Abdullah Gulamahmed Uraizee, J.@mdash1. Rule. Mr. N.J. Shah, learned APP waives service of rule for respondent No. 1 & 2 while Mr. Hriday Buch, learned advocate waives service of rule for respondent No. 3. With consent of the parties, the matter is heard and decided finally today.
2. The applicants have preferred this revision application under section 397 read with section 401 of the Code to challenge the judgement and order dated 4/6/2014 passed by learned Additional City Sessions Judge, Ahmedabad in Criminal Revision Application No. 200 of 2014. The learned Additional City Sessions Judge, by the impugned judgement and order, allowed the Criminal Revision Application filed by respondent No. 3 by setting aside order dated 18/2/2014 passed by learned Metropolitan Magistrate, Court No. 25 Ahmedabad in Criminal case of 32 of 2011 and directed the Police Inspector to carry out further investigation of the crime on the points mentioned in the impugned order.
3. The facts necessary for disposal of this revision application are that respondent No. 3 filed complaint on 17/11/2008 with Shahpur Police Station against the present applicants inter-alia stating that according to respondent No. 3, he was the owner of land bearing block No. 236 situated at village Kalana, Taluka Sanand, District - Ahmedabad. He has never executed any sale deed in favour of any person to sell his land. A public notice came to be published on 8/10/2008 in vernacular in daily "Gujarat Samachar" at the instance of applicant No. 2 purportedly on behalf of M/s. Golden Arrow Wire Less Pvt. Ltd. to bring the notice that the subject land was purchased from M/s. Padmavati Partnership Firm. He also came to know that the applicant No. 1 Kirtiben had also filed Civil Suit No. 426 of 2008 in the District Court, Mirzapur and had produced document i.e. Banachitthi with bare signature. The Banachithhi was sent to FSL for opinion of the Hand Writing Expert. The report of Hand Writing Expert reveals that Banachitthi was bogus. The complaint has been filed against the applicant vide CR-I- 168/2008 for the offence punishable under section 465, 468, 471 and 114 of the Indian Penal Code.
4. After investigation, "B" Summary report came to be filed in the Magisterial Court. Against the Summary report notice came to be issued to respondent No. 3, who in turn submitted protest petition and also submitted an application under section 173 (8) of the Code for further investigation. The learned Trial Magistrate accepted the "B" Summary report submitted by the Investigating Officer and spurred the application submitted by respondent No. 3 under section 173(8) of the Code for further investigation. The request was turned down by the learned Magistrate. He, therefore, preferred revision application before the City Sessions Court, Ahmedabad, which was allowed in part vide order dated 24/2/2011. The police authorities, investigating the offence, were directed to approach the Lower Court and seek appropriate relief under section 173(8) of the Code for further investigation so as to take the proceedings to logical conclusion. In compliance of the order dated 24/2/2011 passed by the learned Sessions Judge, the Investigating Officer submitted an application for permitting further investigation and to give 60 days time to complete the investigation. The learned Magistrate, by his order of even date, has directed the Investigating Officer to carry out further investigation and submit report within 60 days. Respondent No. 3 was not happy with the further investigation carried out by the Investigating Officer. He, therefore, submitted an application Exh. 17 dated 12/2/2013 in the Trial Court for further investigation of 173(8) of the Code and to enter with further investigation.
5. Learned Magistrate, by his order dated 18/2/2014, rejected an application.
6. Being aggrieved by and dissatisfied with the order of the learned Magistrate, respondent No. 3 preferred Criminal Revision Application No. 200 of 2014 in the City and Sessions Court, Ahmedabad. Learned Additional City and Sessions Judge, by him impugned judgement and order, allowed the revision application and directed the Investigating Officer to carry out further investigation on the points mentioned in the final order. The applicants, who were original accused persons, are aggrieved by the impugned judgement and order of the learned Additional Sessions Judge, which they have questioned in this revision application.
7. I have heard Mr. A.Y. Kogje, learned advocate for the applicants, Mr. N.J. Shah, learned APP for respondent Nos. 1 & 2 and Mr. Hriday Buch, learned advocate for respondent No. 3.
8. Mr. Kogje, learned advocate for the applicants has contended that the impugned order passed by the learned Additional Sessions Judge was without hearing the applicants. He further contends that section 401(2) of the Code mandates that accused shall be heard before any order prejudicial to him is passed in revision application. He has drawn my attention exh. 17 - application of respondent No. 3 for further investigation, by which, the present applicants were made opponents in the said proceedings.
9. It is his further contention that the learned Magistrate, while dismissing exh. 17 application of respondent No. 3, had offered an opportunity of hearing to the applicants and after considering the arguments of the applicants and respondent No. 3, learned Magistrate was pleased to dismiss the application. He, therefore, submits that the present applicants ought to have been made party opponents in the revision application preferred by respondent No. 3 before the City Sessions Court.
10. He submits that the learned City Sessions Judge has fallen in error in allowing the revision application behind the back of the applicants. His further contention is that after the submission of charge sheet, further investigation, at the instance of the de-facto complainant, is not maintainable.
11. In support of this contention, he has placed reliance on the judgement of the Supreme Court in case of Reeta Nag v. State of West Bengal and Ors., (, 2009 (9) SCC 129). Relevant observations made in para No. 26 reads as under:
"26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant."
12. He has also relied upon the judgement of the Supreme Court in case of Manoharlal Sharma v. Principal Secretary and Ors. (, AIR 2014 SC 666) and has urged that the impugned judgement and order of the learned Additional Sessions Judge may be quashed and set aside.
13. Mr. Hriday Buch, learned advocate for respondent Nos. 2 & 3, on the other hand, has resisted this revision and has submitted that no prejudice is caused to the applicants by the impugned judgement, whereby further investigation is ordered. Relying upon the judgement of the Supreme Court in case of Shri Bhagwan Samarda Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishvanandha Maharaj v. State of A.P. and Ors., [, (1999) 5 SCC 740] and in case of Narender G. Goel v. State of Maharashtra & Anr. [, (2009) 6 SCC 65], he submits that at the stage of consideration of application under section 173(8) of the Code, the accused persons have no locus standi and they are not required to be heard.
14. It is his further contention that the provisions of section 173(8) of the Code gave full liberty to the Investigating Officer to carry out further investigation even after the cognizance of the offence is taken by the Magistrate. In support of this submission, he has relied upon the judgement of the Supreme Court in case of Iswardas v. State of Madhya Pradesh & Ors., [, AIR 1979 SC 1791]. He would also submit that the judgement of the supreme court in case of Reeta Nag (supra) relied upon by the learned advocate for the applicant is not applicable to the facts of the present case inasmuch as by the impugned judgement, the learned Sessions Judge has not ordered re-investigation. He, therefore, urges that there being no illegality or perversity in the impugned judgement, the present revision application needs to be dismissed.
15. Mr. N.J. Shah, learned APP submits that the learned Magistrate has committed mistake in hearing the applicants while deciding application exh. 17 submitted by respondent No. 3 as according to him, while considering application under section 173(8), accused persons have no locus standi.
16. Having heard learned advocate on either side, I am of the view that the present revision application needs to be allowed and remanded to the Lower Appellate Court on sole ground that under section 401(2) of the Code, the opportunity of hearing was not afforded to the applicants while passing the impugned judgement.
17. Section 399 of the Code provides as under:
"399. Sessions Judge''s powers of revision:--
(1) In the case of any proceeding the record of which has been called for by himself, 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.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of subsections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."
18. Relevant provision of section 401 of the Code are as under:
"(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 defense."
19. Thus, the conjoint reading of the provisions of section 399(2) and section 401 sub section (2) makes it manifestly clear that when the Sessions Judge exercised his suo moto powers of revision, the powers contained in section 401 of the Code would be available to the learned Additional Sessions Judge.
20. The contention of Mr. Kogje, learned advocate for the applicants that there is a infraction of the provision of section 401 subsection 2 of the Code inasmuch as the Lower Appellate Court decided the revision application without hearing the applicants and passed order pre-judicial to the applicant cannot be accepted.
21. The undisputed fact, which emerges from the record is that respondent No. 3 submitted exh. 17 application under section 173(8) of the Code for further investigation, wherein he had impleaded the present respondents as the accused persons. It further transpires from the order of the learned Magistrate that the learned magistrate, after hearing the detailed oral submissions made on behalf of respondent No. 3 and also the written submission of the applicants, dismissed the application by reasoned order. Respondent No. 3 being aggrieved by the order of the learned Magistrate dismissed exh. 17 application for further investigation, preferred Criminal Revision Application No. 200 of 2014 in the City Sessions Court, Ahmedabad. It is vividly clear from the impugned judgement of the learned Additional City Sessions Judge that the present applicants, though were the parties in the exh. 17 application and were heard by the learned Magistrate before passing the order, were not arraigned as the party opponents. The learned Additional City Sessions Judge has passed the impugned judgement upturning the order of the learned Magistrate who declined further investigation upon exh. 17 application of the applicant, and directed further investigation.
22. The contentions of Mr. Buch, learned advocate for respondent No. 3 have as per the settled proposition of law as propounded by the supreme court in case of Reeta Nag supra, the accused persons are not required to be heard while considering application for further investigation and in any case the applicants have not shown any prejudice that has been caused to them in the present application cannot be countenanced. The reason is very simple and obvious. As it has been noted in the foregoing, it was respondent No. 3, who gave exh. 17 application for further investigation to the learned Magistrate. In the said application, the applicants were made opponents being accused persons and respondent No. 3 also served copy of the said application on the present applicants. Learned Magistrate, after hearing oral submissions of respondent No. 3 as well as written arguments of the present applicants, dismissed exh. 17 application by reasoned order, which is in favour of the present applicants. The perusal of the order of learned Magistrate makes it explicitly clear that submissions, oral and written, made on behalf of the applicants were considered by learned Magistrate and he found substance in the submissions made on behalf of the applicants and therefore, dismissed the application.
23. In the back ground of this scenario, it can not be contended or stated that no prejudice is caused to the applicants by the impugned judgement of the learned Additional City Sessions Judge, whereby the order of the learned Magistrate is set aside and further investigation is granted. I am, therefore, of the opinion that on this ground alone the matter needs to be referred to the Lower Appellate Court for fresh consideration after affording opportunity of hearing to the applicants and the respondents including respondent No. 3 de-facto complainant. Learned advocates for the contesting parties have raised multiple submissions in this revision application. They are in respect of the locus of the accused persons, and they are not necessary parties, that by the impugned judgement, no prejudice is caused and that by the impugned judgement and order the learned Additional City Sessions Judge has reviewed the earlier order passed by the learned Principal Sessions Judge on 24/2/2011. They are kept open and parties are at liberty to agitate this issue of the contentions when the Lower Appellate Court taken up the revision application for fresh consideration.
24. For the foregoing reasons, the revision application is allowed in part. The impugned judgement and order dated 4/6/2014 passed by learned Additional City Sessions Judge in Criminal Revision Application No. 200 of 2014 is hereby quashed and set aside. The matter is referred to learned Additional City Sessions Judge for fresh consideration after affording an opportunity of hearing to the applicants and opponents including respondent No. 3 de facto complainant. The all other issues or contentions as mentioned or other issues that parties may intend to raise before the Lower Appellate Court, are kept open.
25. It is made clear that this Court has not expressed any opinion on merits of the case. The Lower Appellate Court is expected to decide the revision application strictly on merits and in accordance with law.
