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2013 DIGILAW 713 (GUJ)

Radhelal Hiralal Nimavat v. State of Gujarat

2013-12-05

A.G.URAIZEE

body2013
JUDGMENT : A.G. Uraizee, J. Heard Mr. Y.H. Motiramani, learned counsel for Mr. Divyesh Nimavat, learned counsel for the petitioners, Mr. Neeraj Soni, learned Additional Public Prosecutor for the State and Mr. Bhavesh Trivedi, learned counsel for Respondent No.2 – original complainant. 2. Shorn of unnecessary details, the facts giving rise to the present petition are that Respondent No.2 filed criminal complaint being Criminal Enquiry Case No.17 of 2003 in the court of the learned Judicial Magistrate First Class, Gondal on 25th October 2005 against the present applicants for the offences punishable under Sections 465, 467, 468, 471, 420 and 114 of the Indian Penal Code ('the I.P.C.', for short) for getting revenue entries mutated in the revenue records as the legal heirs and representative of deceased Hiradas Govindram along with legal heirs and representatives of other deceased owners. The learned Magistrate kept the complaint for enquiry under Section 202 of the Code of Criminal Procedure, 1973 ('the Code' for short) and after recording the statement of Respondent No.2 and other witnesses was pleased to dismiss the complaint under Section 203 of the Code by his order dated 10th May 2003. Respondent No.2, feeling aggrieved by the order dismissing his complaint, preferred revision application being Criminal Revision Application No.21 of 2004 in the court of the learned Presiding Officer, Fast Track Court, Gondal. The Revision Application was allowed vide order dated 30th September 2005 whereby order dated 20th February 2004, passed in Criminal Enquiry Case No.17 of 2003 came to be quashed and the learned Magistrate was directed to take cognizance of the complaint. The learned Magistrate took cognizance of the complaint and ordered to issue process against the present petitioners. Therefore, the petitioners have approached this Court under Section 482 of the Code for quashing the complaint being Criminal Case No.1741 of 2005. 3. Mr. Bhavesh Trivedi, learned counsel for Respondent No.2 – original complainant and Mr. Neeraj Soni, learned Additional Public Prosecutor on the one hand and Mr. Y.H. Motiramani, learned counsel for Mr. Divyesh Nimavat, learned counsel for the petitioners on the other hand are not in conflict so far as the fact that the petitioners were not arrayed as opponents in Revision Application No.21 of 2004 and thereby they were denied the opportunity of hearing. At this juncture, it would be apposite to refer to some provisions of the Code concerning complaints to Magistrates. At this juncture, it would be apposite to refer to some provisions of the Code concerning complaints to Magistrates. Section 200 of the Code contemplates examination of the complainant by the Magistrate taking cognizance of an offence. The relevant part of said Section reads as under:" "Sec.200. 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:" Thus, it could be seen from the above provision that the moment the Magistrate examines the complainant and the witnesses present, if any, upon oath it amount to application of judicial mind to the allegations made in the complaint and it amounts to taking cognizance of the offence. After taking cognizance of offence, the Magistrate concerned has two options before him. The first option is to straightaway issue process against the accused. But, if the Magistrate taking cognizance of the offence feels that he further wants to satisfy himself as to sufficiency of ground for proceeding against the accused, he can postpone the issue of process against the accused and resort to the provisions of Section 202 of the Code. The relevant portion of Section 202 of the Code is extracted below: "Sec. 202.(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 whet or not there is sufficient ground for proceeding." The above provision of Section 202 reveals that after taking cognizance of the offence, the Magistrate has two options to satisfy himself whether there is sufficient material to proceed against the accused or not. For this purpose, under Section 202(1) the Magistrate can enquire into the cases himself or direct an investigation to be made by the Police Officer or by such other person as he thinks fit. It is well settled by now by catena of decisions that the scope of enquiry contemplated under Section 202(1) by the Magistrate is extremely limited because, such an enquiry either by the Magistrate himself or on investigation to be made by the Police Officer is for the purpose of ascertaining what truth or falsehood of the allegations made in the complaint. During such an exercise by the Magistrate, the accused has got absolutely no locus standi and he is not entitled to be heard on the question whether the process should be issued against him or not. Therefore, the Magistrate has to take cognizance first and thereafter to examine the complainant. After completion of exercise of under Section 202(1) of the Code, if the Magistrate is satisfied and is of the opinion that there is sufficient ground for proceeding against the accused, he shall issue process against the accused persons, but if the Magistrate is of the opinion that there is no sufficient ground for proceeding against the accused, provisions of Section 203 of the Code come into play. Section 203 of the Code is extracted herein below: "Sec. 203. If, after considering the statements on oath (if any) of the complainant and of the witnesses 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." Respondent No.2 – original complainant had challenged order dated 10th May 2003 passed by the learned Magistrate dismissing the complaint under Section 203 by preferring Revision Application No.26 of 2004 without arraying the present applicants as the respondents. The Honourable Supreme Court in the case of Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel & Ors., (2012) 10 SCC 517 has examined the legal position governing the proceedings under Section 202 of the Code and the locus standi of the accused in the Revision Application preferred against an order passed by the Magistrate dismissing the complaint under Section 203 of the Code. The relevant observations of the Honourable Supreme Court are extracted as under: "46 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. "53 We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. 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. 4. As per the settled proposition of law, as enunciated by the Honourable Supreme Court in the case of Manharibhai (supra) right of being heard was accrued in favour of the present applicants as the order dated 10th May 2003 dismissing the complaint was in their favour. The order of the learned Magistrate dismissing the complaint under Section 323 of the Code was subject matter of Revision Application No.21 of 2004 wherein the applicants were required to be arraigned as is required under Section 401(2) of the Code, but the applicants were not afforded an opportunity of hearing by the revisional court while upsetting the order of the learned Magistrate whereby the complaint filed by Respondent No.2 came to be dismissed under Section 203 of the Code. 5. In view of the above settled position of law, the order passed in Criminal Revision Application No.26 of 2004 cannot be sustained and resultantly the order of the learned Magistrate issuing the process pursuant to the order passed in revision application also becomes vulnerable. In the result, the present application is allowed and the order dated 30th September 2005 passed in Criminal Revision Application No.21 of 2004 is hereby quashed and set aside and as a natural corollary, the order of the learned Magistrate issuing the process against the respondents in Criminal Case No.1741 of 2005 is also quashed and set aside. In the result, the present application is allowed and the order dated 30th September 2005 passed in Criminal Revision Application No.21 of 2004 is hereby quashed and set aside and as a natural corollary, the order of the learned Magistrate issuing the process against the respondents in Criminal Case No.1741 of 2005 is also quashed and set aside. The matter is remanded to the Court of the learned Additional Sessions Judge, Gondal for fresh hearing. Respondent No.2 is directed to implead the present applicants as the respondents in the said Criminal Revision Application. The learned Additional Sessions Judge shall decide the revision application after affording the opportunity of hearing to the petitioners and respondent No.2 in accordance with law. It is clarified that this Court has not gone into the merits nor has expressed any opinion on the merits of the case. The litigation between the parties is old and it is expected that the learned Additional Sessions Judge will give priority to the revision application subject to other old matters pending on his file. Rule is made absolute with no order as to costs. Application allowed.