Akil Kureshi, J.@mdashA short but important question of law is involved in this petition namely, whether in the revision application filed by the original complainant against the order of Magistrate accepting the report of the police pursuant to inquiry u/s 202 of the Code of Criminal Procedure to drop the proceedings, it is necessary to hear the accused before the Court can allow such revision petition.
2. Facts of the case are as follows:
2.1 Respondent No. 1 herein had filed complaint before the Court of Metropolitan Magistrate on 2.2.2006 alleging offences punishable under Sections 420, 406, 506 read with Section 120-B of the IPC against present petitioners. In the said case. registered as Inquiry case No. 3/2006 learned Magistrate by his order dated 2.2.2006 called for police inquiry u/s 202 of the Code of Criminal Procedure by the Satellite police station directing the police to file a report upon completion of such inquiry.
2.2 Police filed its report dated 2.5.2006 and concluded as under :-
Thus upon overall consideration, there appears to be financial transactions between the complainant firm and the firm on the other side. Complainant firm has to recover unpaid dues of Rs. 1,66,40.200/- for which a cheque dated 15.12.2004 No. 32335 of UTI bank were issued by the opponent firm in favour of the complainant firm which cheque was not encashed with endorsement "insufficient funds" made on 10.3.2005. These are evidences on record. Record of transactions of other properties have also been produced. Papers of inquiry from page 1 to 164 are enclosed herewith for further necessary action
In short opinion of the police was that no offence is made out.
2.3 Learned Magistrate after issuing notice to respondent No. 1 original complainant and giving opportunity of hearing, passed order dated 5.5.2007 and concluded that the complaint was lodged after registering of FIR against the complainant under Sections 409, 419, 420, 34 of IPC at Vankola Police Station, Santa Cruze, Mumbai in which investigation is going on and with respect to financial transactions also there is no substance in the present complaint. He therefore, ordered dismissal of the complaint
2.4 Respondent No. 1 aggrieved by the said order of the learned Magistrate dated 5.5.2007 filed Criminal Revision Application No. 198/2007 before the learned Additional Sessions Judge, Ahmedabad. Learned Judge by his impugned order dated 7.1.2008 allowed the revision application and set aside the order of Magistrate dated 5.5.2007 in Inquiry Case No. 3/2006. Learned Judge was of the opinion that inquiry was conducted by the police in a most casual manner. Following final order was passed:
The revision application succeeds and is hereby allowed. The impugned order dated 05-02-2007 of the Ld. Metropolitan Magistrate, Court No. 20, Ahmedabad below Exh. 1 in Inquiry Case No. 3/2006 is hereby quashed and set aside.
The Police Inspector, Satellite Police Station is directed to inquire into the complaint in light of the observations made in paragraph No. 6 and submit report within 30 days from the date of receipt of this order to the Ld. Trial Magistrate. Ld. Trial Magistrate is directed to consider the report on its own merits without being influenced by this order.
R.&.P. be transmitted to the trial Court forthwith
2.5 It is this order dated 7.1.2008 passed by the learned Sessions Judge which the petitioners have challenged in this petition.
3. Counsel on either side confined their submission on only one issue namely, whether learned Additional Sessions Judge could have allowed the Revision Application without hearing the petitioners.
4. Counsel for the petitioners vehemently contended that the learned Magistrate had dismissed the complaint. When revision application was being heard against such an order, it was therefore, necessary that the petitioners against whom such complaint was filed should be given hearing. He drew my attention to provisions contained in Section 397 and 399 of the Code of Criminal Procedure to contend that such hearing was necessary.
4.1 In support of his contention he relied on following decisions:
In the decision of Delhi High Court in case of
14. Before however, parting with this case I may note that while going through the record of the Additional Sessions Judge''s Court I have found that in the revision petition no notice was issued to the petitioner herein, R.P. Sablok. The order sheet shows that the impugned order was passed after hearing only the complainant''s: Counsel.
15. Mr. Tiger Singh, learned Counsel for respondent Smt. Kaushlya Devi submitted at the bar that as the revision petition was directed against the order of dismissal of the complaint, no notice was sent to the petitioner herein who had been named as an accused. According to him in such like revision petitions the Sessions Courts do not issue notice and only the Counsel for the petitioner or the Public Prosecutor is heard and while deciding them.
16. This practice of not sending notice of the revision petition to the person who is likely to be prejudiced by any order to be passed by the Court is not in accordance with law. It appears to me that the amended provision of sub-section (2) of Section 401 of the Criminal P.C. 1973. was not brought to the notice of the learned Additional Sessions Judge. The said sub-section reads as follows:
(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.
Under Section 399 of the Code a Sessions Judge exercises the same powers as the High Court u/s 401 of the Code. Sub-Section (2) of Section 399 of the Code specifically lays down "Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3)(4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
17. It is thus clear that it is mandatory for the Sessions Judge while exercising his powers of revision not to make any order which would prejudice the accused or other person unless he had been given an opportunity of being heard.
2) In the decision of Rajasthan High Court in case of Jeet Singh v. State of Rajasthan reported in 1994-Crimes-3-540. Facts in the said case were that the judicial Magistrate before whom the complaint was filed refused to take cognizance against the accused by accepting the police report and rejecting the protest petition of the complainant. Complainant approached the Sessions Court against decision of the Magistrate. Learned Additional Sessions Judge set aside order of the Magistrate and remanded the matter back for fresh consideration without hearing the accused. They thereupon approached Rajasthan High Court in which the learned Judge opining that the Sessions Court committed an error, eventually passed following order:
12. In this view of the matter I think that the order passed by the learned Additional Sessions Judge deserves to be set aside and this case is remanded back to him to hear the petitioner and the other side and thereafter pass an appropriate order in accordance with law. In the result, this petition is allowed, as indicated above.
3) In decision of Bombay High Court. Nagpur Bench in case of Suresh S/o. Latari Ramteke v. State of Maharashtra and anr. reported in (2003) 105 Horn. L. R. 9, also, similar: issue had arisen. Magistrate had dismissed the complaint u/s 203 of the Code of Criminal Procedure. Against such an order. Revision Petition was filed before the Sessions Court by the complainant. In such revision application, accused filed application seeking permission to take part in the proceedings. Such application was rejected by the learned Additional Sessions Judge which order was challenged before the Bombay High Court. Petition was allowed making following observations:
10. In the present case, admittedly, the petitioner was an accused in the complaint case filed by the respondent No. 2 and, therefore, it was necessary for the learned Ad hoc Sessions Judge to consider this aspect of the matter and allow the request made by the petitioner for permitting him to take part in the proceedings of Criminal Revision No. 71/00. It appears that the learned Sessions Judge has lost sight of this important aspect of the matter and without considering the aforesaid provisions, has rejected the application filed by the petitioner for permitting him to take part in the said proceedings and, therefore, the impugned order passed by the learned Ad hoc Sessions Judge, in my opinion, cannot be sustained in law and it needs to be quashed and set aside.
4) In decision of Aurangabad Bench in case of Shrlram Nagordhar Mahajan & Ors. V. State of Maharashtra & anr. in Criminal Application No. 95/2006 decided on 23.2.2006, wherein private complaint was filed before Judicial Magistrate First Class for various offences punishable under Sections 395, 307, 143, 147, 149, 323, 425, 426, 427, 504, 506, 341, 120(B) and 34 of the IPC who dismissed the same. Original accused were not joined as respondents in the Revision Application filed by the complainant. Learned Sessions Court thereupon directed issuance of process u/s 395 of the IPC. At that stage, accused approached High Court challenging the decision of the Sessions Court. Petition was allowed making following observations:
18. In that view of the matter, the order passed by the learned revisional Court was patently in violation of the mandate of sub-section(2) of Section 401 of the Code of Criminal Procedure It is to be noted that in Section 439(2) of the Old Criminal Procedure Code of 1898, the only word used was "the accused". The words, "''or other persons" are mentioned for the first time in the Criminal Procedure Code of 1973. It can thus be clearly seen that the legislative intent of introducing the words "or any other person" also appear to give an opportunity of being : heard to any person who is likely to be prejudicially affected by the order of the revisional Court. This appears to be necessary for advancement of the cause of justice and in consonance with the: principles of natural justice. I have, therefore, no hesitation to hold that before the order is passed to the prejudice of any person, it is necessary for the Revisional Court to hear him in view of the provisions of sub-section(2) of Section 401 of the Code of Criminal Procedure.
5) In decision of Bombay High Court in case of Bomab Rustom Irani v. State of Maharashtra & anr. reported in 2007(1) Bom C.R. (Cri.) 656 where also similar view was taken by the Learned Single Judge holding as under:
14. In view of the judgments to which my attention is drawn by Mr. Ponda and in the light of the relevant provisions of the Code to which reference is made by me hereinabove I set aside the impugned order dated 12th October. 2006 passed by the learned Sessions Judge in Revision Application No. 774 of 2006 qua the petitioner. I direct the learned Sessions Judge to give a hearing to the petitioner or his Counsel. The learned Sessions Judge shall hear the matter afresh and pass appropriate orders in accordance with law.
6) In case of
22. Here however, the learned Magistrate had taken cognizance. He had applied his mind. He refused to exercise his jurisdiction u/s 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.
5. On the other hand learned Counsel Shri S.V. Raju appearing for original complainant opposed the petition contending that no prejudice is caused to the petitioners since at this stage they do not have a right to be heard on question whether process should be issued against them or not. He relied on the following decisions:
1) In case of V.C. Shukla v. State (Delhi Administration) reported in 1980 SCC 249, wherein the Apex Court in the context of a right of a person to be heard on the question of granting sanction for prosecution observed that
It is only after sanction is accorded that an accused is brought to trial or proceedings are started against him when he is to be heard and can challenge the validity of sanction. Similarly, when a first information report is filed before a police officer. the law does not require that the officer must hear the accused before recording it or submitting a charge-sheet to the Court. Another instance is to be found where a complaint is filed before a Magistrate who chooses to hold and inquiry u/s 202 of the Code of Criminal procedure before issuing process or summons to the accused. It has been held in several cases that at that stage the accused has to no locus to appear and file his objections to the inquiry. The right of the accused to be heard comes into existence only when an order summoning the accused is passed by the magistrate u/s 204 of the Code of Criminal Procedure. In case of Cozons v. North Devon Hospital, management Committee. Lord Salmon pithily observed:
No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused.
2) In case of
11. In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the magistrate with such an obligation.
3) In case of
4) In case of
4. It would thus be clear from the two decision of this Court that the scope of the inquiry u/s 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; (is) 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 u/s 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.
5) In decision of Delhi High Court in case of Prakash Devi & Ors. v. Stale of Delhi and anr in Crl.M.C. No. 2626/ 2009 decided on 5.2.2010, wherein Delhi High Court was examining similar question which was framed in following manner :
6. The short issue that requires consideration in the present case is that:-
Whether the person named as an accused in the complaint case is entitled to a hearing by the revisional Court u/s 401(2) of the Code of Criminal Procedure where such a complaint has been dismissed by the Magistrate u/s 203 Cr. P.C?
Relying on several decisions of the Apex Court as well as High Court decisions, it was held that Sessions Court committed no error in allowing the revision application without hearing the accused and remanding the proceedings to the Magistrate for fresh consideration since complaint was dismissed without examining the complainant and any witnesses.
6. Before interpreting the statutory provisions involved, we may take note of such relevant provisions.
24. Sub-Section(1) of Section 397 of the Code of Criminal Procedure pertains to powers of High Court or Court of Sessions to call for and examine the record of any proceedings of inferior Court.
Sub-Section(2) of Section 397 provides that powers of revision under sub-section(1) shall not be exercised in relation to any interlocutory order.
Sub-Section(3) of Section 397 further provides that further revision before the High Court shall not be maintainable at the instance of a person who had approached the Sessions Court in the revision petition.
Section 397 of the Code of Criminal Procedure reads as follows :--
397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.-All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- Section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
25. Section 398 of the Code of Criminal Procedure pertains to powers of High Court or Court of Sessions to order inquiry into any complaint which has been dismissed u/s 203 or sub-section(4) of Section 204 or into the case of any person accused of an offence who has been discharged. Proviso to Section 398 in particular, provides that no Court shall make any direction under the said Section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. Section 398 reads as follows :-
398. Power to order inquiry. On examining any record u/s 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed u/s 203 or sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged:
Provided that no Court shall make any direction under this Section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made
26. Section 399 of the Code of Criminal Procedure pertains to Sessions Judge''s powers of revisions and reads as follows :-
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 sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections 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 an 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.
27. Similarly Section 401 of the Code of Criminal Procedure pertains to High Court''s power of revision and reads as follows :-
401. High Court''s Powers of revisions. (1) In the case of any proceeding the record of which has been called for by itself or Which otherwise conies 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 989 so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
7. Sub-Section(2) of Section 399 of the Code of Criminal Procedure provides that in proceedings of revision before a Sessions Judge under sub-section(1), provisions of subsections(2),(3),(4) and (5) of Section 401 shall apply as if references to the High Court in the said sub-sections shall be construed as references to the Sessions Judge. Sub-Section(2) of Section 401 provides that no order under the said 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 defence.
8. Thus by virtue of sub-section(2) of Section 399, the procedure provided under sub-section(2) of Section 401 of the Code of Criminal Procedure for the High Court to consider revising an order under sub-section(1) of Section 401 shall also apply to the Sessions Court while seeking to exercise such powers under sub-section(1) of Section 399. In other words, the requirement that High Court cannot pass any order u/s 401 of the Code of Criminal Procedure to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader, shall also apply to a Court of Sessions while exercising such revisional powers under sub-section(1) of Section 399. This much is basic.
9. Question however, is whether the Court i.e. Court of Sessions or High Court while considering the legality of an order passed by the Magistrate dropping inquiry u/s 203 of the Code of Criminal Procedure and even while reversing any such order can be said to be passing an order to the prejudice of the accused.
10. Sub-Section(2) of Section 401 proceeds on one of the basic principles of natural justice that no order to the prejudice of a person can be passed without hearing. We are however, concerned with a situation where order of the Magistrate is interfered with by the Court of Sessions and the question is whether such decision can be stated to be prejudicial to the accused.
11. Answer to this question is to be searched from the provisions of the Code as interpreted by various Courts including the Apex Court.
Term prejudice has not been defined under the Code. The Law Lexicon by P Ramanatha Aiyar. explains the term "prejudice" as having injurious effect, injury to or impairment of a right, claim, statement, etc.
12. In Webster''s Third New International Dictionary (unabridged), term "prejudice" has been explained as injury or damage due to some judgment or action of another, injury in general.
13. As held in case of Sri Bhagwan Samardha Sreepada Vallahha Venkata Vishwanandha. Maharaj(supra), it is by now well settled that at the stage of investigation or further investigation, the accused has no say in the matter and the Court is not obliged to hear the accused before any such direction can be made.
14. In case of Smt. Nagawwa (supra), as already noted the view of the Apex Court was that scope of inquiry u/s 202 of the Code of Criminal Procedure is extremely limited, only to ascertaining of truth or falsehood of the allegations made in the complaint and at that stage 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.
15. In case of Adalat Prasad (supra), the Apex Court in context of powers of Magistrate to dismiss the complaint after he has decided to issue process u/s 204 of the Code of criminal Procedure, held and observed as under :
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 u/s 204 of the Code. Therefore what is necessary or a condition precedent for issuing process u/s 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated u/s 202 that there is sufficient ground for proceeding with the complaint hence issue the process u/s 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''s case 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 u/s 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 u/s 203 of the Code for 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.
12. From the above judicial pronouncements it can be culled out that at a stage when Magistrate is holding an inquiry u/s 202 of the Code of Criminal Procedure and deciding for himself what further action should be taken, accused has no role to play, has no right of audience. It is on the basis of materials on record that the Magistrate would proceed either to dismiss the complaint u/s 203, if he is of the opinion that there is no sufficient ground for proceeding or would issue process u/s 204 if he was of the opinion that such material was available. If the higher Court i.e. the Court of Sessions or High Court is examining the legality of an order passed by the Magistrate dismissing the complaints u/s 203 of the Code of Criminal Procedure, question germane would be whether the Magistrate was justified in coming to the conclusion that there is no sufficient grounds for proceeding. In other words Court would be examining the justification of such a conclusion of the Magistrate. If the Court concurs with such decision of the Magistrate, order would be upheld. If the Court finds that Magistrate committed an error, order u/s 204 may ensue. Essentially therefore, all that the scope of inquiry in revision application of such a nature would be whether there was a case as held by the Magistrate for dropping proceeding u/s 203 or for issuance of process contrary to what was concluded by the learned Magistrate. I fail to see if accused was not entitled to be heard when the Magistrate passed such an order how he can claim a right of audience when higher Court examines legality of such an order. To put it differently, if learned Magistrate was of the opinion that there were sufficient grounds to issue process u/s 204 surely, accused had no right to be heard before such order was passed. All that the higher Court would do if it disagreed with the view of the learned Magistrate would be to pass such orders which in any case Magistrate could himself have passed without hearing the accused.
13. Issue can be looked from slightly different angle. As already observed, sub-section(2) of Section 401 requires the accused or other person to be given an opportunity of being heard in case the Court proposes to pass an order to the prejudice of such person. It is this requirement of sub-section(2) of Section 401 which has been incorporated in sub-section(2) of Section 399 insofar as Sessions Court is considered. Fundamental question is if the Court of Sessions was reversing the order of Magistrate dropping proceedings u/s 203 and instead issued process u/s 204 on private inquiry would that be an order to the prejudice of the accused?
14. In view of judicial pronouncements noted above, I am of the opinion that no such requirement can be read since I find that till the Magistrate crosses the stage u/s 204 of the Code of Criminal Procedure, he cannot be sated to passing any order to the prejudice of accused. Any order passed by the higher Court in revisional powers therefore, necessarily would not be covered by said apprehension.
15. I am conscious that judicial opinion on this issue is not unanimous. Several High Courts have taken a different view from what 1 have adopted and view of number of High Courts surely carries a considerable persuasive value for me. However. I also find that some other High Courts notably Delhi High Court in case of Prakash Devi & Ors. (supra), has taken contrary view with which I concur. For the reasons stated above, I am unable 10 persuade myself to adopt view of Bombay High Court in case of Shriram Nagordhar Mahajan & Ors. (supra) and other similar decisions. I find myself in respectful agreement with decision in case of Delhi High Court in case of Prakash Devi & Ors. (supra).
16. In the result, I do not find that Sessions Court breached any statutory requirement while allowing the revision application of respondent No. 1 herein and interfering with the order passed by the Magistrate by which proceedings were dropped against the present petitioner.
17. It is clarified that since both sides have argued only on one single point of no notice to the petitioners before the Sessions Court passed impugned order, I have not examined or opined on any other aspects of the matter leaving it open to the parties to raise their contentions before appropriate forum.
18. With above observations and directions, petition is disposed of.
