party respondents and
the impugned order has been passed on the application for impleadment.
While referring to A. N. Santhanam3, learned counsel for the respondent no.
1 submitted that this case too was not applicable to the facts of the
present case as in that case the complainants were examined under Section
200 of the Code whereas in the present case the CJM has accepted the ‘C’
Summary Report under Section 173 after the investigation was done by the
police.
16. In order to appreciate the rival submissions, some of the
provisions of the Code need to be referred to. Section 156 deals with
Police Officer’s power to investigate cognizable case. It reads as follows:
“S. 156. Police Officer’s power to investigate cognizable case.
– (1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which a
Court having jurisdiction over the local area within the limits
of such station would have power to inquire into or try under
the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at
any stage be called in question on the ground that the case was
one which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under Section 190 may order such
an investigation as above mentioned.”
17. Section 190 falls in Chapter XIV and reads as under:
“S. 190. Cognizance of offences by Magistrates. - (1) Subject to
the provisions of this Chapter, any Magistrate of the first
class, and any Magistrate of the second class specially
empowered in this behalf under sub- section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or
try.”
18. Chapter XV of the Code deals with the complaints to
Magistrates. It has four Sections, 200 to 203, which read as under :
“S. - 200. Examination of Complainant.-- A Magistrate taking
cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses, and also
by the Magistrate:
Provided 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 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.
S. 201. Procedure by Magistrate not competent to take
cognizance of the case.- If the complaint is made to a
Magistrate who is not competent to take cognizance of the
offence, he shall, -
(a) If the complaint is in writing, return it for presentation
to the proper court with an endorsement to that effect;
(b) If the complaint is not in writing, direct the complainant
to the proper court.
S. 202. Postponement of issue of process.-- (1) Any Magistrate,
on receipt of a complaint of an offence of which he is
authorised to take cognizance or which has been made over to
him under Section 192, may, if he thinks fit, and shall, in a
case where the accused is residing at a place beyond the area
in which he exercises his jurisdiction postpone the issue of
process against the accused, and either inquire into the case
himself or direct 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:
Provided that no such direction for investigation shall be
made—
(a) Where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Sessions;
or
(b) Where the complaint has not been made by a Court, unless
the complainant and the witnesses present (if any) have been
examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if
he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session,
he shall call upon the complainant to produce all his witnesses
and examine them on oath.
(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that
investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to
arrest without warrant.
S. 203. Dismissal of complaint.—If, after considering the
statements on oath (if any) of the complainant and of the
witnesses and the result of the inquiry or investigation (if
any) under Section 202, the Magistrate is of opinion that there
is no sufficient ground for proceeding, he shall dismiss the
complaint, and in every such case he shall briefly record his
reasons for so doing.”
19. Chapter XVI of the Code has Sections 204 to 210. Section 204
deals with the issuance of process by the Magistrate. The process is issued
by the Magistrate if in his opinion there is sufficient ground for
proceeding.
20. Section 210 provides for procedure to be followed when there is
complaint case and police investigation in respect of the same offence. It
reads as under:
“S. 210. Procedure to be followed when there is a complaint case
and police investigation in respect of the same offence.—(1)
When in a case instituted otherwise than on a police report
(hereinafter referred to as a complaint case), it is made to
appear to the Magistrate, during the course of the inquiry or
trial held by him, that an investigation by the police is in
progress in relation to the offence which is the subject-matter
of the inquiry or trial held by him, the Magistrate shall stay
the proceedings of such inquiry or trial and call for a report
on the matter from the police officer conducting the
investigation.
(2) If a report is made by the investigating police officer
under Section 173 and on such report cognizance of any offence
is taken by the Magistrate against any person who is an accused
in the complaint case, the Magistrate shall inquire into or try
together the complaint case and the case arising out of the
police report as if both the cases were instituted on a police
report.
(3) If the police report does not relate to any accused in the
complaint case or if the Magistrate does not take cognizance of
any offence on the police report, he shall proceed with the
inquiry or trial, which was stayed by him, in accordance with
the provisions of this Code.”
21. Section 397 of the Code empowers the High Court or the Sessions
Judge to call for and examine the record of any proceeding before any
inferior court situate within its or his local jurisdiction for the purpose
of satisfying itself or himself as to the correctness, legality or
propriety, inter alia, of any order passed by such inferior court. The
powers of revision are concurrent with the High Court and the Sessions
Judge. By virtue of Section 399, the Sessions Judge may exercise all or any
of the powers which may be exercised by the High Court under sub-section
(1) of Section 401 and while doing so the provisions of sub-sections
(2),(3),(4) and (5) of Section 401 apply to such power as far as possible.
Section 401 deals with High Court’s power of revision and it reads as
follows :
“S. 401. High Court’s powers of revision.—(1) In the case of
any proceeding the record of which has been called for by
itself or which otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by sections 386, 389, 390 and
391 or on a Court of Session by section 307 and, when the
Judges composing the Court of revision are equally divided in
opinion, the case shall be disposed of in the manner provided
by section 392.
(2) No order under this section shall be made to the prejudice
of the accused or other person unless he has had an opportunity
of being heard either personally or by pleader in his own
defence.
(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one of
conviction.
(4) Where under this Code an appeal lies and no appeal is
brought, no proceeding by way of revision shall be entertained
at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application
for revision has been made to the High Court by any person and
the High Court is satisfied that such application was made
under the erroneous belief that no appeal lies thereto and that
it is necessary in the interests of justice so to do, the High
Court may treat the application for revision as a petition of
appeal and deal with the same accordingly.”
22. In light of the above provisions, the question for
consideration before us is to be examined.
23. Section 202 of the Code has twin objects; one, to enable the
Magistrate to scrutinize carefully the allegations made in the complaint
with a view to prevent a person named therein as accused from being called
upon to face an unnecessary, frivolous or meritless complaint and the
other, to find out whether there is some material to support the
allegations made in the complaint. The Magistrate has a duty to elicit all
facts having regard to the interest of an absent accused person and also to
bring to book a person or persons against whom the allegations have been
made. To find out the above, the Magistrate himself may hold an inquiry
under Section 202 of the Code or direct an investigation to be made by a
police officer. The dismissal of the complaint under Section 203 is without
doubt a pre-issuance of process stage. The Code does not permit an accused
person to intervene in the course of inquiry by the Magistrate under
Section 202. The legal position is no more res integra in this regard.
More than five decades back, this Court in Vadilal Panchal v. Dattatraya
Dulaji Ghadigaonker and another[14] with reference to Section 202 of the
Criminal Procedure Code, 1898 (corresponding to Section 202 of the present
Code) held that the inquiry under Section 202 was for the purpose of
ascertaining the truth or falsehood of the complaint, i.e., for
ascertaining whether there was evidence in support of the complaint so as
to justify the issuance of process and commencement of proceedings against
the person concerned.
24. In Chandra Deo Singh7, a four-Judge Bench of this Court had an
occasion to consider Section 202 of the old Code. The Court referred to
the earlier decision of this Court in Vadilal Panchal14 and few previous
decisions, namely, Parmanand Brahmachari v. Emperor[15], Radha Kishun Sao
v. S.K. Misra and Anr. [16], Ramkisto Sahu v. The State of Bihar[17],
Emperor v. J.A. Finan[18], Baidya Nath Singh v. Muspratt and others[19] and
it was held that the object of provisions of Section 202 (corresponding to
present Section 202 of the Code) was to enable the Magistrate to form an
opinion as to whether process should be issued or not and to remove from
his mind any hesitation that he may have felt upon the mere perusal of the
complaint and the consideration of the complainant’s evidence on oath. It
was further held that an accused person does not come into the picture at
all till process is issued.
25. In Smt. Nagawwa8, this Court had an occasion to consider the
scope of the inquiry by the Magistrate under Section 202 of the old Code.
This Court referred to the earlier two decisions in Vadilal Panchal14 and
Chandra Deo Singh7 and in para 4 of the Report held as under:
“4. It would thus be clear from the two decisions of this Court
that the scope of the inquiry under Section 202 of the Code of
Criminal Procedure is extremely limited — limited only to the
ascertainment of the truth or falsehood of the allegations made
in the complaint— (i) on the materials placed by the complainant
before the court; (ii) for the limited purpose of finding out
whether a prima facie case for issue of process has been made
out; and (iii) for deciding the question purely from the point
of view of the complainant without at all adverting to any
defence that the accused may have. In fact it is well settled
that in proceedings under Section 202 the accused has got
absolutely no locus standi and is not entitled to be heard on
the question whether the process should be issued against him or
not.”
26. In Adalat Prasad9, a three-Judge Bench of this Court had an
occasion to consider Sections 200, 202 and 204 of the Code. The scheme of
the above provisions was explained in the following manner:
“12. Section 200 contemplates a Magistrate taking cognizance of
an offence on complaint to examine the complaint and examine
upon oath the complainant and the witnesses present, if any. If
on such examination of the complaint and the witnesses, if any,
the Magistrate if he does not want to postpone the issuance of
process has to dismiss the complaint under Section 203 if he
comes to the conclusion that the complaint, the statement of
the complainant and the witnesses have not made out sufficient
ground for proceeding. Per contra, if he is satisfied that
there is no need for further inquiry and the complaint, the
evidence adduced at that stage have materials to proceed, he
can proceed to issue process under Section 204 of the Code.
13. Section 202 contemplates “postponement of issue of
process”. It provides that if the Magistrate on receipt of a
complaint, if he thinks fit, to postpone the issuance of
process against the accused and desires further inquiry into
the case either by himself 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, he may do so. In that process
if he thinks it fit he may even take evidence of witnesses on
oath, and after such investigation, inquiry and the report of
the police if sought for by the Magistrate and if he finds no
sufficient ground for proceeding he can dismiss the complaint
by recording briefly the reasons for doing so as contemplated
under Section 203 of the Code.
14. But after taking cognizance of the complaint and examining
the complainant and the witnesses if he is satisfied that there
is sufficient ground to proceed with the complaint he can issue
process by way of summons under Section 204 of the Code.
Therefore, what is necessary or a condition precedent for
issuing process under Section 204 is the satisfaction of the
Magistrate either by examination of the complainant and the
witnesses or by the inquiry contemplated under Section 202 that
there is sufficient ground for proceeding with the complaint
hence issue the process under Section 204 of the Code. In none
of these stages the Code has provided for hearing the summoned
accused, for obvious reasons because this is only a preliminary
stage and the stage of hearing of the accused would only arise
at a subsequent stage provided for in the latter provision in
the Code. It is true as held by this Court in Mathew case
[(1992) 1 SCC 217] that before issuance of summons the
Magistrate should be satisfied that there is sufficient ground
for proceeding with the complaint but that satisfaction is to
be arrived at by the inquiry conducted by him as contemplated
under Sections 200 and 202, and the only stage of dismissal of
the complaint arises under Section 203 of the Code at which
stage the accused has no role to play, therefore, the question
of the accused on receipt of summons approaching the court and
making an application for dismissal of the complaint under
Section 203 of the Code on a reconsideration of the material
available on record is impermissible because by then Section
203 is already over and the Magistrate has proceeded further to
Section 204 stage.
15. It is true that if a Magistrate takes cognizance of an
offence, issues process without there being any allegation
against the accused or any material implicating the accused or
in contravention of provisions of Sections 200 and 202, the
order of the Magistrate may be vitiated, but then the relief an
aggrieved accused can obtain at that stage is not by invoking
Section 203 of the Code because the Criminal Procedure Code
does not contemplate a review of an order. Hence in the absence
of any review power or inherent power with the subordinate
criminal courts, the remedy lies in invoking Section 482 of the
Code.”
27. The procedural scheme in respect of the complaints made to
Magistrates is provided in Chapter XV of the Code. On a complaint being
made to a Magistrate taking cognizance of an offence, he is required to
examine the complainant on oath and the witnesses, if any, and then on
considering the complaint and the statements on oath, if he is of the
opinion that there is no sufficient ground for proceeding, the complaint
shall be dismissed after recording brief reasons. The Magistrate may also
on receipt of a complaint of which he is authorised to take cognizance
proceed with further inquiry into the allegations made in the complaint
either himself or direct an investigation into the allegations in the
complaint 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. In that event, the Magistrate in fact postpones the
issue of process. On conclusion of the inquiry by himself or on receipt of
report from the police officer or from such other person who has been
directed to investigate into the allegations, if, in the opinion of
Magistrate taking cognizance of an offence there is no sufficient ground
for proceeding, complaint is dismissed under Section 203 or where the
Magistrate is of the opinion that there is sufficient ground for
proceeding, then a process is issued. In a summons case, summons for the
attendance of the accused is issued and in a warrant case the Magistrate
may either issue a warrant or a summons for causing the accused to be
brought or to appear before him.
28. Pertinently, Chapter XV uses the expression, “taking cognizance
of an offence” at various places. Although the expression is not defined
in the Code, but it has acquired definite meaning for the purposes of the
Code.
29. In R.R. Chari v. The State of Uttar Pradesh [20], this Court
stated that taking cognizance did not involve any formal action or indeed
action of any kind but it takes place no sooner a Magistrate applies his
mind to the suspected commission of an offence.
30. In Narayandas Bhagwandas Madhavdas v. The State of West
Bengal[21], this Court considered the expression, “take cognizance of
offence” with reference to Sections 190(1)(a), 200 and 202 and held as
under :
“……As to when cognizance is taken of an offence will depend
upon the facts and circumstances of each case and it is
impossible to attempt to define what is meant by taking
cognizance. Issuing of a search warrant for the purpose of an
investigation or of a warrant of arrest for that purpose cannot
by themselves be regarded as acts by which cognizance was taken
of an offence. Obviously, it is only when a Magistrate applies
his mind for the purpose of proceeding under S. 200 and
subsequent sections of Ch. XVI of the Code of Criminal
Procedure or under S. 204 of Ch. XVII of the Code that it can
be positively stated that he had applied his mind and therefore
had taken cognizance.”
31. In Darshan Singh Ram Kishan v. State of Maharashtra[22], the
Court reiterated what was stated in R.R. Chari20. It was further explained
that cognizance takes place at a point when a Magistrate first takes
judicial notice of an offence on a complaint, or a police report, or upon
information of a person other than a police officer.
32. In Kishun Singh5, while dealing with the expression “taking
cognizance of an offence” the Court said that cognizance can be said to be
taken by a Magistrate when he takes notice of the accusations and applies
his mind to the allegations made in the complaint or police report or
information and on being satisfied that the allegations, if proved, would
constitute an offence, decides to initiate judicial proceedings against the
alleged offender.
33. In State of West Bengal and another v. Mohd. Khalid and
others[23], the expression, “taking cognizance of an offence” has been
explained in paragraph 43 of the Report which reads as follows:
“43. Similarly, when Section 20-A(2) of TADA makes sanction
necessary for taking cognizance — it is only to prevent abuse of
power by authorities concerned. It requires to be noted that
this provision of Section 20-A came to be inserted by Act 43 of
1993. Then, the question is as to the meaning of taking
cognizance. Section 190 of the Code talks of cognizance of
offences by Magistrates. This expression has not been defined in
the Code. In its broad and literal sense, it means taking notice
of an offence. This would include the intention of initiating
judicial proceedings against the offender in respect of that
offence or taking steps to see whether there is any basis for
initiating judicial proceedings or for other purposes. The word
‘cognizance’ indicates the point when a Magistrate or a Judge
first takes judicial notice of an offence. It is entirely a
different thing from initiation of proceedings; rather it is the
condition precedent to the initiation of proceedings by the
Magistrate or the Judge. Cognizance is taken of cases and not of
persons.”
34. The above cases where the expression, “taking cognizance of an
offence” for the purposes of the Code (old as well as new) has been
explained have been noted by a two-Judge Bench of this Court in Pastor P.
Raju6. The Court in para 13 of the Report referred to the distinction
between “taking cognizance of an offence” and “issuance of process” and
observed as under:
“13. ……..Cognizance is taken at the initial stage when the
Magistrate applies his judicial mind to the facts mentioned in a
complaint or to a police report or upon information received
from any other person that an offence has been committed. The
issuance of process is at a subsequent stage when after
considering the material placed before it the court decides to
proceed against the offenders against whom a prima facie case is
made out.”
35. On behalf of the appellants, it was submitted that the
direction by the CJM to the Police Officer to investigate into the
allegations made in the complaint amounts to taking cognizance of an
offence and the dismissal of the complaint by the CJM under Section 203
of the Code was after he had taken cognizance of the offence. On the other
hand, on behalf of the respondent no. 1, it was vehemently contended that
dismissal of complaint by the CJM under Section 203 of the Code was at a
pre-cognizance stage. The submission on behalf of the respondent no. 1 is
that no cognizance has been taken by the CJM while directing the Police
Officer to investigate into the allegations of the complaint.
36. We shall immediately advert to the aspect whether or not CJM
had taken cognizance of the offence and whether the dismissal of the
complaint under Section 203 in the matter was post-taking cognizance.
37. The word, “cognizance” occurring in various Sections in the
Code is a word of wide import. It embraces within itself all powers and
authority in exercise of jurisdiction and taking of authoritative notice of
the allegations made in the complaint or a police report or any information
received that offence has been committed. In the context of Sections 200,
202 and 203, the expression `taking cognizance’ has been used in the sense
of taking notice of the complaint or the first information report or the
information that offence has been committed on application of judicial
mind. It does not necessarily mean issuance of process.
38. Having regard to the above legal position, if the order of the
CJM passed on 18.6.2004 is seen, it becomes apparent that he had applied
judicial mind on the complaint that day. The order records, “on perusing
the complaint and the accompanying documents, in the said matter it is
necessary to take into custody the documents mentioned in the complaint. It
is necessary to find out the persons who have forged signatures on such
documents, and record their statements, and to compare the said signatures
with the signatures of the family members of the complainant, and in this
regard obtain the opinion from the Handwriting Expert, in view of all this
such investigations cannot be done by the Court, in view of this fact below
Section 156(3) of Cr.P.C. in the matter of the said complaint for police
investigations it is hereby ordered to send the said inquiry to the P.I.,
Umra, Police Station. And, he is ordered to investigate thoroughly in this
matter and within 30 days present the report before this Court”.
39. From the above order passed by the CJM, there remains no doubt
that on 18.06.2004, he had taken cognizance although he postponed issue of
process by directing an investigation to be made by Police Officer. The
submission of the learned counsel for the respondent no.1 that the CJM had
not taken cognizance in the matter and the complaint was dismissed under
Section 203 at the pre-cognizance stage has no substance and is rejected.
40. The question now is, in a matter of this nature where complaint
has been dismissed by the Magistrate under Section 203 post-cognizance
stage and pre-issuance of process, whether on challenge to the legality of
the order of dismissal of complaint being laid by the complainant in a
revision application before the High Court, the persons who are arraigned
as accused in the complaint have a right to be heard.
41. Before we deal with the above question further, some of the
decisions of the High Courts upon which heavy reliance was placed by the
counsel for the respondent no. 1 may be noticed. In Panatar Arvindbhai
Ratilal12, a Single Judge of the Gujarat High Court had an occasion to
consider locus standi of the suspects at the stage of grant of ‘C’
Summary. That was a case where the police did not initiate any
investigation for quite some time in respect of an offence registered with
the police station. The complainant approached the CJM wherein direction
for investigation by the police was made. The police after investigation
submitted report and sought ‘C’ Summary. The complainant objected to the
report submitted by the police as to ‘C’ Summary. The Magistrate allowed
the suspects to be heard against which the complainant filed the criminal
revision before the Sessions Judge. The Sessions Judge agreed with the
complainant and overruled the order of the Magistrate allowing the accused
to make submission. There were seven accused in the complaint and two of
them approached the High Court against the order of the Sessions Judge.
The Single Judge of the High Court confirmed the order of Sessions Judge.
The Magistrate thereafter heard the complainant and granted ‘C’ Summary.
Against that order, the complainant filed a revision before the Sessions
Judge. Two accused who had earlier challenged the order of the Sessions
Judge before the High Court applied to the Sessions Judge for permission to
make submission in support of the order of the Magistrate. The Sessions
Judge allowed the application made by the accused against which order the
complainant filed criminal revision before the High Court. The High Court
noted the provisions contained in Sections 397(2) and 403 of the Code and
then held that allowing the suspects to be heard at this stage would amount
to permitting them to have their say at the stage which is not contemplated
by the Code and it would be giving a premature hearing to the accused. The
High Court was persuaded by the submission of the complainant that an
accused cannot be given pre-trial hearing. The High Court observed as
follows :
“6. The views consistently expressed by this Court as well as by
the Supreme Court about the hearing of the suspects at the stage
of granting of 'C’ summary or not is clearly to the effect that
they have no locus standi.
7. In this background we turn to the submission made under
Section 403 of the Code of Criminal Procedure, by learned
Advocate Shri J.R. Nanavati. There again at first sight it might
appear that party referred to in the said section could be a
party other than one arrayed before the Court on either side,
but when we realise that the matter to be dealt with under
Chapter 30 of the Code of Criminal Procedure wherein occurs
Section 403 power is that of a Revision and it being the power
exercised by the Court, a party may or may not be heard as the
Court may decide and this alone would explain the inclusion of
Section 403 in that Chapter.
8. Otherwise all the procedural laws have as its foundation the
maxim Audi Alterem Partem and at all stages wherever the need be
there are provision for issuance of notice and making sure that
the party against whom the orders are being sought is heard.
Therefore, there was no need of inclusion of Section 403 at the
place where we find it and we can appreciate it only and only if
bearing in mind the fact that it being a chapter dealing with
revisional jurisdiction which is expressly privilege of the
Court realising the order of subordinate Court that there might
be an occasion, the party need not be or may not be heard, and
therefore, there is a specific provision in that behalf.
9. Once we appreciate the aforesaid section in this light of
submissions made by learned Advocate Shri Nanavati pertaining to
the aforesaid decision of the Gujarat High Court as well as that
of the Supreme Court on hearing of the suspects at the stage of
granting of 'C' summary, can also be understood because the same
principle will apply whether the accused are being dealt with
under Chapter 13 or 17 of the Code of Criminal Procedure or
under Chapter 30 of the Code of Criminal Procedure, as the case
may be, the principle will not alter and more so when we
appreciate the inclusion of Section 403 of the Code of Criminal
Procedure, it becomes quite clear that the principle on the
contrary would be reinforced.”
42. The Madhya Pradesh High Court in Ratanlal Soni13 was concerned
with the legality of an order passed by Additional Sessions Judge without
notice to the accused persons who were arrayed as non-applicants therein.
The Single Judge of that Court referred to two decisions of this Court in
Chandra Deo Singh7 and Smt. Nagawwa8 and couple of decisions of the High
Court and stated in paragraph 6 of the Report as under :
“6. In view of the aforesaid enunciation of law it is luminously
clear that the accused-has no locus standi to appear and
participate before the process is issued. This being the
accepted position of law it can safely be concluded that when a
revision is filed challenging the order refusing to take
cognizance the accused has no locus standi to contest. He is not
a necessary party. The determination is to be made by the Court
to find out the approach of the Court below and to scrutinise
the justifiability of the order refusing to take cognizance.
This being the position of law disposal of revision by the
revisional Court without issuing notice to the non-applicant is
not infirm or pregnable. Once it has been held that the accused
persons have no role to play before process is issued the
revision at their instance challenging the order of the
revisional Court directing the Magistrate to reconsider the
matter is not tenable as they cannot raise grievance in regard
to the same as yet there is no direction for issuance of
process.”
43. A Single Judge of Punjab and Haryana High Court in Gurdeep
Singh11 was concerned with a petition under Section 482 of the Code filed
by the accused seeking quashment of the order passed by the Sessions Judge
setting aside the order of the CJM whereby the complaint was dismissed for
want of prosecution. The dismissal of complaint by the CJM for want of
prosecution was at the initial stage. The challenge to the order of the
Sessions Judge by the accused was on the ground that the Sessions Judge
while allowing the revision application had infringed the provisions of
Section 401(2) of the Code inasmuch as no opportunity of being heard was
given to the accused although the complaint was dismissed for want of
prosecution. The Single Judge of that Court took the view as follows :
“14. …….By no stretch of imagination, in my opinion, the
accused can seek the setting aside of the order passed by the
Sessions Judge on the ground that the said order was passed by
the Sessions Judge without issuing notice to the accused. As
referred to above, the accused petitioner cannot take benefit
of provisions of Section 401(2) Cr.P.C. as it could not be said
that any order to the prejudice or against the petitioner had
been passed by the learned Sessions Judge. On the other hand,
the order, - vide which the complaint was dismissed for want of
prosecution was set aside by the learned Sessions Judge. If the
case of the accused petitioner was not covered under Section
401(2) Cr.P.C., it was not at all necessary for the learned
Sessions Judge to have heard the accused petitioner while
setting aside the order of the learned Magistrate in view of
the provisions of Section 403 Cr.P.C. Even otherwise in view of
the proviso to Section 398 Cr.P.C. only the person who was
discharged had a right to be heard before the order of
discharge could be set aside in revision by the Court of
Sessions in exercise of its revisional jurisdiction. In this
view of the matter, in my opinion, the contention of the
learned counsel for the accused petitioner that the order
passed by the learned Sessions Judge was liable to be set aside
only on the ground that the accused petitioner was not heard,
could not be sustained.”
44. In Tata Motors Limited, Single Judge of the High Court was
concerned with controversy arising out of complaint which was dismissed by
the Metropolitan Magistrate under Section 203 of the Code in limine. In the
revision petition filed under Section 397 read with Section 401 and
Section 482 of the Code, it was contended on behalf of the complainant that
the Metropolitan Magistrate erred in taking into consideration possible
defence of the accused instead of ascertaining whether on a consideration
of the complaint and the pre-summoning evidence, a prima facie case had
been made out for summoning the accused for the offence mentioned in the
complaint. It was also argued on behalf of the complainant before the High
Court that the accused persons have not yet been summoned and even
cognizance of the case has not been taken by the Metropolitan Magistrate
and, therefore, there was no occasion at all for the accused persons to be
heard. It was also argued on behalf of the complainant that at the pre-
cognizance stage, there was no question of the accused being given an
opportunity even in a revision petition filed by the complainant against
the order of dismissal of complaint. On the contrary, on behalf of the
accused persons it was argued that under Section 401(2) of the Code, if
adverse order is going to be passed in revision petition which might
prejudice either the accused or any other person then such a person has to
be mandatorily given an opportunity of being heard either personally or by
pleader in defence. The Single Judge of that Court on consideration of the
submissions of the parties and the decisions cited before him culled out
the legal position as follows :
“20. xxx xxx xxx
1) There is a distinction to be drawn between the criminal
complaint cases which are at the pre-cognizance stage and
those at the post-cognizance stage. There is a further
distinction to be drawn between the cases at the post-
cognizance but pre-summoning stage and those at the post-
summoning stage.
(2) It is only at the post-summoning stage that the
respondents in a criminal complaint would answer the description
of an ‘accused’. Till then they are like any other member of the
public. Therefore at the pre-summoning stage the question of
their right to be heard in a revision petition by the
complainant in their capacity as “accused” in terms of Section
401(2) CrPC does not arise.
3) At the post-cognizance but pre-summoning stage, a person
against whom the complaint is filed might have a right to be
heard under the rubric of ‘other person’ under Section 401(2)
CrPC. If the learned MM has not taken the cognizance of the
offence then no right whatsoever accrues to such “other
person” to be heard in a revision petition.
(4) Further, it is not that in every revision petition filed
by the complainant under Section 401(2) CrPC, a right of hearing
has to be given to such “other person” or the accused against
whom the criminal complaint has been filed. The right accrues
only if the order to be passed in the revision petition is
prejudicial to such person or the accused. An order giving a
specific direction to the learned MM to either proceed with the
case either at the post-cognizance or post-summoning stage or a
direction to register an FIR with a direction to the learned MM
to proceed thereafter might be orders prejudicial to the
respondents in a criminal complaint which would therefore
require them to be heard prior, to the passing of such order.”
45. On facts obtaining in the case, the Single Judge observed that
the Metropolitan Magistrate had not even taken cognizance of the offences
and, therefore, there was no question of the applicants being heard at the
stage of revision application.
46. The above decision of the Delhi High Court in Tata Motors
Limited came up for consideration of that Court in Prakash Devi and others
v. State of Delhi and another [Criminal Miscellaneous Case No. 2626/2009
decided on February 5, 2010]. The Single Judge, on facts of the case which
were under consideration before him, observed that the Magistrate had
dismissed the complaint filed by the complainant after taking into
consideration the status report filed by the police. The Magistrate had not
examined the complainant and other witnesses under Section 202 of the Code
and in the revision filed by the complainant the revisional court had
remanded the matter to the Magistrate to grant another opportunity to the
complainant to lead pre-summoning evidence and to proceed in the matter in
accordance with law and, therefore, there was no occasion for the Sessions
Judge to accord hearing to the accused persons. The High Court held as
under:
“16. …….As already discussed above, the character of the
petitioner was still not that of an accused as the complaint
filed by the respondent was dismissed under Section 203 Cr.P.C.
and since the matter was remanded back to the Magistrate to
grant opportunity to the complainant to lead pre-summoning
evidence, therefore, the said order does not cause any
prejudice to the rights of the petitioner. Even after the said
remand, the fate of the complaint case could either be
dismissal under Section 203 or under 204 Cr.P.C., if the Court
with the fresh material before it, comes to the conclusion to
proceed against the respondent. Since in the present case the
process was not yet issued against the petitioner and the
complaint was dismissed under S. 203 of Cr.P.C., therefore,
preceding the said stage, the petitioner had no right to seek
opportunity of hearing before the Revisional Court in the light
of the legal position discussed above.”
47. It may not be out of place to refer to an earlier decision of
the Delhi High Court in A.S. Puri v. K.L. Ahuja[24]. In that case, inter
alia, the question before the High Court was whether Additional Sessions
Judge had committed an error in hearing the arguments of the accused’s
counsel to whom he had not ordered notice of the revision petition filed
before him by the complainant. The Single Judge of that Court dealt with
the question as under :
“25. …..This question need not detain us because the learned
Additional Sessions Judge had invited the counsel for Mr. Puri
to address arguments, when he was present in Court at the time
of the hearing of the revision petition. It appears that notice
of the revision petition did go to Mr. Puri but as it appears
from the docket the learned Additional Sessions Judge had only
ordered notice to the respondent, which was the State. If even
by any error committed by the Officer of the learned Magistrate,
notice had also gone to Mr. Puri nothing prevented the learned
Additional Sessions Judge from hearing Mr. Puri for it was his
discretion to hear him. A Full Bench of the Calcutta High Court,
consisting of eight Judges, pointed out in Hari Dass Sanyal v.
Saritulla, (1888) ILR 15 Cal 608 (FB), that while no notice to
an accused person was necessary in point of law before
disposing of a revision petition directed against the order of
dismissal under Section 203, Criminal Procedure Code and
ordering a further enquiry as a matter of discretion it was
proper that such a notice was given. In spite of that the
learned Additional Sessions Judge had set aside the order of
dismissal. In this situation the complainant cannot make any
further grievance of this.”
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
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)”.
49. Webster Comprehensive Dictionary [International Edition]
explains “prejudice” to mean (i) a judgment or opinion, favourable or
unfavourable, formed beforehand or without due examination …….; detriment
arising from a hasty and unfair judgment; injury; harm.
50. P. Ramanatha Aiyar; the Law Lexicon [The Encyclopaedic Law
Dictionary] explains “prejudice” to mean injurious effect, injury to or
impairment of a right, claim, statement etc.
51. “Prejudice” is generally defined as meaning “to the harm, to
the injury, to the disadvantage of someone”. It also means injury or loss.
52. The expression “other person” in the context of Section 401(2)
means a person other than accused. It includes suspects or the persons
alleged in the complaint to have been involved in an offence although they
may not be termed as accused at a stage before issuance of process.
53. The expression “in his own defence” comprehends, inter alia,
for the purposes of Section 401(2), in defence of the order which is under
challenge in revision before the Sessions Judge or the High Court.
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 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 offence have 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.
55. In P. Sundarrajan1, a two-Judge Bench of this Court was
concerned with a case where a complaint under Section 420 IPC came to be
dismissed by the Judicial Magistrate. Against the order of dismissal of the
complaint, the complainant preferred revision petition before the High
Court. The High Court was of the view that no notice was necessary to the
suspects for disposal of the revision and set aside the order of the
Magistrate and directed the Magistrate to proceed with the complaint afresh
in accordance with law. Against the order of the High Court, the suspects
approached this Court under Article 136. The Court granted leave and
allowed the appeal, set aside the order of the High Court and sent the
matter back to the High Court with a direction to issue proper notice to
the persons accused of the crime in the complaint and proceed with the
revision petition after affording them a reasonable opportunity of hearing.
This Court in paragraphs 5 and 6 of the Report (Pg. 472 and 473) held as
under:
“5. In our opinion, this order of the High Court is ex facie
unsustainable in law by not giving an opportunity to the
appellant herein to defend his case that the learned Judge
violated all principles of natural justice as also the
requirement of law of hearing a party before passing an adverse
order.
6. We have, therefore, no hesitation in allowing this appeal,
setting aside the impugned judgment and remanding the matter to
the High Court to issue proper notice to the appellant herein
who is the respondent in the criminal revision petition before
it and afford him a reasonable opportunity of hearing and to
pass appropriate orders. The appeal is allowed.”
56. In Raghu Raj Singh Rousha2, a two-Judge Bench of this Court was
faced with a question whether, in the facts and circumstances of the case,
the High Court in exercise of its jurisdiction under Sections 397 and 401
of the Code was justified in passing an order in the absence of the
accused persons. That was a case where a complaint was filed under Section
200 of the Code in respect of offences punishable under Sections 323, 382,
420, 465, 468, 471, 120-B, 506 and 34 of IPC. Along with the complaint, an
application under Section 156(3) was also made. The Metropolitan
Magistrate passed an order refusing to direct investigation under Section
156(3) and the complainant was asked to lead pre-summoning evidence. The
complainant aggrieved by the order of the Metropolitan Magistrate filed a
revision petition before the High Court. The High Court with the consent of
the APP appearing for the State set aside the order of the Metropolitan
Magistrate with a direction to him to examine the matter afresh after
calling for a report from the police authorities. It is from this order
that the matter reached this Court at the instance of the suspect/accused.
The Court observed that if the Metropolitan Magistrate had taken cognizance
of the offence and issuance of summons upon the accused persons had been
merely postponed, in a criminal revision filed on behalf of complainant,
the accused was entitled to be heard before the High Court. Sections 397,
399 and 401 were noticed by this Court and so also few earlier decisions
including Chandra Deo Singh7, Vadilal Panchal14, P. Sundarrajan1 and then
in paragraphs 22 and 23 (Pg. 369) of the Report, the Court held as under :
“22. Here, however, the learned Magistrate had taken
cognizance. He had applied his mind. He refused to exercise his
jurisdiction under Section 156(3) of the Code. He arrived at a
conclusion that the dispute is a private dispute in relation to
an immovable property and, thus, police investigation is not
necessary. It was only with that intent in view, he directed
examination of the complainant and his witnesses so as to
initiate and complete the procedure laid down under Chapter XV
of the Code.
23. We, therefore, are of the opinion that the impugned
judgment cannot be sustained and is set aside accordingly. The
High Court shall implead the appellant as a party in the
criminal revision application, hear the matter afresh and pass
an appropriate order.”
57. In a comparatively recent order in A. N. Santhanam3, a two-
Judge Bench of this Court was concerned with a question, whether the High
Court committed an error in disposing of the criminal revision petition
filed by the complainant without any notice to the accused. On behalf of
the accused/suspect, it was argued that the High Court committed the error
in disposing of the criminal revision without any notice to him. On the
other hand, on behalf of the complainant it was argued that no notice as
such was required to be issued to the accused as it was at the stage of
taking cognizance. The Court considered Section 401, particularly, sub-
section (2) thereof and held as under :
“A plain reading of Clause (2) of the said provision makes it
abundantly clear that the High Court in exercise of its
revisional power cannot pass any order which may cause
prejudice to the accused or other persons unless he has an
opportunity of being heard either personally or by pleader in
his own defence.
In the instant case it cannot be said that the rights of the
appellant have not been affected by the order of revision. The
complaint filed by the respondent which was rejected for
whatsoever reasons has been resurrected with a direction to the
Magistrate to proceed with the complaint. Undoubtedly, whether
the appellant herein was an accused or not but his right has
been affected and the impugned order has resulted in causing
prejudice to him.
In the circumstances, we are of the view that the decision
cited by the learned counsel for the respondent has no
application whatsoever to the facts situation. In fact the
decision of this Court was in a case where the complaint was
taken cognizance and not a case where the compliant was
rejected. In the circumstances, we hold that the High Court
committed an error in allowing the revision filed by the
respondent herein without any notice to the appellant.
For the aforesaid reasons, the impugned order is set aside and
the Criminal Revision Case No. 1045 of 2003 shall stand
restored to its file for hearing and disposal on merits after
notice to the appellant herein.”
58. We are in complete agreement with the view expressed by this
Court in P. Sundarrajan1 , Raghu Raj Singh Rousha2 and A. N. Santhanam3 .
We hold, as it must be, that in a revision petition preferred by
complainant before the High Court or the Sessions Judge challenging an
order of the Magistrate dismissing the complaint under Section 203 of the
Code at the stage under Section 200 or after following the process
contemplated under Section 202 of the Code, the accused or a person who is
suspected to have committed crime is entitled to hearing by the revisional
court. In other words, where complaint has been dismissed by the Magistrate
under Section 203 of the Code, upon challenge to the legality of the said
order being laid by the complainant in a revision petition before the High
Court or the Sessions Judge, the persons who are arraigned as accused in
the complaint have a right to be heard in such revision petition. This is
a plain requirement of Section 401(2) of the Code. If the revisional
court overturns the order of the Magistrate dismissing the complaint and
the complaint is restored to the file of the Magistrate and it is sent
back for fresh consideration, the persons who are alleged in the complaint
to have committed crime have, however, no right to participate in the
proceedings nor they are entitled to any hearing of any sort whatsoever by
the Magistrate until the consideration of the matter by the Magistrate for
issuance of process. We answer the question accordingly. The judgments of
the High Courts to the contrary are overruled.
59. In view of the above position, the impugned order dated
5.8.2005 cannot be sustained and is liable to be set aside and, is set
aside. The appellants’ application for impleadment in the criminal
revision petition stands allowed. High Court shall now hear the matter
and dispose of the criminal revision petition in accordance with law. The
appeal is allowed as above.
………..…………….J.
(R.M. Lodha)
………….…………………….J.
(Chandramauli Kr. Prasad)
…………………………………….J. (Sudhansu Jyoti
Mukhopadhaya)
NEW DELHI.
OCTOBER 1, 2012.
-----------------------
[1] (2004) 13 SCC 472
[2] (2009) 2 SCC 363
[3] 2011 (2) JCC 720 (SC)
[4] (1964) 5 SCR 37
[5] (1993) 2 SCC 16
[6] (2006) 6 SCC 728
[7] 1964 (1) SCR 639
[8] (1976) 3 SCC 736
[9] (2004) 7 SCC 338
[10] (2006) 1 SCC 627
[11] ILR 2001 (2) P & H 388
[12] 1991 (1) Vol. 32 GLR 451
[13] 1998 (2) MPLJ 321
[14] (1961) 1 SCR 1
[15] AIR (1930) Patna 30
[16] AIR (1949) Patna 36
[17] AIR (1952) Patna 125
[18] AIR (1931) Bom 524
[19] ILR (1886) XIV Cal 141
[20] (1951) SCR 312
[21] AIR (1959) SC 1118
[22] (1971) 2 SCC 654
[23] (1995) 1 SCC 684
[24] AIR 1970 Delhi 214
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41
